Litrey Demond Turner v. State

Opinion issued July 30, 2010.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-08-00657-CR

———————————

Litrey Demond Turner , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Case No. 07CR0760

MEMORANDUM OPINION

A

jury convicted appellant Litrey Demond Turner of capital murder, and the trial

court assessed punishment at life in prison without parole. See

Tex. Penal Code Ann. §

19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp. 2009). Turner was 15 years old at the time of the

charged offense, and he was tried as an adult.

On appeal, Turner contends that the evidence is legally insufficient to

support his conviction for capital murder and that the trial court erred by

refusing to instruct the jury on the lesser-included offenses of aggravated

robbery and robbery.

The

trial court erroneously denied Turner’s requested jury instruction on the

lesser-included offense of robbery.

Robbery was a lesser-included offense of capital murder in this case,

and there was some evidence in the record that would permit a rational jury to

find that Turner was only guilty of robbery and not of capital murder. We therefore reverse the conviction and remand

for a new trial. [1]

Background

Turner

lived with his aunt, Donna Morris, at an apartment complex in Dickinson,

Texas. He met another teenager, Andrew

Brown, who also lived at the apartment complex.

On a Monday not long after the start of the school year, Kathy Porter, a

neighbor in the apartment complex, saw four or five African-American teenage

boys standing outside. She testified

that a boy with dreadlocks was passing around a small black handgun, handing it

to another boy who was several inches taller.

That afternoon, Turner and Brown went to a nearby convenience store

called “Storekeepers.” Storekeepers was

owned by two sisters, Bich Lam and complainant Phoung Thi Lam, who worked the

night shift before closing the store around 11:00 p.m.

The store’s surveillance video from

earlier in the day showed Turner purchasing a drink or snack while Brown, who

had dreadlocks, danced in the aisle near the counter. The black-and-white video showed Turner was

several inches taller than Brown.

According to Turner’s statement to

the police, he and Brown watched a movie at his house that night and later

walked back to Storekeepers shortly before 11:00 p.m. Turner told the police that he did not know

Brown was armed at that time or that he intended to rob the convenience

store. Turner did, however, state that

prior to that day he had seen Brown with a gun, which Brown hid behind some steps

at the apartment complex.

Michael Davis testified that he saw

Brown and a friend standing by the convenience store’s dumpster at

approximately 9:30 p.m. that night.

Brittany Moore and Trikeith Sanders testified that they saw Turner and

Brown outside the convenience store at approximately 10:00 p.m. and that

Brown asked if a car parked in front of the store was an unmarked police

car. They both said that when Brown

asked the question, Turner was standing with him.

The store’s surveillance video

shows Phuong Thi Lam walking in front of the counter to lock up the store. As she put the key in the lock, the door

opened from the outside, and she struggled to close the door but was pulled

outside. She returned inside and again

struggled to close and lock the door.

The surveillance video shows Lam falling to the floor.

Around 10:45 or 11:00 p.m., Moore

and Sanders were walking past the convenience store when Moore noticed the

light was on and Lam’s car was still outside.

They both saw Lam lying by the door in a pool of blood. Davis walked by and then called 9-1-1. Sanders and Davis both testified that they

heard Brown’s voice calling Davis’s name from the vicinity of the dumpsters.

Police responded within minutes,

and Lam, who had been shot and was bleeding but still had a faint pulse, was transported

to an emergency room where she later died.

The medical examiner testified at trial that Lam died as a result of a

gunshot wound, which caused her to bleed to death. He said that if she had received prompt

medical attention, she may have survived the shooting.

Sgt. J. Jaekel, a patrol supervisor

with the City of Dickinson Police Department, responded to the 9-1-1 call. Shortly after the incident, the police

received an anonymous tip that they should look for “a black male with

dreadlocks named Young Money who was from Louisiana.” Brown’s nickname was “Young Money,” and he

was from Louisiana. After speaking with

Davis, Moore, and Sanders, Sgt. Jaekel decided that investigators should go to

the nearby apartment complex to search for the suspect. While Sgt. Jaekel was coordinating efforts,

Deputy J. Gillane of the Galveston County Sherriff’s Department went to the

apartment complex, where he saw two young men.

Deputy Gillane watched them go into an apartment. Almost immediately, he saw one of them leave

and go into a different apartment. When

Sgt. Jaekel arrived, Deputy Gillane showed him which apartments the young men

had entered, and Sgt. Jaekel arrested Brown in the first apartment and Turner

in the second.

Sheryl Mitchell, a neighbor and

friend of Turner and Brown, lived in the first apartment they entered. She testified that the boys were at her

apartment earlier in the day and that Brown showed his gun to a female

acquaintance and talked to her about robbing someone. Turner was present at that time. Mitchell testified that Turner and Brown

returned to her apartment that night.

Turner left after less than five minutes, but Brown stayed until the

police came to the door and arrested him.

Detective J. Lopez obtained consent

to search Mitchell’s apartment, Brown’s parents’ apartment, and Morris’s

apartment. These searches took place the

night of the shooting or early in the morning of the next day. Sgt. T. Keele, with the City of Dickinson

Police Department, searched Morris’s apartment.

In the back bedroom where Turner usually slept, Sgt. Keele found a black

purse that had a copy of Lam’s social security card inside. He did not find a gun. Detective Lopez and Sgt. Keele also found

some dark colored clothing that matched the description of what Turner wore

before he entered Morris’s apartment that night. J. Rojas, a forensic chemist with the Texas

Department of Public Safety Crime Lab, testified that he tested the black pants

that were found in Turner’s room. Rojas

found one particle on the pants that was consistent with or indicative of

gunshot residue, but he conceded on cross-examination that environmental

sources can produce similar particles.

City of Dickinson Police Detective

W. Price searched Mitchell’s apartment and found no evidence pertaining to the

charged offense. He also searched

Brown’s parents’ apartment, where his colleague Sgt. Gottlob found a bullet in

one of the closets in Brown’s bedroom. Sgt. Gottlob testified that he found a .38

caliber cartridge in the closet. Detective

Price and Sgt. Gottlob both testified that they found two framed photographs

hanging on the wall: one showing Brown holding a handgun and marijuana and the

other showing Brown holding a shotgun, marijuana, and what appeared to be

cocaine. They did not find a gun. C. Story, a forensic scientist with the

Texas Department of Public Safety Crime Lab, analyzed the bullet recovered from

Lam and compared it to the cartridge found in Brown’s closet and the

photographs taken from his apartment.

Story testified that the bullet that he tested could have been fired

from the handgun shown in the photograph with Brown.

The day after the police searched

her apartment, Morris found a black coin purse in a basket of hair accessories

in Turner’s bedroom. At first she

thought the coin purse belonged to her daughters, but she discovered Lam’s

driver’s license inside and turned it over to Detective J. Cromie with the City

of Dickinson Police Department. She also

found a ski mask or knit cap, a bandana, and a ball cap in Turner’s bedroom,

none of which, she said, belonged to Turner.

Forensic DNA analysis showed Brown’s DNA on the knit cap. Testing also found Turner’s DNA on the black

coin purse. Turner’s defense counsel

suggested through cross-examination that his DNA was present on the coin purse

because it was found near his hairbrush.

But J. Watson, who performed the DNA analysis for the Texas Department

of Public Safety Crime Lab, testified that it was unlikely that Turner’s DNA

got on the coin purse by a random transfer.

Morris also testified that the day

after Turner was arrested, Brown’s parents came to her apartment. She said they searched around and went into

her daughters’ bedroom, ostensibly looking for the gun used in the

robbery. After Brown’s parents left,

Turner’s sister, Saqouia Turner, who was staying with Morris, found a gun and a

cell phone in Morris’s daughter’s bedroom.

Saqouia testified that she found a

black gun and a cell phone in her cousins’ bedroom. Believing that Brown’s parents were trying to

frame Turner, she hid the gun and the cell phone in a cardboard box, put the

box in a black garbage bag, and threw the bag behind the dumpsters at the

apartment complex. She later helped

police search for the gun, reenacting what she did, but the gun was never

found.

After Turner’s arrest, Justice of

the Peace Kathleen McCumber advised him of his rights, and Detective Lopez

later questioned him about the incident.

Turner repeatedly denied any involvement in the robbery and murder, and

he initially denied any knowledge about it.

He repeatedly said, “I didn’t do it.”

As Detective Lopez continued the interview, Turner told him that he

spent the evening watching a movie with Brown and that he went with Brown to

the convenience store that night. Turner

told Detective Lopez: that he was going to the store with Brown to get chips,

cookies, and soda; that he did not know that Brown had a gun with him when they

went to the store; that the first time he saw Brown’s gun that day was when

Brown showed it to Lam during the robbery; and that he did not know Brown was

going to rob or shoot the clerk. Turner

said that he stayed near the dumpster because he wanted to return home. He said that as Lam was locking up the store,

he saw Brown point a gun at her, demand her purse, and then shoot her. Turner said he ran home, took a bath, and

changed his clothes. He also said that

he normally kept his ground-floor bedroom window open and that Brown climbed in

the window and stashed Lam’s purse in his room.

At trial, Turner presented no

evidence, instead resting on the presumption of his innocence. The trial court denied his request for jury

instructions on the lesser-included offenses of robbery and aggravated robbery,

but the court included an instruction on the lesser-included offense of felony

murder. The jury found him guilty of

capital murder.

Legal

Sufficiency OF THE EVIDENCE

In

his fourth issue, Turner contends that the evidence was legally insufficient to

support his conviction because the State failed to prove that he was a primary

actor to the offense. [2] Turner’s entire argument on this point is

based upon the premise that the jury charge did not authorize the jury to

convict him under the law of parties.

Turner thus argues that the jury could have convicted him only on

sufficient proof that he was the primary actor.

Contrary

to his arguments on appeal, the jury charge also authorized the jury to convict

Turner of capital murder or felony murder on a conspiracy theory, as contemplated

by Section 7.02(b) of the Penal Code. As

discussed below, the evidence was sufficient to convict Turner of capital

murder under this theory of responsibility.

A. Standard of Review

We review the legal sufficiency of

the evidence by viewing the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson

v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); Vodochodsky v. State , 158 S.W.3d 502,

509 (Tex. Crim. App. 2005). The standard

is the same for both direct and circumstantial evidence cases. King v.

State , 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). The trier of fact is the sole judge of the

weight and credibility of the evidence. Margraves v. State , 34 S.W.3d 912, 919

(Tex. Crim. App. 2000), overruled on

other groundsby Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009). We do not resolve any conflict of fact, weigh

any evidence, or evaluate the credibility of any witnesses, as this was the

function of the trier of fact. See Dewberry v. State , 4 S.W.3d 735, 740

(Tex. Crim. App. 1999). We must resolve

any inconsistencies in the evidence in favor of the verdict. Curry

v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

We measure the sufficiency of the

evidence against the elements of the offense as defined by a hypothetically

correct jury charge. Malik v. State , 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). A hypothetically

correct jury charge “sets out the law, is authorized by the [charging

instrument], does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried.” Id . This standard ensures that a judgment of

acquittal is reserved for those situations in which there is an actual failure

in the State’s proof of the crime. Id.

Under the law of parties, if Turner

conspired with Brown to rob the store, [3] Turner could be held

criminally liable for capital murder committed by Brown, [4] even if Turner had no

intent to commit capital murder, if Brown committed the murder in an attempt to

carry out the conspiracy to commit robbery and if Brown’s actions should have

been anticipated by Turner as a result of the carrying out of the conspiracy. [5] Thus the jury did not have to find that

Turner personally caused Lam’s death to convict him of capital murder.

B. Analysis

In

his statement to the police, Turner said that while he stood by a nearby

dumpster, Brown shot Lam. Turner also

said that Brown later stored the purse and the other items stolen from Lam in

Turner’s room. Evidence that Turner and

Brown conspired to commit an armed robbery at the convenience store includes:

(1) the surveillance video that showed they were in the store earlier in

the day; (2) testimony from Kathy Porter that she saw an African-American

teenage boy with dreadlocks passing around a small black handgun, handing it to

another boy who was several inches taller; (3) testimony from Sheryl

Mitchell that, in Turner’s presence, Brown showed his gun to a female

acquaintance and talked to her about robbing someone; and (4) testimony

from Brittany Moore and Trikeith Sanders that they saw Turner and Brown outside

the convenience store at approximately 10:00 p.m. and that Brown asked if a car

parked in front of the store was an unmarked police car. Furthermore, Turner told Detective Lopez that

he knew that Brown owned a gun because Turner had seen the gun before the day

of the offense. From this evidence a

jury could have reasonably inferred that Turner and Brown were co-conspirators,

that they planned to rob the Storekeepers convenience store at closing time,

and that Turner should have anticipated that Brown would shoot Lam with his

gun.

Turner

argues that because the jury charge erroneously failed to apply the law of

parties, the evidence was legally insufficient to support the jury’s

verdict. In so doing, Turner relies on

authority that has been overruled.

Appellate courts review the sufficiency of the evidence based on a

hypothetically correct jury charge, not the charge actually given. See

Malik , 953 S.W.2d at 240 . To the

extent Turner complains about the phrasing of the law of parties instructions

given to the jury, that is not pertinent to our legal sufficiency review. See id.

We conclude that a rational jury

could have found beyond a reasonable doubt that Turner was guilty of capital

murder as party to the offense. See Jackson , 443 U.S. at 319 , 99 S. Ct.

at 2789 ; Vodochodsky , 158 S.W.3d at

509 . We hold that the evidence was

legally sufficient to support the conviction, and we overrule Turner’s fourth

issue.

LeSSER-INCLUDED

OFFENSES

In his second issue, Turner contends that the trial

court erred by not charging the jury on the lesser-included offenses of robbery

and aggravated robbery. Turner requested

that the jury be instructed on these offenses, and his request was sufficient

to preserve error. Carmen v. State , 276 S.W.3d 538, 541 (Tex. App.—Houston [1st Dist.]

2008, pet. ref’d). Turner argues on

appeal that the requested lesser-included offenses had to be included in the

instructions to the jury because the jury could have concluded that there was

not sufficient evidence to establish that he should have reasonably anticipated

a murder committed in furtherance of a conspiracy to commit robbery or

aggravated robbery.

A. Law of Lesser-Included Offenses

To determine whether a defendant is

entitled to an instruction on a lesser-included offense, the court conducts a

two-pronged test. See Hall v. State , 225 S.W.3d 524 , 535–36 (Tex. Crim. App. 2007). As recently reiterated by the Court of

Criminal Appeals in Ex parte Watson , [6] the first part of the test

requires the court to use the “cognate pleadings” approach to determine whether

an offense is a lesser-included offense of another offense. The first prong is satisfied if the

indictment for the greater-inclusive offense either:

1) alleges all of the elements of the

lesser-included offense, or 2) alleges elements plus facts (including

descriptive averments, such as non-statutory manner and means, that are alleged

for purposes of providing notice) from which all of the elements of the

lesser-included offense may be deduced.

Both statutory elements and any descriptive averments alleged in the

indictment for the greater-inclusive offense should be compared to the

statutory elements of the lesser offense.

If a descriptive averment in the indictment for the greater offense is

identical to an element of the lesser offense, or if an element of the lesser

offense may be deduced from a descriptive averment in the indictment for the

greater-inclusive offense, this should be factored into the

lesser-included-offense analysis in asking whether all of the elements of the

lesser offense are contained within the allegations of the greater offense.

Watson , 306

S.W.3d 259, 273 (footnote omitted). This

inquiry is a question of law. Hall , 225 S.W.3d at 535 .

The second step asks whether there

is evidence that supports giving the lesser-included-offense instruction to the

jury. Id. at 536 . A defendant is

entitled to a requested instruction on a lesser-included offense when the proof

for the charged offense subsumes the proof required to establish the

lesser-included offense and some evidence in the record would permit a rational

jury to find that if the defendant is guilty, he is guilty only of the

lesser-included offense. Id.

B. Jury Charge Analysis

The State does not dispute that, in

this case, robbery and aggravated robbery are lesser-included offenses of

capital murder. See Tex. Penal Code Ann .

§ 19.03 (Vernon Supp. 2009), §§ 29.02, 29.03(a)(1), (2) (Vernon 2003). The first prong of the Hall analysis is satisfied.

The second prong is also met. “In applying this prong of the test, the

appellate court must examine the entire record instead of plucking certain

evidence from the record and examining it in a vacuum.” Enriquez

v. State , 21 S.W.3d 277, 278 (Tex. Crim. App. 2000). Anything more than a scintilla of evidence

may be sufficient to entitle a defendant to a jury instruction on a

lesser-included offense. Hall , 225 S.W.3d at 536 (citing Bignall v. State , 887 S.W.2d 21, 23

(Tex. Crim. App. 1994)). “It is not

enough that the jury may disbelieve crucial evidence pertaining to the greater

offense. Rather, there must be some

evidence directly germane to a lesser-included offense for the factfinder to

consider before an instruction on a lesser-included offense is warranted.” Skinner

v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997) (citing Bignall , 887 S.W.2d at 24 ). “We are required to ‘view the evidence in the

light most favorable to appellant and give him the benefit of reasonable

inferences from it, without regard to whether the evidence is credible,

controverted, or in conflict with other evidence.’” Ray v.

State , 106 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(quoting Upchurch v. State , 23 S.W.3d

536, 540 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)); accord Banda v. State , 890 S.W.2d 42, 60 (Tex. Crim. App. 1994). “Regardless of its strength or weakness, if

any evidence raises the issue that the defendant was guilty only of the lesser

offense, then the charge must be given.”

O’Brien , 89 S.W.3d 753, 755

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Saunders v. State , 840 S.W.2d 390, 391 (Tex. Crim. App. 1992)).

The evidence relied upon by Turner

to support charging the jury on the lesser-included offenses of robbery and

aggravated robbery comes from the statement he gave to the police shortly after

he was arrested on suspicion of participation in Lam’s murder. Viewing the evidence in the light most favorable

to Turner, the evidence shows that he conceded that he accompanied Brown from

the apartment complex to the immediate vicinity of the store and was standing nearby

when Brown approached Lam, demanded her purse, shot her with a black .38

handgun, and took her purse. After

seeing Brown shoot Lam, Turner fled the scene.

He was followed by Brown and both returned to the apartment complex.

After stating that he and Brown

“were walking to the store,” Turner was asked, “Did he say he was going to rob

her?” Brown answered, “No.” Turner was asked specifically, “Did you know

he had a gun on him?” He responded, “No,

I don’t.”

The State argues that, under the

second prong of Hall , Turner was not

entitled to jury instructions on robbery or aggravated robbery because there

was no evidence that Turner was guilty of only the lesser-included offenses. See Solomon

v. State , 49 S.W.3d 356 , 368–69 (Tex. Crim. App. 2001). The evidence supporting a lesser-included

charge must be directly germane to the lesser-included offense. Id .

at 369. [7] As applied to a request to instruct the jury

about robbery or aggravated robbery as lesser-included offenses with respect to

capital murder, the foregoing principles dictate that the second prong of Hall is met only if there is evidence in

the record showing either (1) there was no murder, (2) the murder was not

committed in furtherance of a conspiracy, or (3) the murder should not

have been anticipated. Id .

As noted by the State, there is no

dispute that a murder took place. Turner

does not argue that the murder was not committed in furtherance of a conspiracy

to rob the convenience store. Therefore,

the only possible theory that could support Turner’s request for the lesser-included

charges is that evidence in the record would support a rational jury’s

conclusion that there was insufficient evidence to establish that he should

have reasonably anticipated that Brown would kill Lam in the course of robbing

the store, as would be necessary to find Turner guilty of capital murder as a

co-conspirator. See id .; Tex. Penal Code Ann .

§ 7.02(a)(2) (Vernon 2003) (providing liability for felony committed by

co-conspirator in furtherance of the conspiracy’s unlawful purpose if the

felony “should have been anticipated as a result of the carrying out of the

conspiracy”). Like the capital murder

instruction, the lesser instruction on felony murder given in this case also

required the jury to find that Turner reasonably anticipated that Brown would commit

murder in furtherance of the conspiracy.

We must determine whether there is any

evidence in the record, credible or not, from which a reasonable jury could

have found that Turner failed to anticipate the murder. In his statement to the police, Turner said

that he did not know Brown had a gun at the time of the robbery, [8] and that he first saw it

that night when Brown pulled the gun on Lam and demanded her purse. At oral argument, the Court asked counsel for

the State whether a reasonable jury could have convicted Turner of robbery and

acquitted him of felony murder and capital murder. The State conceded, “Conceivably,

conceivably.”

We agree. Without regard to Turner’s credibility, we

conclude that his statements that he did not know Brown had a gun and that he

did not see the gun until Brown pointed it at Lam constitute some evidence that,

if believed by the jury, could have supported a conclusion that although Turner

was guilty of conspiracy to rob the store, he nevertheless did not reasonably

anticipate that Brown would commit murder in furtherance of the

conspiracy. See Jones v. State , 921 S.W.2d 361, 364 (Tex. App.—Houston [1st

Dist.] 1996, pet. ref’d) (“A jury, as the trier of fact, is entitled to believe

all or part of the conflicting testimony proffered and introduced by either

side. The jury can selectively believe

all or part of the evidence admitted at trial.”). Accordingly, we conclude that the trial court

should have instructed the jury on the lesser-included offense of robbery, and

we hold that the court erred by not doing so.

Because the trial court erred by failing to instruct on robbery, we need

not decide whether the trial court also should have instructed on aggravated

robbery.

C. Harm Analysis

“The erroneous refusal to give a

requested instruction on a lesser-included offense is charge error subject to

an Almanza harm analysis.” O’Brien ,

89 S.W.3d at 756 (citing Saunders ,

840 S.W.2d at 392 ); see Almanza v. State , 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on rehearing).

We must reverse if the trial court’s error caused the accused “some” or

“any” harm. Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza , 686 S.W.2d at 171 ; O’Brien , 89 S.W.3d at 756 . When the trial court’s failure to submit the

requested lesser-included-offense instruction has “left the jury with the sole

option either to convict the defendant of the greater offense or to acquit

him,” a finding of harm is automatic. Saunders v. State , 913 S.W.2d 564, 571 (Tex.

Crim. App. 1995); accord Robalin v. State , 224 S.W.3d 470, 477

(Tex. App.—Houston [1st Dist.] 2007, no pet.).

In Saunders , the Court of Criminal Appeals held that harm may not be

automatic when the trial court instructed the jury on one lesser-included

offense that was raised by the evidence but denied the defendant’s request to

instruct the jury on a different lesser-included offense. Saunders ,

913 S.W.2d at 571 . In such a circumstance,

the submission of the lesser-included offense would provide the jury with a

compromise between conviction for the greater offense and acquittal. Id. Thus, a jury’s decision to convict the

defendant for the greater offense could negate a finding of “some” harm. Id.

The trial court instructed the jury

on capital murder, for which the punishment was statutorily mandated to be

imprisonment for life or life without parole, and on felony murder, a first

degree felony for which the statutory punishment range is 5 to 99 years’

confinement. See Tex. Penal Code Ann.

§ 12.31 (Vernon Supp. 2009) (capital murder); id . § 12.32 (Vernon Supp. 2009) (punishment range for first-degree

felony), id . § 19.02(b)(3), (c)

(Vernon 2003) (defining felony murder and stating it is first-degree

felony). By contrast, robbery is a

felony of the second degree, for which the punishment range is 2 to 20 years’

confinement. Tex. Penal Code Ann. § 12.33 (Vernon Supp. 2009)

(statutory punishment range for second-degree felony); id . § 29.02(b) (Vernon 2003) (robbery). Turner was sentenced to life imprisonment for

capital murder; had he been found guilty of the lesser offense of robbery, he

could have been sentenced to confinement for a maximum of 20 years.

The crux of Turner’s argument is

that his statement to the police that he did not know that Brown had a gun with

him is some evidence that he did not reasonably anticipate the possibility of

Lam’s murder. Here the capital murder elements

in the jury charge and the felony-murder elements in the jury charge each

included elements that required the jury to find that Turner should have

anticipated that the murder of Lam would occur as a result of the carrying out

of the conspiracy to rob her. The jury

was not offered the possibility of convicting on any charge that did not

include as an element Turner’s reasonable anticipation of a murder committed by

Brown. Thus, although the trial court

instructed the jury on one lesser-included offense, on the facts of this case,

felony murder was not a compromise in regard to the issue of anticipation. This case, therefore, is not an exception to

the rule of automatic harm. Contra Saunders , 913 S.W.2d at 571 .

Accordingly, we hold that the trial

court’s failure to give Turner’s requested instructions on the lesser-included

offense of robbery caused Turner some harm, and we sustain his second issue.

Conclusion

Because

the trial court’s erroneous denial of Turner’s requested instruction on the lesser-included

offense of robbery caused him some harm, we reverse the judgment in this case

and remand the case to the trial court for a new trial.

Michael

Massengale

Justice

Panel consists of Justices Jennings, Alcala, and

Massengale.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] In light

of our disposition of this appeal, it is unnecessary for us to address Turner’s

other issues, which include his contentions that the trial court erred by denying the motion to suppress his recorded

statement because the magistrate did not ask him if he wished to waive his

right to remain silent (issue one) and that the trial court gave an erroneous

jury instruction regarding the law of parties (issue three).

[2]

We need not resolve Turner’s first issue, relating

to his request to suppress evidence of his statement to the police, in order to

analyze the sufficiency of the evidence to support a conviction for capital

murder. “If the sufficiency of the

evidence is challenged following a jury trial, appellate courts consider all of

the evidence presented whether properly or improperly admitted.” Green

v. State , 893 S.W.2d 536, 540 (Tex. Crim. App. 1995).

[3] A person commits robbery if,

while unlawfully appropriating property with the intent to deprive the owner of

the property, he intentionally, knowingly, or recklessly causes bodily injury

to another or intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death. See Tex.

Penal Code Ann . § 29.02 (Vernon 2003).

[4]

A person commits the offense of capital murder if he

intentionally or knowingly causes the death of an individual while in the

course of committing or attempting to commit certain delineated felonies,

including robbery. See id. § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp.

2009).

[5]

Id. § 7.02(b) (Vernon 2003); Love v. State , 199 S.W.3d 447, 452 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d).

[6] 306 S.W.3d 259 (Tex. Crim.

App. 2009) (per curiam op. on reh’g).

[7]

Though not argued by the State, we are aware of

authority to the effect that when a defendant denies having committed any crime

and there is no other evidence in the record from which a jury could find that

the defendant committed only the lesser offense, then the defendant is not

entitled to a lesser-included offense instruction. See,

e.g. , Lofton v. State , 45 S.W.3d

649, 652 (Tex. Crim. App. 2001); Smith v.

State , 187 S.W.3d 186, 196 (Tex. App.—Fort Worth 2006, pet. ref’d); Johnson v. State , 84 S.W.3d 726, 730

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Read in its entirety, Turner’s statement to

the police did not deny knowledge of the offense or deny that he was

present. Rather, he admitted going to

the store with Brown, remaining nearby while Brown robbed and killed the clerk,

and then rejoining Brown at Turner’s apartment where he took possession of the

purse stolen from the clerk.

[8]

Knowledge that a co-conspirator would use a gun

during the course of a robbery can show that the defendant should have

anticipated that a death could result from the robbery. See

Love , 199 S.W.3d at 453 ; see also

Longoria v. State , 154 S.W.3d 747 , 757 n.7 (Tex. App.—Houston [14th Dist.]

2004, pet. ref’d) (citing Tippitt v.

State , 41 S.W.3d 316 , 324–25 (Tex. App.—Fort Worth 2001, no pet.) (listing

cases holding that proof of knowledge that gun would be used in robbery

supported finding that resulting murder should have been anticipated), overruled on other grounds by Hooper v. State , 214 S.W.3d 9, 15 (Tex.

Crim. App. 2007)).