Court of Appeals of Texas, Sixth District, Texarkana
Submitted: October 16, 2017
Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 16-0004X
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III Chief Justice
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.
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. 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. The relevant portions of the charge are as
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
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
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
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.However, the State contends that
Kirkland was never entitled to an instruction on temporary
insanity 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).
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.
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.
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. 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.
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 ...