Kyron Dylnn Adams v. State ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00178-CR
KYRON DYLNN ADAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 46,639-B
Before Morriss, C.J., Burgess and Carter,* JJ.
Memorandum Opinion by Justice Burgess
________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
Kyron Dylnn Adams appeals his conviction for murder. 1 After reviewing the record and
applicable law, we find that the trial court did not err in denying Adams’ Batson complaint or in
refusing Adams’ request for a lesser-included offense instruction in the court’s charge to the jury.
We affirm the trial court’s judgment and sentence.
I. Factual Background
Adams shot Thomas Harper in the back, in the early morning hours of February 4, 2017,
in the parking lot outside J’s Place, a nightclub in Longview. 2 According to the testimony, Harper
had previously attacked Adams’ friend, Kenneth Fiengo, rendering Fiengo unconscious. Witness
Michael Allison, a friend of Harper’s, testified that after Harper hit Fiengo, Adams approached
Harper and the men sparred a bit, then parted ways. Allison then saw Adams travel along side the
building and fire one shot at Harper. Adams then went behind the building, out of Allison’s view.
Subsequently, Allison heard two more shots. 3 Allison said Adams retrieved the gun from a car
after his initial fight with Harper. Harper was dead by the time law enforcement and emergency
personnel arrived.
1
See TEX. PENAL CODE ANN. § 19.02(b)(1). Adams was sentenced to seventy-five years’ incarceration.
2
Harper’s autopsy indicated he had been shot in the back, with an exit wound from his chest, from at least two feet
away.
3
Three shell casings were found at the scene.
2
II. Adams’ Batson Claim
After the parties conducted voir dire—but before the trial court seated the jury—Adams
claimed the State had improperly used two of its peremptory strikes against African-American
members of the venire. Adams only complains of one of these strikes on appeal.
A. Standard of Review
Although Texas law allows parties to make peremptory strikes of venirepersons following
voir dire, 4 such strikes cannot be used to violate a party’s Equal Protection Clause rights by striking
venirepersons because of their race. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); see also U.S.
CONST. amend. XIV, § 1. In Colone v. State, the Texas Court of Criminal Appeals succinctly
summarized the law and procedure regarding Batson challenges:
In Batson v. Kentucky, the Supreme Court held that the Equal Protection Clause of
the Fourteenth Amendment prohibits the State from exercising a peremptory
challenge against a juror on the basis of race. A three-step process is used to
analyze Batson claims: (1) the opponent of the peremptory challenge must present
a prima facie case of racial discrimination, (2) if that is done, the burden shifts to
the proponent of the peremptory challenge to present a race-neutral reason for the
challenge, and (3) if that is done, the trial court must then determine whether the
opponent has proven purposeful racial discrimination. We will assume that the
State’s allegation that it had race-neutral reasons for the peremptory challenge
renders step one of the Batson analysis moot. At step two, the proponent of the
peremptory challenge need only tender an explanation that is racially neutral on its
face. If the explanation at the second step is determined to be race neutral, then at
step three, the opponent of the peremptory challenge bears the burden of persuasion
to show that the race-neutral explanation is not genuine (that the peremptory
challenge was indeed a product of purposeful discrimination).
Colone v. State, 573 S.W.3d 249, 262–63 (Tex. Crim. App. 2019) (footnotes omitted)
(citations omitted).
4
See TEX. CODE CRIM. PROC. ANN. art. 35.15(b).
3
B. Discussion
At trial, Adams argued that the State had “conducted meaningless voir dire” with the
venireperson at issue. The State responded that the venireperson was a postal worker and that it
“ha[d] struck anyone who work[ed] for the United States Postal Service.” The State continued,
“If there had been more than one United States Postal worker on here, they would have all been
struck.” Adams offered no rebuttal to the State’s explanation.
The fact that a venireperson is employed with the United States Post Office has been held
to be a racially neutral reason for exercising a peremptory strike. See Tompkins v. State, 774
S.W.2d 195, 206 (Tex. Crim. App. 1987); Leadon v. State, 332 S.W.3d 600, 614 (Tex. App.—
Houston [1st Dist.] 2010, no pet.). Consequently, once the State explained its basis for striking
the venireperson in question, it established a race-neutral basis for exercising the strike, and Adams
then bore the burden to rebut the State’s proffered reason. Nevertheless, Adams “[made] no
attempt to show that this race-neutral explanation [was] not genuine or to show purposeful racial
discrimination.” Colone, 573 S.W.3d at 263. Accordingly, Adams failed to rebut the State’s race-
neutral reason, and the trial court did not err in overruling his Batson complaint. We overrule the
first point of error. 5
5
In his brief, Adams directs us to Keeton v. State, 749 S.W.2d 861 (Tex. Crim. App. 1988), for the proposition that
“[g]eneral assumptions about occupational or group bias against a party do not justify a strike in the absence of
evidence that the particular veniremen bears any other undesirable characteristics.” This is not a correct reading of
Keeton. To the extent Keeton references improper use of one’s occupation as a potential pretext for racial
discrimination, those mentions are, at most, dicta. See id. at 867, 868. The challenged strikes in Keeton were held to
be race neutral. The State’s reasons for the strikes were: one venireperson had a close relationship to the defendant
and his family, one evinced a bias against the State because he had been prosecuted for and convicted of a
misdemeanor by the State, and one said he would hold the State to a higher burden of proof because it was a death
penalty case. Id. at 870.
4
III. Adams Was Not Entitled to Instruction on Criminally Negligent Homicide
In his second point of error, Adams claims the trial court should have instructed the jury on the
lesser-included offense of criminally negligent homicide. 6 Because the record does not show that
Adams failed to appreciate the risk of wielding a pistol in the middle of an altercation, we find that
he was not entitled to the requested instruction.
A. Standard of Review
In order to be entitled to a lesser-included-offense instruction, the record must “contain
some affirmative evidence that would permit a jury rationally to find that, if a defendant is guilty,
he is guilty only of the lesser-included offense.” Nguyen v. State, 506 S.W.3d 69, 81 (Tex. App.—
Texarkana 2016, pet. ref’d) (citing Schmidt v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009)).
Thus, “[t]he evidence must establish the lesser-included offense as a valid rational alternative to
the charged offense.” Id. (citing Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex. Crim. App.
2000)). “Anything more than a scintilla of evidence is sufficient to entitle a defendant to an
instruction on the lesser charge.” Id. (citing Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App.
2001)).
“However, if a defendant . . . presents no evidence and there is no affirmative evidence
otherwise showing he is guilty only of a lesser-included offense, then a charge on a lesser-included
offense is not required.” Id. (citing Bignall v. State, 887 S.W.2d 21, 22–24 (Tex. Crim. App.
1994); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)). Additionally, “it is not
6
“Criminally negligent homicide is a lesser included offense of murder.” Saunders v. State, 840 S.W.2d 390, 391
(Tex. Crim. App. 1992) (per curiam).
5
enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather,
there must be some evidence directly germane to the lesser-included offense for the finder of fact
to consider before an instruction on a lesser-included offense is warranted.” Hampton v. State,
109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on other grounds by Grey v. State, 298
S.W.3d 644 (Tex. Crim. App. 2009). To be entitled to a jury instruction on criminally negligent
homicide, the record must contain some evidence the actor “failed to perceive the risk created by
his conduct.” Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d); see Still v. State, 709 S.W.2d 658, 660 (Tex. Crim. App. 1986).
B. Discussion
In this case, there is no evidence that Adams failed to perceive the risk of firing a firearm
in response to what he described as a wrestling match or fistfight. Adams testified that after Harper
knocked Fiengo unconscious, he threatened Adams and chased him. Adams said he fled to his car
where his friend Miguel Berrospe was sitting. 7 Yet, rather than lock the car door or drive away,
Adams told Berrospe to “give [Adams] the gun.” Adams testified that when he let go of the car
door to put the gun in his pocket, Harper opened the car door and grabbed him, and the two then
fought outside the car. According to Adams, Harper put him in a choke hold, and he was beginning
to blackout when, Adams testified, he “just start[ed] shooting until he let me go.” Adams testified
that he did not see Harper again after that.
7
Berrospe testified he was very intoxicated that night at J’s Place. He did not remember anything after taking Xanax,
cocaine, and shots of liquor, which he did in the parking lot before entering the club.
6
“[T]here must be some evidence that the defendant was guilty only of reckless or negligent
conduct before an instruction on the lesser offense is required.” Navarro v. State, 863 S.W.2d 191,
206 (Tex. App.—Austin 1993), pet. ref’d, 891 S.W.2d 648 (Tex. Crim. App. 1994). The Texas
Court of Criminal Appeals explained the nature of criminal negligence—as compared to
recklessness—as follows:
[R]eckless conduct . . . involves,
conscious risk creation, that is, the actor is aware of the risk
surrounding his conduct or the results thereof, but consciously
disregards that risk. . . . Criminal negligence involves inattentive risk
creation, that is, the actor ought to be aware of the risk surrounding
his conduct or the results thereof. At the heart of reckless conduct
is conscious disregard of the risk created by the actor’s conduct; the
key to criminal negligence is found in the failure of the actor to
perceive the risk.
Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985) (quoting Lewis v. State, 529 S.W.2d
550, 533 (Tex. Crim. App. 1975)).
In Thomas, the Texas Court of Criminal Appeals noted that in previous cases, the courts
considered two factors in determining whether a charge on criminal negligence should have been
given: “whether a defendant pointed a loaded gun at another and whether the weapon accidentally
discharged.” Id. Yet, the Texas Court of Criminal Appeals also noted that mere reliance on these
two factors was not adequate to evaluate the necessity of a criminal negligence charge because
“[e]very case in which someone points a loaded gun at another does not require that a charge on
criminally negligent homicide be given. Nor does the allegation of accidental discharge
necessarily raise the issue.” Id. at 850. Instead, the Court of Criminal Appeals noted, “The
attendant circumstances from which the defendant’s mental state can be inferred must be
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collectively examined in light of the definition of criminally negligent conduct.” Id. Thus, it
rejected previous cases which had held that “the pointing of a loaded weapon [was] sufficient to
raise criminally negligent homicide” and held that “[o]ther evidence raising the issue of whether
or not a defendant was aware of the risk must be presented before such charge is required.” Id.
The Court of Criminal Appeals then noted that testimony or evidence that the accused
“knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he
points a gun at another, indicates a person who is aware of a risk created by that conduct and
disregards the risk” and who is not entitled to an instruction on criminally negligent homicide. Id.
(citing Simpkins v. State, 590 S.W.2d 129, 144 (Tex. Crim. App. [Panel Op.] 1979)). 8 On the other
hand, where there is evidence the defendant “was unfamiliar with firearms, had never seen the
shotgun before and thought it was unloaded” and “grabbed the shotgun from another person,
intending to scare the deceased, and the gun discharged,” those “factors entitled the defendant to
a charge on criminally negligent homicide.” Id. at 851 (citing Moore v. State, 574 S.W.2d 122,
124 (Tex. Crim. App. [Panel Op.] 1978)).
In Thomas, the Court of Criminal Appeals ultimately rejected the defendant’s theory that
he was entitled to a charge on criminal negligence because
[t]he thrust of appellant’s defense, demonstrated through his witnesses and his own
testimony, was self-defense and accident, not an unawareness of risk in exhibiting
a possibly loaded gun under the circumstances. In fact, appellant testified that he
was afraid of Roy and that he was afraid that if Roy took the gun away from
appellant[,] Roy would shoot appellant. This testimony reflects an awareness of
8
Simpkins testified that “he had qualified on the rifle range in the Army and that he knew weapons were dangerous.”
Simpkins v. State, 590 S.W.2d 129, 134 (Tex. Crim. App. [Panel Op.] 1979).
8
the risk of injury or death involving the use or exhibition of the gun under the
circumstances of the offense.
Id. at 852.
This case is even further removed from criminal negligence than Thomas. In Thomas, the
defendant testified that “he did know how the gun fired.” Id. at 849. He also testified that “in
order to fire the gun[,] two steps were necessary. First, it had to be cocked; secondly, the trigger
had to be pulled.” Id. at 852. He then testified that he “did not recall ever cocking the gun and
denied that he intended to fire it or that he fired it at all. He said that when he pushed Roy[,] the
gun discharged.” Id. In the present case, Adams testified that as he was blacking-out, he “just
start[ed] shooting until [Harper] let [him] go.” Thus, there is no evidence in the present case that
would support a finding that Adams failed to perceive the risk attendant to firing a firearm.
Moreover, although there is no specific evidence of Adams’ familiarity with the firearm in
this case, a firearm is a deadly weapon per se. See TEX. PENAL CODE ANN. § 1.07 (Supp.); Ex parte
Franklin, 757 S.W.2d 778, 782 (Tex. Crim. App. 1988) (orig. proceeding). Where a firearm is the
method of causing death, an intent to kill may be inferred from the accused’s use of a deadly
weapon per se. See Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. [Panel Op.] 1982)
(op. on reh’g). Thus, merely pointing to an absence of evidence that he was familiar with firearms
is not sufficient to establish that Adams failed to perceive the risk associated with firing a firearm
towards Adams.
A somewhat similar situation was presented in Jackson v. State, 248 S.W.3d 369 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d). In that case, the defendant, Jackson, was engaged in
a verbal altercation with the victim. Id. at 370. In statements at the scene the following day,
9
Jackson stated that he had been quarrelling with the victim at Jackson’s home. Jackson first told
officers at the scene that the victim struck him in the head, but the next day, Jackson told police
that the victim did not strike him, but merely confronted him. However, in both statements,
Jackson said he pulled a gun from his pocket which accidentally discharged as the two men
struggled over it. Id. at 370–71. Although Jackson did not testify at trial, he argued that the trial
court erred in denying his request for an instruction on criminally negligent homicide. Id. at 371.
The Houston Fourteenth Court of Appeals held that “[w]here the defendant kills another
person with a deadly weapon per se, more than speculation of this sort is required before the
submission of an instruction on . . . criminally negligent homicide is necessary.” Id. at 372 (quoting
Navarro, 863 S.W.2d at 206). It concluded that the record did not entitle the appellant to the
requested instruction on criminally negligent homicide. The Houston court stated,
Evidence that appellant drew a handgun, a deadly weapon per se, from his pocket
in response to a threat by [the victim] does not alone raise an inference that
appellant was unaware of the risk posed by that conduct. To the contrary, drawing
a deadly weapon in response to a physical threat indicates that the actor is not only
aware of the risk posed by the weapon, but is choosing to exploit that risk.
Id. at 372.
As in Jackson, Adams claimed to have been arguing with the victim. A physical altercation
ensued, and Adams said he pulled a pistol from his pocket. The court of appeals in Jackson noted,
“Evidence of accidental discharge may raise an inference that the defendant did not perceive a risk
of injury or death, for example, when evidence is also presented that the defendant was not aware
that the gun was loaded.” Id. at 373 (citing Levan v. State, 93 S.W.3d 581, 585 (Tex. App.—
Eastland 2002, pet. ref’d)). Yet, unlike the defendant in Jackson, who claimed the weapon
10
accidentally discharged, Adams testified that when Harper put him in a choke hold, he “just
start[ed] shooting until [Harper] let [him] go.” Thus, this case presents even less justification for
a lesser-included instruction on criminally negligent homicide than was present in Jackson.
In his brief, Adams argues Moore v. State is controlling. We do not agree. The defendant
in Moore testified that she “grabbed [the] shotgun [which killed the decedent] by the barrel”
intending “to scare the deceased, but did not intend to point it at the deceased or pull the trigger.”
Moore v. State, 574 S.W.2d 122, 124 (Tex. Crim. App. [Panel Op.] 1978). She said “afterwards
[she] could not believe that it had discharged. She further testified that she had never seen the
shotgun before and thought it was unloaded.” Id. Also, she said that “she was unfamiliar with
firearms and had fired a gun only once, twenty years previously.” Id. The responding law
enforcement officer testified that upon his arrival, Moore “was frantic and kept repeating that ‘she
shot him, and she did not know the gun was loaded.’” Id.
Yet, as the court noted in Jackson, “[D]rawing a deadly weapon in response to a physical
threat indicates that the actor is not only aware of the risk posed by the weapon, but is choosing to
exploit that risk.” Jackson, 248 S.W.3d at 372. Here, as in Jackson, the “appellant cites neither
evidence that he was unaware that the gun was loaded nor evidence otherwise indicating that he
did not appreciate the risk posed by the weapon.” Id. at 373. Unlike the appellant in Moore, there
was no testimony or evidence Adams did not think the pistol was loaded. He knew the gun was
present because he asked Berrospe for it. And he acknowledged shooting the gun in response to
Harper allegedly choking him. Consequently, Adams was not entitled to his requested jury charge
11
instruction on the lesser offense of criminally negligent homicide. We overrule Adams’ second
point of error.
IV. Conclusion
For all of the foregoing reasons, the trial court’s judgment and sentence are affirmed.
Ralph K. Burgess
Justice
Date Submitted: July 15, 2019
Date Decided: August 20, 2019
Do Not Publish
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