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Walter v. State

Court of Appeals of Texas, Eleventh District

August 30, 2019

VIOLET MAREE WALTER, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 42nd District Court Callahan County, Texas Trial Court Cause No. 7137

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [6]

          OPINION

          JOHN M. BAILEY CHIEF JUSTICE

         At the conclusion of a joint trial, the jury convicted Appellant, Violet Maree Walter, and her husband, Phillip Jay Walter, Jr., of murder, robbery, and theft of a firearm.[1] See Tex. Penal Code Ann. §§ 19.02, 29.02, 31.03 (West 2019). The trial court assessed Appellant's punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for forty years for the murder conviction and for twenty years for the robbery conviction. The trial court also assessed Appellant's punishment at confinement in the State Jail Division of the Texas Department of Criminal Justice for a term of two years for the conviction for theft of a firearm. Additionally, the trial court ordered that the sentences are to run concurrently.[2] Appellant challenges her convictions in seven issues on appeal. We affirm.

         Background Facts

         Don Allen, a police officer with the Abilene Police Department, was found dead at his home in Clyde on August 31, 2015. Approximately one week before his death, Allen placed an advertisement on Craigslist seeking an unconventional sexual encounter. Appellant responded to Allen's post on August 29, 2015, writing: "Still looking? Sexy couple in their 20s. . . . Down for anything." For the next couple of days, Appellant and Allen e-mailed each other about the prospect of a sexual encounter between Appellant, Allen, and Walter. Eventually, Allen invited Appellant and Walter to his home in Clyde on the afternoon of August 31.

         That evening, Allen's fiancée found Allen dead in their bedroom, lying facedown on the floor. Allen was wearing only a T-shirt and socks; he was otherwise naked. His hands and ankles had been bound by USB cords, with his hands tied behind his back. Another USB cord, along with Allen's shorts, was loosely wrapped around Allen's face and neck. There was no evidence of forced entry or a struggle inside the home.

         One of Allen's neighbors told investigators that he saw a male and a female arrive at Allen's home that afternoon. Another one of Allen's neighbors saw a vehicle near Allen's home. The neighbor provided the police with the vehicle's make, color, and model. Investigators discovered that Walter owned a vehicle similar to the vehicle seen near Allen's home.

         Video surveillance from a pawn shop in Abilene showed Walter, accompanied by Appellant, pawning four video games and a woman's bracelet on the evening of August 31. The same four video games had been recently played on Allen's video game console, and Allen's fiancée identified the pawned bracelet as her bracelet. Investigators also identified Walter's fingerprint on a water bottle at Allen's home.

         Appellant and Walter were subsequently arrested. Police officers searched their apartment pursuant to a search warrant. In the apartment, the police found an Abilene Police Department badge, a Taser, handcuffs, and an ASP case that had been issued to Allen as an Abilene Police Officer. Allen's firearm was returned to police by a confidential informant, and Allen's police radio was found on the side of a highway, two miles east of Clyde.

         During the search of the apartment, the police also found Appellant's and Walter's cell phones. The police searched the phones pursuant to additional search warrants. Appellant's text messages to Walter revealed that they were experiencing financial difficulties at the time and were in the process of being evicted from their apartment. Appellant sent Walter several text messages on the day of Allen's death, urging Walter to do something to remedy their dire financial situation. For example, she sent Walter the following text messages on August 31: "Go f--k someone else and restore our s--t," "Hurry up and fix this," "DO SOMETHING NOW," and "You NEED to do this. Your fear of a police report versus LOSING us should be bigger. Your need to feed and house your CHILDREN should be bigger tha[n] ANYTHING."

         After Appellant set up the meeting with Allen at Allen's home in Clyde, Appellant texted Walter that "[w]e have that Clyde lick," "[w]e MUST do it and do it hard," and "[t]he lick is waiting." The State presented evidence that a "lick" refers to robbery or thievery.

         During closing argument, Appellant and Walter argued that Allen consented to being choked and that he died during "high-risk sex." To support this theory, the defense stressed the state in which Allen's body was found and the lack of any evidence indicating a struggle or resistance to the USB cables around his wrists or ankles.

         Analysis

         Appellant challenges her convictions in seven issues on appeal. Specifically, she asserts that (1) the trial court abused its discretion by admitting text messages from her cell phone over her objections that the evidence was irrelevant, unfairly prejudicial, and inadmissible character evidence; (2) the trial court erred by admitting three deleted text messages over her authenticity objection; (3) the trial court abused its discretion by admitting text messages over her Confrontation Clause objection; (4) the trial court abused its discretion by denying her motion for continuance; (5) the trial court abused its discretion by denying her second motion for continuance; (6) the State's evidence was insufficient to convict her of murder and robbery; and (7) the trial court erred by submitting a jury instruction on the law of parties.

         Sufficiency of the Evidence

         In her sixth issue, Appellant contends that the State's evidence was insufficient to convict her of murder and robbery. We review a challenge to the sufficiency of the evidence, regardless of whether it is denominated as a legal or factual sufficiency challenge, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.-Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

         When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

         To determine whether the State has met its burden under Jackson to prove a defendant's guilt beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See id. When, as here, the court's charge authorized the jury to convict the defendant on more than one theory, the verdict of guilt will be upheld if the evidence is sufficient on any theory authorized by the charge. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)).

         The indictment charged Appellant with murder under all three statutorily defined ways to commit the offense. See Penal § 19.02(b)(1)-(3). Under these statutory provisions, a person commits the offense of murder if he (1) "intentionally or knowingly causes the death of an individual," (2) "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual," or (3) "commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." Id. These three methods of committing murder are not separate offenses but, rather, are alternative methods of committing the same offense. Smith v. State, 436 S.W.3d 353, 378 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd).

         Under Section 19.02(b)(1), the indictment alleged that Appellant intentionally or knowingly caused Allen's death by asphyxiation by choking, strangling, or otherwise impeding his breathing. Under Section 19.02(b)(2), the indictment alleged that Appellant committed an act clearly dangerous to human life by choking, strangling, or otherwise impeding Allen's breathing with the intent to cause serious bodily injury. Under Section 19.02(b)(3), the indictment alleged that Appellant committed or attempted to commit robbery or felony theft and that, in the course of and in furtherance of the commission or attempt, she committed an act clearly dangerous to human life by choking, strangling, or otherwise impeding Allen's breathing. See Penal § 29.02 (robbery statute); Penal § 31.03(e)(4)(C) (theft of a firearm is a state jail felony). When an indictment alleges multiple felonies in a prosecution under Section 19.02(b)(3), the specifically named felonies are not elements about which the jury must be unanimous. White v. State, 208 S.W.3d 467, 469 (Tex. Crim. App. 2006).

         In addition to charging Appellant under multiple theories of murder, the court's charge allowed the jury to convict Appellant either as a primary actor or as a party with Walter. Under Section 7.01 of the Penal Code, "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Penal § 7.01(a) (West 2011); see Adames v. State, 353 S.W.3d 854, 862 (Tex. Crim. App. 2011). The court's charge permitted the jury to find that Appellant was criminally responsible for the conduct of Walter under Section 7.02(a)(2) of the Penal Code. See Penal § 7.02(a)(2). This statute provides that "[a] person is criminally responsible for an offense committed by the conduct of another if: . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id.; see Adames, 353 S.W.3d at 862.

         Appellant asserts that the evidence is insufficient to support a conviction for murder because the evidence offered at trial established that Allen's death was accidental in nature. Appellant asserts that Allen's death was accidental because Allen engaged in "consensual asphyxia." In presenting these arguments, Appellant is making a "collective" argument in the sense that she has not differentiated her alleged conduct from that of Walter's alleged conduct. Appellant is essentially asserting that neither she nor Walter could be convicted of murder based upon her contention of Allen's alleged consensual conduct leading to an accidental result. We disagree.

         Legal commentators have noted that consent is irrelevant in a murder prosecution in Texas. See George E. Dix & John M. Schmolesky, 43 Texas Practice Series: Criminal Practice & Procedure § 43.46 (3d ed. 2019) ("Consent is a criminal law chameleon. It is irrelevant in some crimes, like murder . . . ."). Section 22.06 of the Texas Penal Code provides a limited defense of consent to assaultive conduct-but only to the offenses of assault, aggravated assault, and deadly conduct. Penal § 22.06; see Dix & Schmolesky, § 43.46. The express language of Section 22.06 precludes consent as a defense if the conduct inflicts serious bodily injury. Penal § 22.06; see Miller v. State, 312 S.W.3d 209, 213 (Tex. App.- Houston [14th Dist.] 2010, pet. ref'd) ("The defense of consent is not available when the defendant threatens or inflicts 'serious bodily injury.'") (citing Penal § 22.06(a)(1)); Dix & Schmolesky, § 43.46. Furthermore, Professor LaFave notes that a "rough sex" defense to a murder prosecution has generally not prevailed. Wayne R. LaFave, 1 Substantive Criminal Law § 6.5(a) n.13 (3d ed. 2018) (referencing "inducement of erotic asphyxiation" and citing Cheryl Hanna, Sex is Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L. Rev. 239 (2001), and George E. Buzash, The "Rough Sex" Defense, 80 J. Crim. L. & Criminology 557, 563-68 (1989)). Thus, Appellant's assertion that Allen consented to being asphyxiated is irrelevant to our analysis.

         Furthermore, the Texas Penal Code does not provide a defensive theory of "accident." See Rogers v. State, 105 S.W.3d 630, 637 (Tex. Crim. App. 2003) (citing Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982)). As noted in Williams, "[t]here is no law and defense of accident in the present penal code, and the bench and bar would be well advised to avoid the term 'accident' in connection with offenses defined by the present penal code." 630 S.W.2d at 644.

         Appellant appears to be asserting that Allen's death was an accident because it was an unintended or unexpected result. As such, Appellant's contention that Allen's death was an accident is a challenge to the mens rea required for her murder conviction. See Rogers, 105 S.W.3d at 637-39; Williams, 630 S.W.2d at 644 (noting that, under the former Penal Code, "accident" described multiple defenses, including an unintended result). Appellant contends that the State's evidence does not show that she had the requisite mens rea to commit the offense of murder because the evidence shows that Allen's death was accidental and resulted from his participation in consensual erotic asphyxia.

         As noted previously, Appellant was charged with murder under all three statutorily defined ways to commit the offense. Under each of these provisions, the statutory focus, and, therefore, the gravamen of the offense, is causing the death of an individual. Fraser v. State, 523 S.W.3d 320, 328 (Tex. App.-Amarillo 2017, appellant's pet. ref'd, State's pet. granted). Thus, murder is a result-oriented offense-meaning that the proscribed conduct must have caused the death of the victim. Id.; see Martin v. State, 570 S.W.3d 426, 434 (Tex. App.-Eastland 2019, pet. ref'd).

         While the three ways to commit murder share a common gravamen, they proscribe different forms of conduct. Furthermore, each statutory method for committing murder has a different mens rea component. Under Section 19.02(b)(1), the mens rea element requires that the accused must have intentionally or knowingly caused the death of the victim. See Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). Thus, a conviction under Section 19.02(b)(1) requires an intent to cause death. As such, Appellant's contention that Allen's death was an accident would be relevant to a conviction under Section 19.02(b)(1) to the extent that it was an unintended result.

         Under Section 19.02(b)(2), the mens rea element requires only that the accused must have intended to cause serious bodily injury to an individual. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) (citing Lugo-Lugo v. State, 650 S.W.2d 72, 81-82 (Tex. Crim. App. 1983)[3]). Thus, Appellant's contention that Allen's death was an accident would not be relevant to a conviction under Section 19.02(b)(2) if there was a showing that Appellant intended to cause serious bodily injury to Allen.

         Murder under Section 19.02(b)(3) is known as "felony murder." See Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014). Felony murder is the commission of a killing while in the course of committing another felony, coupled with committing or attempting to commit an act "clearly dangerous to human life." Penal § 19.02(b)(3). Felony murder is an unintentional murder committed in the course of committing a felony. Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004). The State must prove the elements of the underlying felony, including the culpable mental state for that felony, but no culpable mental state is required for the murder committed. Lomax v. State, 233 S.W.3d 302, 306-07 (Tex. Crim. App. 2007). Thus, the plain language of the felony murder statute requires proof of the underlying felony, but it does not require any proof of an accompanying mental state with regard to either causing the death of another or committing an act clearly dangerous to human life. See id. at 307 & n.16. Thus, Appellant could have been convicted of felony murder under Section 19.02(b)(3) without a showing that she intended to kill Allen.

         Appellant also asserts that the evidence is insufficient to show that she and Walter caused Allen's death. In a murder prosecution, the State must prove beyond a reasonable doubt that the injuries inflicted by the defendant caused the death of the decedent. Reeves v. State, 101 S.W.2d 245, 246 (Tex. 1937); Martin, 570 S.W.3d at 434; Hutcherson v. State, 373 S.W.3d 179, 187 (Tex. App.-Amarillo 2012, pet. ref'd). Appellant appears to be asserting that Allen's consensual participation in risky behavior constituted a concurring cause that precluded her criminal responsibility for his death.

         "A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Penal § 6.04(a). Under Section 6.04, a "but for" causal connection must exist between the defendant's conduct and the resulting harm to find the defendant criminally responsible. Pena v. State, 522 S.W.3d 617, 624 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd). If a concurrent cause is present, two possible combinations exist to satisfy Section 6.04's "but for" requirement: (1) the defendant's conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause, or (2) the defendant's conduct and a current cause together may be sufficient to have caused the harm. Id. (citing Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986)). However, a defendant cannot be convicted if the concurrent cause is clearly sufficient, by itself, to produce the result and the defendant's conduct, by itself, is clearly insufficient. Id. Thus, if the injuries caused by the defendant contributed to the death of the deceased, he is responsible even though other contributing causes existed. Wright v. State, 388 S.W.2d 703, 706 (Tex. Crim. App. 1965); Martin, 570 S.W.3d at 434.

         With these legal principles in mind, we first direct our attention to the offense of murder under Section 19.02(b)(2). With respect to the mens rea element, a conviction under Section 19.02(b)(2) requires a showing that the defendant acted with the conscious objective or desire to create a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of any bodily member or organ. Lugo-Lugo, 650 S.W.2d at 81; see Penal § 1.07(a)(46) (West Supp. 2018) (defining "serious bodily injury"), § 6.03(a) (West 2011) (defining when a person acts "intentionally"). Additionally, the State must show that the defendant committed an act clearly dangerous to human life that caused the death of the ...


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