VICKIE LASHUN TOLBERT, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND; Opinion issued July 16, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00920-CR
............................
VICKIE LASHUN TOLBERT, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-00762-LN
.............................................................
OPINION
Before Chief Justice Thomas and Justices Lang-Miers and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Vickie Lashun Tolbert was charged by indictment with the offense of capital murder. Appellant pleaded not guilty before a jury. After hearing evidence, the jury found appellant guilty of capital murder. The trial court found one enhancement paragraph true and sentenced appellant to life in prison. In two issues, appellant contends the trial court erred by not instructing the jury on the lesser-included offense of murder and that the trial court's judgment should be modified to correctly reflect her plea to the enhancement paragraph and to show the correct degree of felony for which she was convicted. We conclude the trial court reversibly erred in not instructing the jury on the lesser-included offense of murder. We reverse the trial court's judgment and remand for further proceedings.
 
Background
 
        Appellant and the deceased Thomas Taylor knew each other. Appellant was a known prostitute. Taylor was described by his long-time neighbors, the Walkers, with whom he shared a large, fenced back yard and front drive, as a “hardworking and caring” man. Taylor had been a widower for about twelve years and was known in the community “to lend people money and give people money.” Taylor was known to carry up to $1000 on his person. He owned several rental properties and hired street people to work cleaning the properties to help out the street people. He was known to keep a clean house. On the Friday following Thanksgiving 2005, Taylor's daughter saw Taylor at his house on Canada Drive in the company of appellant. Taylor later requested his daughter's work telephone number so he could call her in case anything happened to him in relation to appellant.
        On December 17, 2005, Taylor's daughter got a telephone call that her dad had been killed at his home. His house had been ransacked. Guns, a jewelry box, wallet, credit cards, a safe in which he normally kept money, and a Jedi ring were missing.
        Taylor's stepson testified his dad lived alone and that on December 14, 2005, he had lunch with Taylor at Taylor's home. Appellant was present. When appellant left, Taylor told his stepson he was trying to help appellant, but she was trying to take advantage of him. Taylor was “looking down at the floor” while telling his stepson this. At about six o'clock on December 14, the stepson last saw Taylor as Taylor was leaving the stepson's house. Taylor was getting into his truck to leave. The stepson had seen appellant leaving Taylor's house one other time when he was arriving.
        On a Thursday morning in December 2005, as the Walkers were leaving their house, they noticed water on the windshield of Taylor's pickup and on the ground nearby. Upon returning home later, they noticed the water was still there and that a hose was running. Mr. Walker turned off the water and knocked on Taylor's house wall. He got no response. The Walkers' dog, which ran in the common backyard, kept returning to Taylor's back door. The dog had never done this before. Still concerned about Taylor, on Saturday, Mrs. Walker knocked on Taylor's back door. Her knock caused the door to swing open, but there was no response to her knock. Mrs. Walker returned to her home and got her husband and a telephone. Mr. Walker entered the house and found Taylor dead in his bed with a knife nearby. The Walkers left and called the police. The Walkers had not spoken to Taylor since the preceding Wednesday evening. Mr. Walker looked into Taylor's truck and saw “keys and things laying in the seat and floor.” Mr. Walker testified it appeared someone had tried to open the hood of the truck.
        Another neighbor, Marilyn Myles, could see Taylor's house from her front door. She last saw Taylor putting up Christmas lights in the yard, and they had a conversation about Christmas lights. Myles became concerned because she did not see Taylor “coming and going” over the next several days. She also noticed his truck was not parked where it normally was. She saw women coming and going from Taylor's house during the day and evening.
        Monica Sheffield lived on a nearby street. Sheffield got to know appellant “from seeing her on the block.” Sheffield recalled that at one time “after 12 midnight but on the date that Thomas Taylor was murdered,” she and a friend named Bob were getting into the car to go buy cigarettes. They saw appellant “coming across the field right by Norwich [street] carrying a jewelry box.” Appellant was wearing a leather or suede bomber jacket. Bob and appellant had a conversation outside of Sheffield's hearing. Bob then told Sheffield appellant needed a ride to Canada Drive “to go pick up some things.” The three of them drove to Taylor's house on Canada Drive. Appellant got into the bed of a pickup parked in the driveway and returned with rifles. When asked why she was putting guns into the car, appellant did not respond. Appellant tried unsuccessfully to sell the guns. At some point she disposed of the jewelry box. The three returned to Sheffield's home where they drank beer for about an hour. Sheffield told appellant she was going to have to have someone pick her up. Appellant said she would. Sheffield told appellant she had to take the guns with her. Appellant was tense, she “couldn't be still” and “she was real nervous.” Sheffield asked her what was wrong. Appellant called various people to pick her and the rifles up. After Bob and another resident left, appellant began to cry and said she had to get out of West Dallas and go to Terrell, Texas, where her family was. Appellant finally told Sheffield appellant had stabbed Taylor and she had left the weapon “there.” Appellant did not say what she stabbed Taylor with, but Sheffield assumed it was a knife. Sheffield testified appellant said she was saying, “I love you, I love you, I love you” while she was stabbing him. Sheffield then told appellant she had to leave her house. Appellant told Sheffield twice not to tell anyone. Sheffield said appellant finally got in touch with someone to pick her up and appellant left.
        Sheffield did not know Taylor but was told by someone there was a roadblock and Taylor had been found in his house and he had been stabbed. A couple of days later, Sheffield also heard people talking about the rifles. Sheffield identified Taylor's house as the house to which the three of them had gone and where appellant got the rifles earlier in the night. Sheffield talked to Jessie Clark and asked her for a card “for the detectives.” Sheffield later talked to the police and gave a statement. Sheffield said appellant told her she used to date the man she stabbed. However, Sheffield understood that to mean he was one of her “Johns”-that he paid appellant for sex. Appellant never told Sheffield the relationship went beyond that.
        Dallas police detectives found Taylor dead on a bed and the house appeared to have been ransacked. The police found a “durag/wig” and a butcher knife on the bed. There was no sign of forced entry. They found a live shotgun shell on the front porch and another similar shotgun shell was found in the bed of the truck. The house and car keys were never found. Appellant was arrested after her fingerprints were found in the house.
        The autopsy revealed Taylor had been stabbed in several places. In addition to stab wounds in his chest, arm and thigh, there were incised wounds to his head, chin, chest, back, and both hands believed to be defensive wounds. Appellant's DNA was found on the “durag/wig,” a black sock, and blue shirt.
        At the conclusion of the evidence, the trial judge inquired if either side had any objections to the proposed court's charge. The State requested instructions on a lesser-included offense and the law of parties. The trial judge denied both requests. Appellant's counsel affirmatively stated she had “no objection.” The verdict form gave the jury two choices: guilty of capital murder or not guilty.
        During its deliberations, the jury sent out the following note:
 
Should we consider lesser included charges if we believe the robbery was an afterthought?
 
 
 
Does it make a difference if the robbery was an afterthought to a crime of passion?
 
 
 
                                                   /s/ Mark Hall
 
The trial judge answered,
 
You have all the law and the evidence in the case. Please refer to the Court's Charge for the answers to your questions and continue your deliberations.
 
 
 
                                                  /s/ Fred Tinsley
 
The jury returned a verdict finding appellant guilty of capital murder.
 
FAILURE TO INSTRUCT ON LESSER-INCLUDED OFFENSE OF MURDER
 
        In her first issue, appellant asserts the trial court erred by failing to instruct the jury on the lesser-included offense of murder. She asserts the evidence raises the issue that the murder was not committed in the course of committing or attempting to commit a robbery. She further states the error was egregious because the jury was not allowed to consider punishment alternatives. The State agrees murder is a lesser-included offense of capital murder, but does not agree the evidence shows appellant was guilty only of murder. The State also responds that assuming, without conceding, the evidence shows appellant was guilty only of murder, it was appellant's choice to forego the lesser- included instruction, and she must bear the consequences of that decision.
 
A. Standard of Review and Applicable Law
 
        We review a claim of jury charge error in a two-step process. See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). The first step is to determine whether error occurred (a legal inquiry), and if it did, the second step (a factual inquiry) requires a determination of whether sufficient harm resulted from such error to require reversal. See id. at 731-32. In determining the issue of harm, we look to whether the defendant objected to the charge given. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If the defendant objected, we will reverse if there is some harm to the accused from the error. See id. If no objection was made, we will reverse only if egregious harm results from the error. See id. In both situations, we assay the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the trial record as a whole. Id.
        A defendant does not waive jury charge error by affirmatively stating he has no objection to the jury charge. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004). Rather, the affirmative denial of objection is deemed the equivalent of the failure to object, and reversal will occur only when egregious harm is found. See id.
        If evidence from any source raises the issue of a lesser-included offense, a charge on that lesser offense must be included in the jury charge-whether the evidence is introduced by the State or the defense, and whether it is strong, weak, impeached, or contradicted. Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). Evidence raising the issue must be considered within the context of the evidence as a whole. See Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993).
 
B. Analysis
 
        We first reject the State's argument that appellant is estopped from raising her jury charge complaint. The law is well-settled that an affirmative statement of “no objection” is deemed the equivalent of the failure to object, and any error is reviewed for egregious harm. See Bluitt, 137 S.W.3d at 53.
        During voir dire of the jury panel, the prosecutor discussed the law concerning lesser- included offenses. Specifically, the record shows the following:
 
[Prosecutor]: Now I'm going to bring up lesser included offenses. Let's say that you're back there deliberating and you have no doubt whatsoever that Vickie Tolbert committed the death of Thomas Taylor and she did it in Dallas County, Texas, and she did it on or about December 15, 2005. You believe all of that, but you do not believe that beyond a reasonable doubt that she did it while in the course of committing or attempting to commit the offense of robbery. So what would your verdict be and to what offense? Mr. Olson. It's not capital murder, because you must have another felony. But you do believe beyond a reasonable doubt that she caused his death exactly as alleged.
 
 
 
[Venireperson]: I don't know what the legal term is in the State of Texas, but first- degree murder or second-degree murder-
 
 
 
[Prosecutor]: We don't have those different degrees, but it would be murder. So if you say we all believe beyond a reasonable doubt that she killed him, she committed murder, but we do not believe she did it while attempting [to] commit the offense of robbery, so you would find her guilty of a lesser included offense of murder.
 
 
 
        And I'm not saying you're going to believe that. That is just possibilities. The range of punishment for murder - not capital murder but murder is-a lesser included offense of murder, because you take away that underlying felony, but you still believe she caused his death. So the range of punishment would be up to the jury to decide.
 
        
 
        Okay. Now we have to determine punishment. The minimum is five years in the penitentiary; maximum, 99 years or life. And if additional evidence is proven beyond a reasonable doubt, the range of punishment could be 15 minimum, maximum, 99 years or life. So murder is a lesser included offense of capital murder.
 
        The prosecutor then continued her voir dire discussing the lesser-included offense of robbery and the law of parties. Defense counsel also discussed lesser-included offenses during his portion of the voir dire; however, his emphasis was on the lesser-included offense of robbery, not murder.
        During the State's case-in-chief, the prosecutor questioned Sheffield about her conversation with appellant, as follows:
 
[Prosecutor]: Go ahead and tell the members of the jury the conversation you had with [appellant].
 
 
 
[Sheffield]: She told-she told me that her and a friend had been drinking. And he started talking to her real bad, calling her names that he never called her before. And so I asked her did he hit her, and she said yes. And she said he went to bed, and she said she started thinking about what he said to her. And she went in there and said she started stabbing him and stabbing him.
 
Later, the prosecutor again questioned Sheffield about the specifics of appellant's statements.
 
[Prosecutor]: Tell me again exactly what she said.
 
 
 
[Sheffield]: She said they were drinking and he called her a lot of names and that he had never called her before. And I asked her did he strike her, and she said yes. And she said that he went to bed, and she said she thought about the names he had called her. And she went in there and she started stabbing him and stabbing him and stabbing him saying I love you, I love you, I love you.
 
        Appellant argues this testimony “clearly reflects a revenge killing committed out of anger for supposed physical and emotional abuse by the complainant and not a murder committed for robbery.” Appellant also points to other evidence that at the time the body was discovered Taylor was wearing what was variously described as “a necklace” and “a yellow metal necklace.”   See Footnote 2  Because the killer did not take the necklace decedent was wearing at the time appellant argues this is evidence the killing was not done during the course of a robbery.
        After reviewing the record as a whole, we conclude there is some evidence that if guilty, appellant is guilty only of murder. Therefore, we conclude the trial court erred by not including an instruction on the lesser-included offense of murder.
        Having concluded there was error, we must determine whether appellant suffered egregious harm. See Almanza, 686 S.W.2d at 171. Reviewing the record as a whole, we conclude appellant was egregiously harmed by the trial court's error. See id.
        The record reflects the State focused on the issue of the lesser-included offense of murder during voir dire. Additionally, there was evidence in the record that raised the issue of murder rather than capital murder. At the conclusion of the evidence, the State requested an instruction on the lesser-included offense of murder. Appellant's “no objection” response was ambiguous. It is not clear whether appellant had no objection to the inclusion of the lesser-included instruction or no objection to the jury charge without the instruction. However, it is clear appellant never affirmatively sought to have the lesser-included instruction on murder omitted from the charge. Further, the jury specifically inquired about whether it could consider lesser-included offenses even though it had not received any lesser-included offense instructions. Had the jury been allowed to consider the lesser-included murder offense and found appellant guilty of it, the applicable punishment range would have changed. Rather than the mandatory life sentence, the punishment range, with one enhancement paragraph, would have been fifteen to ninety-nine years, or life, imprisonment, and a fine of up to $10,000. See Tex. Penal Code Ann. §§ 12.42(c)(1), 19.02(c) (Vernon 2003 & Supp. 2007).
        Accordingly, we sustain appellant's first issue. In light of our disposition of this issue, we need not address the second issue seeking modification of the judgment. See Tex. R. App. P. 47.1.
        We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070920F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 In State's exhibit no. 3A and on page 1 of the autopsy report, Taylor's body is shown wearing a necklace.