Gillespie, Antwan Lakee v. The State of Texas--Appeal from 204th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANTWAN LAKEE GILLESPIE, )

) No. 08-01-00407-CR

Appellant, )

) Appeal from the

v. )

) 204th District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0134218-SQ)

)

O P I N I O N

Antwan Lakee Gillespie was found guilty of capital murder by a jury. Since the State did not seek the death penalty, the sentence was automatically set at confinement for life. On this appeal, we determine whether Appellant, by virtue of his statement to police that he did not intentionally shoot the complainant while robbing him, was entitled to a charge on the

lesser-included offense of manslaughter. We also address Appellant=s complaint that the trial court erred in discussing the law of parole during voir dire. We will affirm.

Background

Prior to his confrontation with the complainant, Appellant and his friends, K and ABlack,@ committed two robberies. After those robberies, the three men drove to an apartment complex. K, who used Appellant=s pistol in the second robbery, handed it back to Appellant, saying it was Appellant=s turn. Appellant walked alone into the apartment complex and saw the complainant walking in his direction. He noticed the complainant was drunk and decided he would just hit him and take his money. The two men kind of brushed each other, began arguing, then proceeded to fight. Complainant was able to grab the gun from Appellant=s jacket. He pointed the gun and pulled the trigger but nothing happened. The two men struggled again. The pistol discharged three times, first hitting Appellant in the hand, then fatally wounding complainant. Appellant then reached into complainant=s jacket, took his wallet, and fled.

During voir dire, a panelist asked how early parole would affect a life sentence. The State responded that the jury would not consider parole and that they could not talk about it. But the panelist persisted in asking about parole. The court then briefly intervened and discussed parole law, basically stating that juries have no control over parole and that persons convicted of murder and capital murder would have to serve at least thirty and forty years respectively before they would be eligible for parole. Appellant did not object to the comments, and after the court spoke, the topic changed.

Discussion

Lesser Included Offense

We first address Appellant=s complaint that the court erred in denying his request to include a lesser-included offense of manslaughter in the jury charge. Appellant argues that because his statement to police shows that he did not intentionally kill complainant, the jury could have reasonably deduced that Appellant acted recklessly. Thus, he claims, the jury should have been allowed to consider manslaughter, which carries a recklessness component. See Tex.Pen.Code Ann. ' 19.04(a)(Vernon 1994)(person commits manslaughter if he recklessly causes the death of an individual).[1]

To determine whether a jury must be charged on a lesser-included offense, we apply a two-part test. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993); Gadsden v. State, 915 S.W.2d 620, 622 (Tex.App.--El Paso 1996, no pet.). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Id. Involuntary manslaughter is a lesser-included offense of murder. Avila v. State, 954 S.W.2d 830, 842 (Tex.App.--El Paso 1997, pet. ref=d). The first prong of the test is therefore met. We next determine whether the record contains evidence that Appellant is guilty of only manslaughter.

Considering this prong, the salient facts here are similar to those in Gadsden. There, through his statement to police, Gadsden raised an issue at trial that he had fired his gun recklessly and killed the complainant in the course of a robbery. Gadsden, 915 S.W.2d at 623. However, we held that though Gadsden may have recklessly caused the complainant=s death, he was not entitled to an instruction on manslaughter under the facts of his case. Id. This is so because a homicide committed in the course of a robbery cannot be manslaughter; at the very least, it is felony murder. Tex.Pen.CodeAnn. ' 19.02(b)(3); Gadsden, 915 S.W.2d at 642. Under Section 19.02(b)(3), a person is guilty of felony murder if, in the course and furtherance of committing a felony, the person commits an act clearly dangerous to human life that causes the death of an individual. See Tex.Pen.Code Ann. ' 19.02(b)(3); Rousseau, 855 S.W.2d at 673.

Likewise, even if Appellant recklessly caused complainant=s death in this case, he did so in the course and furtherance of a robbery,[2] which raises only the issue of felony murder. Thus, a jury could not rationally find Appellant guilty only of manslaughter. See Ross v. State, 861 S.W.2d 870, 876 (Tex.Crim.App. 1993)(opin. on reh=g). Accordingly, the trial court did not err in refusing to instruct the jury on manslaughter. We overrule this issue.

Discussion of Parole

Next, we address Appellant=s claim that the court committed Afundamental error@ by improperly discussing parole during voir dire in a capital murder trial. The Court of Criminal Appeals has characterized fundamental error as Aonly plain errors that result in a miscarriage of justice or that seriously affect the fairness, integrity, or public reputation of judicial proceedings.@ Jimenez v. State, 32 S.W.3d 233, 238 n.18 (Tex.Crim.App. 2000)(equating fundamental error with federal Aplain error@). Even assuming the trial court=s brief comments were in error, Appellant fails to show, and we do not perceive, how they constitute fundamental error.

Appellant failed to object to any of the court=s comments. It is well-settled that for an issue to be preserved for appellate review, there must have been a timely objection specifically stating the legal basis for that objection. See Tex.R.App.P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex.Crim.App. 1996)(holding that appellant=s failure to object to the judge=s voir dire mention of parole eligibility in capital murder case waived any error). Because Appellant failed to object to the judge=s comments, any error is waived. We overrule this issue.

The judgment of the trial court is affirmed.

October 10, 2002

DON WITTIG, Justice

Before Panel No. 5

Barajas, C.J., Larsen, and Wittig, JJ.

(Wittig, J., Sitting by assignment)

(Do Not Publish)

[1] The court approved and included jury instructions on lesser-included offenses of felony murder, aggravated robbery, and robbery.

[2] Here, the record shows that Appellant at least committed robbery. As noted, Appellant admitted he carried a pistol with the intent of robbing someone, saw complainant, decided to rob him, collided and struggled with complainant, and after complainant was fatally shot, Appellant stole complainant=s wallet. Appellant also admitted to aggravated robbery in closing argument. The record further shows that Appellant was guilty of the felony of conspiracy to commit aggravated robbery when the fatal shooting occurred. See Tex.Pen.Code Ann. ' 15.02(a), (d)(Vernon 1994); Tex.Pen.Code Ann. ' 29.03(a), (b).