Kenneth D. Martin v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00014-CR
Kenneth D. MARTIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-5651
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 12, 2004

AFFIRMED

Kenneth D. Martin appeals his conviction for the offense of murder. Martin asserts five issues on appeal challenging the trial court's failure to charge the jury on three lesser-included offenses and its erroneous admission of evidence. We overrule Martin's issues and affirm the trial court's judgment.

Background

Martin and the victim, Clayton Gullo, were involved in a traffic incident that escalated and resulted in Gullo's death. Around 5:00 p.m. on August 6, 2001, Martin and Gullo came to a stop at the intersection of Thousand Oaks and El Sendero in San Antonio. Gullo stopped his Mustang behind Martin's Expedition in the left turn lane. The two men got out of their vehicles and began arguing. Gullo returned to his car and began to drive away. Gullo then spit on Martin, and Martin kicked Gullo's car. Gullo stopped his car and quickly reversed into place next to Martin's vehicle. Gullo exited his car and a physical altercation ensued. Gullo suffered four stab wounds on his body. Wound A was a fatal stab wound at the base of the neck, which went underneath the clavicle, cut the subclavian artery and vein, and made a small defect on the lung. Wound B was a cut with a stab wound about four and one-half inches in length on the left lower chest region. Wound C, which was located below Wound B, was a cut with a stab wound about one inch in length and two inches deep. Wound D was a three inch cut with a stab wound about two and one half inches deep on the right lower chest region. After Martin inflected these wounds on Gullo, he drove off in his vehicle.

Witnesses testified that Martin seemed to be the aggressor and that Gullo was covered in blood after the altercation. A witness approached one of the officers at the scene and gave him a description of Martin's vehicle and his license plate number. Officer Brent Smith ran the license plate number and found that it was registered to a nearby residence. Officer Smith went to the residence and found Martin's Expedition parked in front. Evidence was subsequently recovered from the crime scene, the Expedition, and Martin's home.

Officer Antonio Garcia, Jr. testified that when he first arrived on the scene, Gullo was alive; however, Gullo died around the time the paramedics arrived. Martin was indicted for murder. Paragraph A of the indictment alleged that Martin intentionally and knowingly caused the death of the decedent by stabbing the decedent with a knife. Paragraph B of the indictment alleged that Martin, intending to cause serious bodily injury to the decedent, committed an act clearly dangerous to human life by stabbing the decedent with a knife. The jury charge contained instructions on murder and self defense. A jury found Martin guilty of murder and sentenced him to 50 years.

Lesser-Included Offense Instructions

In his first, second, and third issues on appeal, Martin asserts that the trial court erred by failing to charge the jury on three lesser-included offenses: (1) aggravated assault, (2) manslaughter, and (3) criminally negligent homicide. The State counters that Martin was not entitled to these jury charges, as the evidence does not show that if Martin was guilty, he was only guilty of a lesser-included offense.

A charge on a lesser included offense is required where (1) the lesser-included offense is included within the proof necessary to establish the charged offense, and (2) there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser included offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). As long as evidence from any source raises an issue that a lesser-included offense may have been committed, and a jury charge is properly requested, the issue must be submitted to the jury. Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). The credibility of the evidence and whether it is disputed or conflicts with other evidence may not be considered in determining whether such a charge should be given. Id. The evidence, however, must establish the lesser-included offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).

Here, Martin requested jury instructions regarding the offenses of aggravated assault, manslaughter, and criminally negligent homicide. Since all three offenses are lesser-included offenses of murder, the first prong of the test is satisfied. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). In order to satisfy the second prong of the test, there must be some evidence that would allow a rational jury to find that if Martin was guilty, he was guilty only of aggravated assault, manslaughter, or criminally negligent homicide.

With regard to his request for an aggravated assault instruction, Martin argues that he is entitled to the instruction because a pocket knife is not a deadly weapon per se; in "its normal use, [a pocket knife] is not ordinarily calculated to cause death or serious bodily injury," and he had no intent to kill Gullo. Martin relies upon Coit v. State, 629 S.W.2d 263, 265-66 (Tex. App.-Dallas 1982, pet. ref'd) (citing Matheson v. State, 508 S.W.2d 77, 79 (Tex. Crim. App. 1974)). In, Coit the Dallas Court of Appeals stated:

[A]ggravated assault is deemed to be raised in a murder case when the instrument with which the murder [was] committed is not a deadly weapon per se, or [is] one which in the manner of its use is not ordinarily calculated to produce death, and when, in addition thereto, the evidence raises the issue of a lack of intent to kill.

Coit v. State, 629 S.W.2d at 265-66 (emphasis added). Martin correctly states that a pocket knife is not a deadly weapon per se and is not ordinary calculated to produce death. Limuel v. State, 568 S.W.2d 309, 311-12 (Tex. Crim. App. 1978). Therefore, the critical issue is whether the evidence raises the issue of Martin's lack of intent to kill.

Martin's intent to kill can be inferred from the facts in evidence, including Martin's use of a deadly weapon. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). Although a pocket knife is not a deadly weapon per se, the manner in which the knife was used and the wounds inflicted were sufficient to bring the knife within the definition of a deadly weapon. Tex. Pen. Code Ann. 1.07(a)(17) (Vernon 2003); see Limuel v. State, 568 S.W.2d 309, 312 (Tex. Crim. App. 1978). The evidence shows that Gullo suffered four stab wounds, including a deadly stab wound on the lower left side of his neck. Martin admits that he pulled out a knife and stabbed Gullo by making a slicing motion from his left to right with the knife. Martin also admits that he kept the knife "very sharp."

Martin relies solely on his own testimony as evidence that he did not intend to kill Gullo. At trial, Martin could not recall making three of the four stab wounds, including the deadly stab wound on the left side of Gullo's neck. Martin could only recall pushing Gullo off of him when Gullo was moving toward him. Martin did not testify about what he was thinking during the stabbings. Martin does not deny stabbing Gullo; he simply denies having any recollection of three of the stabs, including the deadly stab. Martin's inability to recall actually stabbing Gullo does not provide evidence of his mental state at the time of the stabbing. Therefore, there is no evidence in the record that raises the issue of his lack of intent to kill. Martin has failed to direct this court to any evidence that would allow a rational jury to find that if Martin was guilty, he was guilty only of aggravated assault. Therefore, Martin was not entitled to an instruction on aggravated assault, and the trial court did not err by refusing to submit this charge to the jury.

With regard to manslaughter and criminally negligent homicide, Martin asserts that there is "ample evidence" that he acted recklessly and that his testimony raised the issue of whether he was "negligent in not perceiving the risk which his conduct created." Martin, however, only directs this court to his inability to recall stabbing Gullo.

The culpable mental states for murder, manslaughter, and criminally negligent homicide relate to the result of the conduct, i.e. the causing of the death. Tex. Penal Code Ann. 19.02(b)(1), 19.04, 19.05 (Vernon 2003); see Schroeder v. State, 123 S.W.3d 398, 400-01 (Tex. Crim. App. 2003) (stating that murder and manslaughter are "result of conduct" offenses). Here, Martin offers no evidence showing that he possessed the culpable mental states for manslaughter or criminally negligent homicide, i.e. that he recklessly caused the death of Gullo or that he caused Gullo's death by criminal negligence. See Tex. Penal Code Ann. 19.04, 19.05 (Vernon 2003). Evidence of a defendant's inability to remember causing the death of the victim does not entitle the defendant to charges on the lesser-included offenses of manslaughter or criminally negligent homicide, and the trial court did not err by refusing to submit these charges to the jury. See Schroeder, 123 S.W.3d at 401 (holding that defendant was not entitled to manslaughter instruction where defendant "blacked out" and had no recollection of shooting the victim).

Martin has failed to direct this court to any evidence that would allow a rational jury to find that if he was guilty, he was guilty only of aggravated assault, manslaughter, or criminally negligent homicide. Martin's first, second, and third issues are overruled.

Admission of Evidence

In his fourth and fifth issues, Martin asserts that the trial court erred by overruling his Rule 403 objections and admitting two photographs of the deceased at the crime scene and two items of bloody clothing. The State contends that Martin's fourth and fifth issues are without merit and that Martin failed to preserve his fifth issue for appeal.

Rule of Evidence 403 provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by consideration of undue delay, or needless presentation of cumulative evidence. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003). Rule 403 favors admissibility and contains a presumption that relevant evidence will be more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). The trial court's decision is reviewed under an abuse of discretion standard and is disturbed on appeal only when the trial court's decision falls outside the zone of reasonable disagreement. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).

In his fourth issue, Martin contends that State's Exhibits 6 and 7, which were two 8 " by 11" color photographs of the deceased at the crime scene, should not have been admitted because the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. Martin complains that these photographs show (1) Gullo's partially unclothed corpse lying on the street; (2) Gullo's pants drenched in blood; and (3) a close-up view of Gullo's upper body. Martin contends that the State could have admitted, and did admit, numerous other less gruesome photographs.

Photographs provide powerful visual evidence of the offense and the trial court does not abuse its discretion by admitting photographs of the victim into evidence merely because they are gruesome. Vasquez v. State, 2 S.W.3d 355, 360 (Tex. App.-San Antonio 1999, pet. ref'd) (citing Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App.1995)). Several factors may be considered in determining whether the danger of unfair prejudice substantially outweighs the probative value of photographs, including the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed, and the availability of other means of proof and the circumstances unique to each individual case. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).

Here, the photographs are plainly probative of the manner of the victim's death and do no more than show the gruesomeness of the crime scene and the nature of the victim's injuries. See Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). The two photographs depict a bloody body laying on the street. The photographs were taken close enough to the body to reveal the nature of the victim's injuries, which caused him to bleed from his neck and chest area. The blood stains on Gullo's pants confirm his loss of blood due to the stabs. The two 8 " by 11" color photographs admitted into evidence depict nothing more than the reality of the brutal crime committed. See Chamberlain, 998 S.W.2d at 237; Sonnier, 913 S.W.2d at 519. The trial court could have reasonably concluded that the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. See Ladd v. State, 3 S.W.3d at 568. Therefore, the trial court did not abuse its discretion in admitting the photographs into evidence. Martin's fourth issue is overruled.

In his fifth issue, Martin contends that two items of clothing worn by the deceased at the time of the offense should not have been admitted because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice and the presentation of cumulative evidence. The items consisted of Gullo's bloodstained t-shirt and jeans. The State contends that Martin failed to preserve this issue for appeal.

Assuming without deciding that the alleged error was preserved for review, the trial court did not abuse its discretion in admitting the items of clothing into evidence. If a verbal description of the body and scene are admissible, the clothing worn by the victim of the offense, even if bloodstained, is admissible into evidence. Bradford v. State, 608 S.W.2d 918, 920 (Tex. Crim. App. 1983). Here, photographs and a description of the victim's body and clothing at the scene of the offense were admissible to throw light on the transaction and reveal its general nature. Such a evidence being admissible, the clothing worn by the deceased was likewise admissible into evidence. Bradford v. State, 608 S.W.2d at 921. Wilson's fifth issue is overruled.

Conclusion

For the foregoing reasons, the trial court's judgment is affirmed.

Phylis J. Speedlin, Justice

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