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Kirkland v. State

Court of Appeals of Texas, Sixth District, Texarkana

November 15, 2017

MARILYN MARCHE KIRKLAND, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted: October 16, 2017

         On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 16-0004X

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Josh R. Morriss, III Chief Justice

         After Marilyn Marche Kirkland admitted to having murdered Clinton Wayne Saizon in late 2015 by shooting him once in the chest with a handgun, the question of Kirkland's punishment and the bizarre facts of her case were submitted to a Harrison County jury. After a two-day punishment trial, the jury assessed Kirkland's punishment at forty years' imprisonment, as requested by the State. Though Kirkland had requested, and had been given, a jury instruction on temporary insanity by reason of voluntary intoxication, the instruction as given had improperly required her to prove such insanity beyond a reasonable doubt before the jury was authorized to consider that in assessing punishment. On appeal, Kirkland contends (1) that she suffered egregious harm from that erroneous jury instruction and (2) that it was error not to grant a mistrial based on allegedly improper comments made by the State. Because we find the erroneous jury instruction resulted in egregious harm, we reverse the trial court's judgment and remand this case for a new trial on punishment.

         Saizon's body was found in his "camper-trailer, travel-trailer" in the presence of drug paraphernalia described as "pipes used for smoking methamphetamine and also some syringes used commonly to inject methamphetamine." Four days after Saizon's body was found, Kirkland gave a voluntary statement to the Waskom Police Department, which statement included a confession that she had shot Saizon.[1] Based on her statement, Kirkland was arrested and subsequently indicted for Saizon's murder.

          Kirkland contends the trial court erred in the way it charged the jury as to temporary insanity by voluntary intoxication.[2] The relevant portions of the charge are as follows:

You are further instructed that in determining the Defendant's punishment, you may take into consideration all of the facts shown by the evidence submitted before you in the full trial of this case and the law as submitted to you in this charge.
You are instructed that under our law neither intoxication nor temporary insanity of mind caused by intoxication shall constitute a defense to the commission of the crime. Evidence of temporary insanity caused by intoxication should be considered in mitigation of the penalty, if any, attached to the offense.
By the term "intoxication" as used herein is meant disturbance of mental or physical capacity resulting from the introduction of any substance into the body.
By the term "insanity" as used herein is meant that as a result of intoxication the defendant did not know that her conduct was wrong.
Now, if you find from the evidence beyond a reasonable doubt that the defendant, Marilyn Marche Kirkland, at the time of the commission of the offense for which she is on trial was laboring under temporary insanity as defined in this charge, produced by voluntary intoxication, then you may take such temporary insanity into consideration in mitigation of the penalty which you attach to the crime.

(Emphasis added). Specifically, Kirkland contends that the trial court's error in including the "beyond a reasonable doubt" language was "unprecedented and egregiously harmed [her] ability to present a defensive theory."

         Our review of an alleged jury charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we determine whether error occurred and then "determine whether sufficient harm resulted from the error to require reversal." Id. at 731- 32); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The level of harm that must be shown as having resulted from the erroneous jury instruction depends on whether the appellant properly objected to the error. Abdnor, 871 S.W.2d at 732. When a proper objection is made at trial, a reversal is required if there is "some harm" "calculated to injure the rights of defendant." Id. As in this case, however, when the defendant fails to object to the charge, we will not reverse the jury-charge error unless the record shows "egregious harm" to the defendant. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza, 686 S.W.2d at 171). In determining whether the error caused egregious harm, we must decide whether the error created such harm that the appellant did not have a "fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171; Boones v. State, 170 S.W.3d 653, 660 (Tex. App.-Texarkana 2005, no pet.).

         The State concedes, and we agree, that it was error to include in the jury charge the requirement that Kirkland prove beyond a reasonable doubt that she suffered from temporary insanity by reason of voluntary intoxication at the time of the commission of the offense.[3]However, the State contends that Kirkland was never entitled to an instruction on temporary insanity[4] and that, even if she was, the erroneously worded instruction did not rise to the level of egregious harm. Jury charge error is considered egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Almanza, 686 S.W.2d at 172. We are required to consider (1) the entire jury charge, (2) the state of the evidence, (3) the parties' arguments, and (4) any other relevant information shown in the record of the trial as a whole. Id.; see also Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996); Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).

          The larger frame for our determination is set by the fact that Kirkland had entered a plea of guilt to the murder and had placed her fate on the jury's assessment of her punishment. While the State painted the victim as positively as possible and Kirkland as negatively as possible, and the defense tried to do the converse, the two principal defense strategies were to try to establish that Kirkland would not likely be dangerous in the future and that, at the time of the offense, she was delusional due to her use of methamphetamine, clearly seeking to cause the jury to reduce her sentence based on Kirkland's temporary insanity caused by voluntary intoxication.

         Here, the jury charge consisted of four pages and contained a single heading, entitled "General Principles." The majority of the trial court's instructions were general in nature, with the exception of the complained-of paragraph. The erroneous instruction lay at the center of Kirkland's only real structural defensive issue, was the only paragraph applicable directly to Kirkland, and incorrectly placed a specific, heightened burden of proof on her.

         Unless there is contrary evidence, we must presume that the jury followed the instructions set out in the charge. Hutch, 922 S.W.2d at 170; see White v. State, 395 S.W.3d 828, 839 (Tex. App.-Fort Worth 2013, no pet.). Since we find no evidence that the jury actually considered temporary insanity due to voluntary intoxication in assessing Kirkland's sentence-in fact assessing her exactly the forty years the State requested in both its opening and closing argument- we must conclude that the jury did not consider any lesser sentence as a result.[5] The question this raises is whether, but for the erroneous instruction, Kirkland had a real chance for the jury to lessen her sentence based on this defensive claim. Based on our evaluation of the arguments and the evidence, we conclude that she did and that, therefore, she was egregiously harmed by the erroneous instruction.

         During its opening argument, the State argued that Kirkland decided to sacrifice her victim. By contrast, Kirkland's opening argument discussed, among other things, her mental illness and her drug addictions, as well as her turning to drugs after being abused and raped. The defense's opening argument also referred to her delusion that the victim may have been demonic. Kirkland's opening argument pointed out her delusions and claimed that the shooting was a result of her delusions. Kirkland explained ...


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