Armstrong, Michael Fred v. The State of Texas--Appeal from 212th District Court of Galveston County

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed June 5, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00562-CR

____________

MICHAEL FRED ARMSTRONG, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

   Galveston County, Texas

Trial Court Cause No. 00CR0496

 

M E M O R A N D U M O P I N I O N

A jury convicted appellant of murder and assessed punishment at 65 years confinement. In a single issue, appellant argues the trial court committed reversible error in denying his requested instructions for the lesser-included offenses of manslaughter and criminally negligent homicide. As all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. Because we find there is no evidence that would permit a jury rationally to find appellant guilty only of the lesser offenses, we affirm.

In early 2000, appellant attacked the complainant with a pipe, beating her to death. In his subsequent trial for murder, appellant s defense was that he was unconscious during the attack due to a medical condition.[1] At trial, Dr. Edwin Johnstone testified that appellant suffered from temporal lobe seizures, which he said would cause a person to act as if on autopilot able to complete complicated tasks while in an unconscious state.[2] After examining appellant, Dr. Johnstone opined that appellant was suffering from such a seizure at the time of the incident, and thus did not have the capacity to form an intent when he killed his wife.[3] At the conclusion of the guilt-innocence phase, the jury found appellant guilty of murder.

The State concedes that both manslaughter and criminally negligent homicide are lesser-included offenses of murder. Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. App. 1995). Thus, we must determine only whether there is some evidence that would permit a jury rationally to find appellant guilty only of either lesser offense. See Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). A mere scintilla of evidence will entitle a defendant to a lesser charge. See Bignall v. State, 840 S.W.2d 21, 23 (Tex. Crim. App. 1994). We do not consider credibility of witnesses or conflicts in the evidence. Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995).

Here, appellant s entire defense was centered on his inability to possess any culpable mental state due to a temporal lobe seizure. Both manslaughter and criminally negligent homicide require some sort of mens rea, either recklessness or criminal negligence. See Tex. Penal Code 19.04 (defining manslaughter as recklessly causing death), 19.05 (defining criminally negligent homicide as causing death by criminal negligence). Penal Code section 6.03 defines both of these mental states:

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

According to appellant s evidence, he could not have been reckless as he was not aware of any risks or gross deviation in his behavior. Neither could he have been criminally negligent, as according to Dr. Johnstone there is no basis for saying that an ordinary person in appellant s standpoint (that is, suffering a temporal lobe seizure) ought to be aware of any risks or gross deviation in his behavior. Moreover, the victim here suffered 16 blows to her head with an iron pipe, injuries inconsistent with any understanding legal or otherwise of merely reckless or negligent behavior.

Therefore, there is no evidence that would permit a jury to rationally find appellant guilty of only manslaughter or criminally negligent homicide. The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed June 5, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] In 1997, appellant fell and broke his neck, causing an inadequate blood supply to part of his brain.

[2] Partial complex seizures had previously been termed temporal lobe seizures.

[3] [DR. JOHNSTONE]: My opinion based on pulling all the information together is that he was not conscious when this event happened and did not realize what was occurring. He was not aware of the nature and consequences of his actions . He did not have the capacity to form an intent.