Opinion

Chris Otting v. State

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Dec 2, 1999
Status: Published
Cited by: 0 cases
Authority: More cited than 35.9%

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00281-CR

Chris Otting, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 97-882-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Appellant Chris Otting was charged in count one of the indictment with capital

murder of a child under the age of six years. (1) Count two alleged that the appellant intentionally

or knowingly caused serious bodily injury to a child under the age of fourteen years by

smothering, suffocating, or choking the child with a blanket, hand, or unknown object. (2) The jury

convicted appellant of reckless injury to a child, a lesser included offense under count two, and

made an affirmative finding that a deadly weapon had been used as alleged in the indictment. The

jury assessed punishment at 20 years' imprisonment and a fine of $10,000.

On appeal, appellant presents three issues for consideration. First, appellant

challenges the factual sufficiency to support the conviction for reckless injury to a child. Second

and third, appellant contends that the trial court erred in refusing to submit to the jury the offenses

of manslaughter (3) and criminally negligent homicide (4) as lesser included offenses of capital murder

as charged in count one.

Facts

A recitation of the facts will place the issues in proper perspective. The victim was

Jordan Otting, the year-old daughter of the 20-year-old appellant. At the time of the offense, on

or about August 12, 1997, appellant lived at the Chisholm Trail Apartments in Williamson County

with his girlfriend, Krystal Garland, their child Jordan, three-week-old baby Nathan, and

appellant's mother, Debra Otting. Jaime Piedras, a paramedic with EMS, responded to a call on

the morning of August 12, 1997. Upon arriving at the Chisholm Trial Apartments, he observed

a hysterical Krystal Garland holding Jordan, Debra Otting crying hysterically, and appellant

looking nervous. When Piedras took the child from its mother, he could tell the child was dead.

Piedras was shown a play pen in the back of the apartment. Appellant told Piedras that this was

where Jordan slept; that Jordan was put to bed about 8:45 p.m. the previous evening and was

found dead about 8:30 a.m.; and that "they" never checked on the child during the night. Piedras

noticed that appellant was not crying and made a comment about that fact. Appellant then made

an effort to cry, but Piedras saw no tears.

Round Rock Police Officer James Chansley was the first officer on the scene at

apartment 17. He found the mother of the child wailing, sobbing, and pleading with the child in

her arms to wake up. Appellant was somber and distraught but not crying. Later, when Chansley

spoke to appellant outside of the apartment, appellant was smoking a cigarette and appeared in

control of his emotions.

Lieutenant Mary Ryle with the Round Rock Police Department was called to the

scene to investigate the child's death. Appellant and Krystal Garland told her that appellant put

Jordan to bed about 8:30 or 9:00 p.m. the previous evening and that he went into the bedroom

the next morning about 9 a.m. because Jordan had not awakened. Appellant told Ryle that, upon

entering the room, he saw Jordan's hand protruding out from under the bed cover. The hand was

cold and he knew something was wrong. He went to get his mother. Appellant told Ryle: "I

know it's weird, but I just can't touch a dead kid." He did not explain how he knew at that time

that Jordan was dead.

Detective Helen Keesee came to the apartment on August 12, 1997, and spoke with

appellant. She testified that appellant had a very "flat affect." Keesee noticed a scrape or a burn

on Jordan's nose, but appellant and Krystal both said they did not observe the mark when Jordan

was put to bed the evening before.

The State introduced three written statements given by appellant. The first

statement was given on the early afternoon of August 12, 1997. The statement principally

reiterated what appellant had told the officers earlier. Appellant did add that after he came home

from work he was playing with Jordan when she hit him in the eye with a TV remote control unit,

that he yelled at her, and then told her that he was sorry. In the second statement, taken on August

13, 1997, appellant admitted that he had scared Jordan when he yelled at her. He also

acknowledged that there was tension between Krystal and him about the baby Nathan that evening.

Appellant explained that Nathan was still awake when Jordan was put to bed; that Nathan

awakened shortly after he had been put in bed; that Krystal accused him of having put Nathan

down when the baby was still awake; that Nathan was fed and put back to bed; that he and Krystal

argued about the matter and then went to bed; that sometime in the night Nathan awakened and

appellant got up and fed Nathan before placing him back in his crib; that about 7:30 a.m. Krystal

awakened appellant and told him to feed Nathan; that he was a "little bothered but not really

mad"; that he gave Nathan half of a bottle before Nathan fell asleep; that Krystal later "got mad"

because he had not given Nathan the full bottle; that they did not really argue "but just blew each

other off"; and it was after he had showered that he had discovered Jordan was not alive.

Sergeant Klingensmith, who had taken appellant's statements, was concerned that

appellant had failed to mention in his first statement that he had been up during the night to feed

Nathan. Captain Dan LeMay was concerned about the stressful events in the apartment on the

night in question. The two police officers decided to talk with appellant again.

Later on August 13, 1997, LeMay told appellant that he believed appellant had

something to do with Jordan's death. Appellant responded that he thought he had killed Jordan;

that when he put her to bed he held her down about a minute because he wanted her to go to

sleep. Appellant pushed on LeMay's shoulder to demonstrate how he had held the child down.

When asked what the police response should be, appellant stated that he should be allowed to

attend the funeral and that a lesser charge of "involuntary manslaughter" should be filed.

Appellant told the officers that he believed he would receive the death penalty. A third written

statement was taken from appellant following this interview. It tracked much of what appellant

told LeMay orally.

The written statement in part stated:

I feel that I may have had something to do with Jordan's death. I think I killed her

. . . . I was trying to put her to bed and did not want her to get up. So I think I

killed her. I am not a murderer. . . . I am so sorry. I did not mean to hurt her.

I love her . . . . So I took her to her room and laid her down. . . . She wanted to

get back up. So I put my hand on her back to let her know that she needs to lay

down and go nite-nite. I ran out of the room so she would not see me and start

crying. . . . I did not know anything was wrong until in the morning when I found

her. I had no idea that I killed her if I did. But I started feeling really guilty about

it 1 hour after.

Cheryl Lawrence, an investigator with the Texas Department of Protective and

Regulatory Services, testified that on August 13, 1997, she interviewed Krystal Garland and

informed her that appellant had admitted suffocating Jordan. Shortly afterwards, Lawrence and

Krystal Garland met appellant. When he was made aware that Krystal knew of his admission,

appellant did not deny it. Appellant reiterated that he had placed his hand on Jordan's back and

held her so she would understand it was time to go to sleep. Appellant then volunteered to

Lawrence: "It takes at least thirty seconds to kill an animal and longer than that to kill a human

being."

Dr. Robert Bayardo, Travis County Medical Examiner, testified that he performed

the autopsy on Jordan and determined that the cause of death was asphyxial death by suffocation.

He explained that it would take three to five minutes to suffocate a person. The autopsy was

performed at 11:50 a.m. on August 12, 1997. Dr. Bayardo reexamined the body on August 15,

1997, when it was reported that an officer had observed bruises on the body at the funeral home.

He found bruising on the body including a spot in the middle of the forehead and one on the back

of the body. Dr. Bayardo explained that bruises sometime do not appear until two or three days

after death. It was his opinion that the bruises occurred at the time of death although there was

a possibility that they were caused by the embalming process. Dr. Nizan Peerwani, a medical

examiner for Tarrant County, reviewed the files, photographs, police reports, and the autopsy

report. She agreed with Dr. Bayardo except that she would use "smothering" rather than

"suffocation."

Appellant did not testify but called Krystal Garland and his mother as witnesses.

Krystal testified that on the evening in question Jordan was getting "cranky" so appellant put her

to bed. Appellant came out of Jordan's room running and smiling, and stated: "I didn't want her

to see me." Krystal heard Jordan cry for a few minutes after appellant left the room. Krystal

related that before she went to bed at 11:30 p.m. she looked in on Jordan and saw her asleep on

her stomach; that she and appellant were awake at 4:00 a.m. to feed Nathan; and that it was after

8:00 a.m. when appellant came to the bedroom and told her something was wrong with Jordan.

On cross-examination, Krystal denied telling Justice of the Peace Patricia Ott that

Jordan was put down at 8:30 p.m. and that she did not check on Jordan until the next morning.

Krystal stated that at the time of the offense she was suffering from depression, was not working,

and was on probation for writing hot checks. She added that appellant paid the rent and his

mother contributed her disability check for family expenses. Krystal acknowledged that appellant

had emotional difficulties, and she admitted that she and appellant had argued on the evening in

question.

Debra Otting testified that she was disabled, was confined to a wheel chair, and

slept on the living room floor. She related that appellant came home happy on August 11, 1997,

after his first day at a new job at a convenience store; that appellant spent a minute or forty-five

seconds in Jordan's room putting her in bed and that he "dashed" out of the room laughing; that

she heard Jordan crying after appellant left the room; and that Krystal checked on Jordan before

Krystal went to bed.

Debra Otting also testified that appellant got up between 1:00 and 1:30 a.m. and

appeared exasperated. He was mumbling that he had worked all day, that he had to feed Nathan,

and that he was tired. She did not see appellant go into Jordan's room.

In rebuttal, Justice of the Peace Ott testified that Krystal Garland told her that

Jordan had been put down at 8:30 p.m. and that she (Krystal) had not checked on Jordan during

the night.

The Jury Charge and Verdict

The trial court charged the jury on capital murder as alleged in count one of the

indictment, but rejected the requested instructions on the lesser included offenses of manslaughter

and criminally negligent homicide. The trial court also submitted injury to child by intentionally

or knowingly causing serious bodily harm as alleged in count two. The lesser included offenses

of count two--reckless injury to a child and injury to a child by criminal negligence were also

submitted. The jurors were instructed that they could not convict appellant of both capital murder

and injury to a child.

The jury rejected the capital murder count and the count that appellant intentionally

or knowingly caused serious bodily injury to a child. It found appellant guilty of recklessly

causing serious bodily injury to a child.

Factual Sufficiency

The first issue presented is appellant's challenge to the factual sufficiency of the

evidence to support the conviction. A factual sufficiency review begins with the presumption that

the evidence supporting the judgment was legally sufficient. See Clewis v. State , 922 S.W.2d

126, 134 (Tex. Crim. App. 1996). Appellant does not challenge the legal sufficiency of the

evidence. In a challenge to the factual sufficiency of the evidence, we view the evidence without

employing the prism of "in the light most favorable to the verdict." Id. at 129 . A reviewing

court must consider all of the evidence impartially, comparing evidence that tends to prove the

existence of a disputed fact or facts with evidence that tends to disprove the fact or facts. See

Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). The verdict or judgment is to

be set aside only when the factual finding is so against the great weight and preponderance of the

evidence so as to be clearly wrong and unjust. See Clewis , 922 S.W.2d at 129 ; Stone v. State ,

823 S.W.2d 81 , (Tex. App.--Austin 1992, pet. ref'd untimely filed).

In the factual sufficiency analysis, it must be remembered that the trier of fact is

the sole judge of the credibility and weight of the testimony. See Santellan , 939 S.W.2d at 164 .

An appellate court should be on guard not to substitute its own judgment in these matters for that

of the trier of fact. See id . One principle of the factual sufficiency analysis is deference to the

findings of the jury or other fact finder. See Cain v. State , 958 S.W.2d 404, 407 (Tex. Crim.

App. 1997). "A decision is not manifestly unjust merely because the jury [or fact finder] resolved

conflicting views of the evidence in favor of the State." Id . at 410. A court of appeals is not at

liberty to "engage in fact-finding." Id . at 409.

Appellant recognizes that a defendant who invokes the benefit of a lesser included

offense at trial is estopped from complaining on appeal that the evidence is legally insufficient to

support a conviction of the lesser offense. See State v. Lee , 818 S.W.2d 778, 781 (Tex. Crim.

App. 1981), overruled on other grounds, Moore v. State , 969 S.W.2d 4, 10 (Tex. Crim. App.

1998); see also State v. Yount, 853 S.W.2d 6, 9 (Tex. Crim. App. 1993); Taylor v. State, 947

S.W.2d 698, 702 (Tex. App.--Fort Worth 1997, pet. ref'd); Scott v. State, 867 S.W.2d 148, 154

(Tex. App.--Austin 1993, no pet.); Tamez v. State, 865, S.W.2d 518, 519-20 (Tex. App.--Corpus

Christi 1993, pet. ref'd). Appellant agrees that the reasoning behind the rule is sound. The case

law is clear that in a situation where a defendant requests or does not object to the submission of

a lesser included offense, and thereby accepts the benefit of such a charge in the trial court's jury

instructions, the defendant is estopped from thereafter challenging the legal sufficiency of the

evidence. See Taylor , 947 S.W.2d at 702 (citing Grant v. State , 950 S.W.2d 450, 451 (Tex.

App.--Beaumont 1997, pet. ref'd)); see also Torres v. State , 979 S.W.2d 668, 671 (Tex. App.--San

Antonio 1998, no pet.) (involving reckless injury to a child conviction).

Appellant contends that it makes no sense to extend the rule of estoppel to a factual

sufficiency challenge. Cases, however, have been decided contrary to appellant's contention. See

Reaves v. State , 970 S.W.2d 111, 118 (Tex. App.--Dallas 1998, no pet.); Bisco v. State , 964

S.W.2d 29, 30 (Tex. App.--Tyler 1997, pet. ref'd). We conclude that appellant is estopped from

challenging the factual sufficiency of his conviction for reckless injury to a child because he did

not object to and received the benefit of the instruction on the lesser included offense.

Moreover, even if the rule of estoppel is not applicable, we have applied the factual

sufficiency standard of review to the instant case. We have examined all of the evidence

impartially, and giving due deference to the jury's verdict, we conclude that the verdict is not so

contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Issue one as

presented is without merit. The first issue is overruled.

Failure to Charge on Lesser Included Offenses

The second and third issues present the question whether the trial court erred in

refusing to charge the jury on the lesser included offenses of capital murder--manslaughter and

criminally negligent homicide. Appellant urges that with regard to these lesser included offenses,

the Royster test was met. See Royster v. State , 622 S.W.2d 442, 446 (Tex. Crim. App. 1981);

see also Rousseau v. State , 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). (5) Moreover, the

record reflects that appellant timely objected to the failure to include the lesser included offenses

and presented special requested charges. See Tex. Code Crim. Proc. Ann. arts. 36.14, 36.15

(West Supp. 1999).

The State does not take issue with appellant about the satisfaction of the

Royster--Rousseau test or that appellant timely preserved error if there was one. The State takes

the position that the age of the child-victim was undisputed (one year and 25 days), and if the

offense was not capital murder of a child under the age of six years as alleged in count one, the

more specific lesser offense would be injury to a child of the age of 14 years or younger as

provided by section 22.04(a)(1) of the Penal Code. The State appears to argue that the submission

of the alternative second count--intentionally or knowingly causing serious bodily injury to a

child--and the lesser included offenses to that count eliminated the necessity of charging on

manslaughter and criminally negligent homicide as requested by appellant. This "special controls

over the general" type of argument was also presented to the trial judge who thereafter denied

appellant's special requested jury charges. The State cites no authority on point that evidence of

an undisputed element of a capital murder charge may limit or eliminate the necessity of the

submission of lesser included offenses (to which a party may be otherwise legally entitled) because

the undisputed element of capital murder is not part and parcel of the lesser included offenses

requested.

Article 37.09 provides in pertinent part: "An offense is a lesser included offense

if: (1) it is established by proof of the same or less than all the facts required to establish the

commission of the offense charged . . . (3) it differs from the offense charged only in respect that

a less culpable mental state suffices to establish its commission." Tex. Code Crim. Proc. Ann.

art. 37.09(1) (West 1981). The word "individual" is used in both the manslaughter and criminally

negligent homicide statutes. See Tex. Penal Code Ann. §§ 19.04 , 19.05 (West 1994).

"Individual means a human being who has been born and is alive." Tex. Penal Code Ann. §

1.07 (a)(26) (West 1994). An individual includes a child under the age of six. If evidence from

any source raises the issue of a lesser included offense or a defensive theory, it must be included

in the court's charge. See Marras v. State , 741 S.W.2d 395, 405 (Tex. Crim. App. 1987). This

is particularly true where the defendant objects to the omission of the charge or presents a special

requested charge. See Posey v. State , 966 S.W.2d 57, 61 (Tex. Crim. App. 1998). Moreover,

if it be the State's position that the offense of injury to a child is a lesser included offense of

capital murder of a child under the age of six, it has made no effort to demonstrate the same. We

do not reach that issue in view of the State's pleadings and the circumstances of the instant case.

We do not agree with the State's contention. We conclude that it was error for the trial court to

have refused to charge on the lesser included offenses of manslaughter and criminally negligent

homicide.

Having determined that there was error in the charge, we must now decide if

sufficient harm was caused by the error to require a reversal. See Hutch v. State , 922 S.W.2d

166, 170 (Tex. Crim. App. 1996). The error, being a jury charge error, must be reviewed for

harm under article 36.19 of the Code of Criminal Procedure (6) as interpreted by Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). As Almanza explains, article 36.19

separately contains the standard for both fundamental error and ordinary reversible error. See id .

Error properly preserved by an objection will require reversal "as long as the error is not

harmless." Id . This has been interpreted to mean any harm regardless of degree. See Hutch , 922

S.W.2d at 171 (citing Arline v. State , 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)). If no

proper objection is made and the error is not preserved, a greater degree of harm is required. The

accused must claim "fundamental" error, and he will obtain a reversal only if the error is

egregious and creates such harm that he has been deprived of "a fair and impartial trial--in short

'egregious harm.'" Almanza 686 S.W.2d at 171 ; see also Bailey v. State , 867 S.W.2d 42, 43

(Tex. Crim. App. 1993).

In both situations, the actual degree of harm must be assayed in light of the entire

jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole.

Almanza , 686 S.W.2d at 171 .

Even though a defendant preserves error by timely objection or requested

instructions, as in the instant case, the burden of proof lies with the defendant to persuade the

reviewing court that he suffered some actual harm as a consequence of the charging error. If he

does not sustain his burden, the error will not result in the reversal of the conviction. See Abdnor

v. State , 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). The error's harmfulness must be

measured, at least in part, against the likelihood that the jury's verdict was actually based on

another theory of culpability unaffected by the erroneous jury charge. See Atkinson v. State , 923

S.W.2d 21, 27 (Tex. Crim. App. 1996); Govan v. State , 682 S.W.2d 567, 570-71 (Tex. Crim.

App. 1986), overruled on other grounds, Brown v. State , 716 S.W.2d 939, 945 (Tex. Crim. App.

1986); Scott v. State , 768 S.W.2d 308, 309-10 (Tex. Crim. App. 1989). Thus, the defendant may

prevail on appeal only if he shows some actual harm regardless of the theory on which the jury

based its verdict. See Atkinson v. State , 934 S.W.2d 896, 897 (Tex. App.--Fort Worth 1996, no

pet.).

If the absence of instructions on the lesser included offenses requested and to which

the defendant is entitled, leaves the jury with the sole option either to convict the defendant of the

charged offense or to acquit him, a finding of harm is essentially automatic because the jury was

denied the opportunity to convict him of the lesser included offenses. See Saunders v. State , 913

S.W.2d 564, 571 (Tex. Crim. App. 1995). This is true because the jury, believing the accused

to have committed some crime but given the option only to convict him of the greater offense,

may choose to convict him of the greater offense, rather than acquit altogether, even though it had

a reasonable doubt he really committed the greater offense. See id . at 571 (citing Beck v.

Alabama , 447 U.S. 625, 634 (1980)).

A different situation may occur as explained in Jiminez v. State :

A different situation is presented if the trial court submitted one lesser included

offense raised by the evidence while declining to submit another that was also

raised. Under this circumstance, the jury's options were not limited to conviction

of the greater offense or acquittal, and the risk that the jury convicted of the

greater offense despite a reasonable doubt is not so apparent. If the jury harbored

a reasonable doubt as to the defendant's guilt of the charged offense but at the same

time believed him guilty of some offense, it was not forced to choose between

conviction and acquittal, but had the option of convicting him of a lesser offense

that was submitted. That it did not do so may indicate that the failure to give the

other lesser included offense instruction was harmless error. Saunders , 913

S.W.2d at 572 .

Jiminez , 953 S.W.2d 293, 300 (Tex. App.--Austin 1997, pet. ref'd).

In Saunders , it was held that the failure to instruct on one lesser included offense

(criminally negligent homicide) did not per se engender some harm to the defendant convicted of

the greater offense charged (murder of a five-month-old infant) where the court did charge on a

different lesser included offense of murder (involuntary manslaughter). The reviewing court

reasoned that the charge error was harmless because the jury convicted the defendant of the

greater offense of murder and not the lesser offense of involuntary manslaughter. Thus, since the

jury would not have convicted Saunders of murder if it had harbored a reasonable doubt as to

Saunders's intent, the omission of the charges on criminal negligent homicide was harmless. See

Saunders , 913 S.W.2d 573 -74; see also Jiminez , 953 S.W.2d at 300 ; Irizarry v. State , 916

S.W.2d 612, 615 (Tex. App.--San Antonio 1996, pet. ref'd). Cf. Montelongo v. State , 681

S.W.2d 47, 54-55 (Tex. Crim. App. 1984).

In the instant case, the jury was not required by the court's charge to convict on

the greater offense or to acquit. Unlike the foregoing cases, the instant case did not involve a

conviction on the greater offense despite any flaw in submitting lesser included offenses. The

cases are, however, instructive.

Here, the trial court submitted the greater offense (capital murder of a child) as

alleged in count one as well as the offense of intentionally or knowingly causing serious bodily

injury to a child as alleged in count two. The jury convicted appellant of recklessly causing

serious bodily injury to a child, a lesser included offense to the offense charged in the second

count which had been submitted with another lesser included offense of the second count--causing

serious bodily injury to a child by criminal negligence. Appellant was entitled to jury instructions

on manslaughter and criminally negligent homicide, both lesser included offenses of capital

murder, but we conclude that the error was harmless for the reasons which follow.

Manslaughter and recklessly causing serious bodily injury are both second degree

felonies (7) and carry the same range of penalty. (8) Both offenses involve the same culpable mental

state of "reckless" or "recklessly." Criminally negligent homicide and causing serious bodily

injury to a child by criminal negligence are both state jail felonies (9) and carry the same range of

penalty. (10) Both involve the same culpable mental state--criminal negligence. The jury by its

verdict obviously rejected the offenses with culpable mental states of "intentionally or

knowingly"-- capital murder and injury to a child both as charged and submitted to the jury. The

jury chose to convict on the lesser included offense of the second count--recklessly causing serious

bodily injury to a child--although it had the option of convicting on causing serious bodily injury

to a child by criminal negligence. If appellant was guilty of the excluded manslaughter offense,

he was also guilty of recklessly causing serious bodily injury to a child as found by the jury, an

offense with the same penalty range. If appellant was guilty of criminally negligent homicide, he

was also guilty of causing serious bodily injury to a child by criminal negligence, an offense with

the same penalty range which the jury chose to by-pass. This demonstrates the likelihood that the

jury's verdict was unaffected by the erroneous jury charge. See Atkinson , 923 S.W.2d at 27 .

Nonetheless, appellant contends the jury charge error resulted in some harm

because the jury assessed the maximum punishment of 20 years' imprisonment. We find that

there were factors involved other than any jury charge error. At the penalty stage of the trial,

Lieutenant Mary Ryle testified that appellant's reputation for being a peaceful and law-abiding

citizen was bad. Captain LeMay, another police officer, confirmed that fact and described

appellant as having been dangerous for a long time. LeMay testified that appellant, as a juvenile,

had been adjudicated for a series of sexual offenses involving younger children. Appellant's

mother related that in 1990 she had reported appellant to the police for exposing himself to other

children and for setting fires. She acknowledged that appellant had an impulse control problem

and experienced extreme temper outbursts. She contended, however, that after three years in a

residential treatment center as a result of juvenile adjudication, appellant no longer had such

problems.

This evidence as well as the evidence at the guilt-innocence stage of the trial was

before the jury when it assessed punishment and would have been before the jury if manslaughter

had been submitted and the jury had convicted appellant of that offense at the first stage of the

bifurcated trial.

Appellant still urges "some harm" because of the prosecutor's argument at the

penalty stage of the trial. Appellant calls attention to three unobjected-to portions of the argument

lifted out of context. We have examined the same and find the argument to have been a proper

summation of the evidence and a plea for law enforcement. See Norris v. State , 902 S.W.2d 428,

444-45 (Tex. Crim. App. 1995); Cook v. State , 855 S.W.2d 467, 476-77 (Tex. Crim. App.

1993); Gravis v. State , 982 S.W.2d 933, 936-37 (Tex. App.--Austin 1998, pet. ref'd). The

argument was within the four permissible areas of prosecutorial argument. See Sterling v. State ,

830 S.W.2d 114, 121 (Tex. Crim. App. 1992); Alejandro v. State , 493 S.W.2d 230, 231 (Tex.

Crim. App. 1973). A prosecutor may argue opinions concerning the issues in the case so long

as the opinions are based on the evidence in the record and do not constitute unsworn testimony.

See Wolfe v. State , 917 S.W.2d 270, 281 (Tex. Crim. App. 1996). Appellant has failed to show

how this now complained-of argument could not have been made if the trial court had charged on

manslaughter or criminally negligent homicide at the guilt-innocence stage of the trial.

Appellant's reliance upon Chase v. State , 968 S.W.2d 943 (Tex. App.--Eastland 1998, pet. ref'd)

is misplaced. In Chase , it was held that the prosecutor's jury argument could not have been made

at the penalty stage of the trial even if the requested lesser included offense had been submitted

at the guilt-innocence stage. Id . at 946. Even if that reasoning is sound, the instant argument is

clearly distinguishable from the one in Chase . (11) Appellant's second and third issues are overruled

after considering all the factors of Almanza .

The judgment is affirmed.

John F. Onion, Jr., Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Onion *

Affirmed

Filed: December 2, 1999

Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

1. See Tex. Penal Code Ann. § 19.03 (a)(8) (West 1994).

2. See Tex. Penal Code Ann. § 22.04 (a)(1) (West 1994).

3. See Tex. Penal Code Ann. § 19.04 (West 1994).

4. See Tex. Penal Code Ann. § 19.05 (West 1994).

5. The Royster--Rousseau test requires that the lesser included offense must be included

within the proof necessary to establish the offense charged, and some evidence must exist 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. See Rousseau , 855 S.W.2d at 672-73 ; see also Skinner v. State , 956 S.W.2d

21 , 24 (Tex. Crim. App. 1997).

6. Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981). Article 36.19 is applicable to any

violation of the requirements of articles 36.14 to 36.18 of the Code of Criminal Procedure.

Article 36.14 requires the trial court to deliver to the jury "a written charge distinctly setting forth

the law applicable to the case." Tex. Code Crim. Proc. Ann. art. 36.14 (West Supp. 1999).

7. See Tex. Penal Code Ann. §§ 9.04 (b); 22.04(e) (West 1994).

8. See Tex. Penal Code Ann. § 12.33 (West 1994). An individual guilty of a second

degree felony shall be punished by imprisonment for not more than 20 years or less than 2 years,

and by a fine not to exceed $10,000.

9. See Tex. Penal Code Ann. §§ 19.05 ; 22.04(g) (West 1994).

10. See Tex. Penal Code Ann. § 12.35 (West 1994). An individual guilty of a state jail

felony shall be punished by confinement in a state jail for not more than two years or less than

180 days, and by a fine not to exceed $10,000. A deadly weapon finding as in the instant case

would make the offense a third degree felony. See Tex. Penal Code Ann. § 12.35 (c)(1).

11. Chase involved a one-count indictment charging the defendant with capital murder of

a child under the age of six. At the guilt-innocence stage of the trial, the trial court charged the

jury on capital murder, and at the defendant's request, without regard to whether injury to a child

was a lesser included offense to capital murder, charged on "intentionally," "recklessly," and

"negligently" causing serious bodily injury. The trial court then refused to charge on involuntary

manslaughter, a lesser included charge of capital murder supported by the evidence when

requested by the defendant. The jury convicted the defendant of recklessly causing serious bodily

injury to a child and assessed the maximum punishment. The reviewing court held that the refusal

to charge on involuntary manslaughter was error. Noting that a timely objection had been made,

the court concluded "some harm" had been shown because of the length of deliberations at the

guilt-innocence stage of the trial and the prosecutor's argument at the penalty stage. The

prosecutor had argued, inter alia , that: "There is no more serious injury than what we have here

[the death of the child]" and "there is no more extreme injury that could be caused. What we

have here is the death of a child." Chase , 968 S.W.2d at 946 . The court obviously did not

examine the statutory definition of "serious bodily injury" which includes death. See Tex. Penal

Code Ann. § 1.07 (a)(46) (West 1994). Moreover, no mention was made of Saunders, Irizzary,

or Jiminez . We do not deem Chase controlling and decline to follow it.

affirmed.