Kelvin Lee Roy v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00010-CR
________________
KELVIN LEE ROY, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B140221-R
________________________________________________________________________
MEMORANDUM OPINION
Kelvin Lee Roy appeals his murder conviction. See Tex. Penal Code Ann. §
19.02(b)(2). In two issues, Roy argues 1) the evidence was legally insufficient to
demonstrate that he intended to cause serious bodily injury and intentionally
committed a dangerous act, and 2) the evidence only supports that he was guilty of
manslaughter, not murder. For the reasons explained below, we affirm as modified.
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Background
As Roy confines our legal sufficiency review to whether the evidence was
sufficient to demonstrate his intent to commit murder under Penal Code section
19.02, we limit our discussion to the witness testimony relevant to that issue.
On February 7, 2014, fourteen-year-old A.B. and her mother were in the
family’s van driving southbound on Main Street in Vidor, Texas, when they stopped
on the downward decline of a railroad crossing for a red stoplight. 1 The decline at
the railroad crossing was such that only one car could be on the downward decline
if a red light had stopped traffic. At the same time, Roy, driving a sedan southbound
on Main Street in Vidor, struck the rear of the van with such force that it essentially
destroyed the van on the passenger side, causing A.B. to be ejected from the van in
the collision. Roy’s sedan landed upside down when it finally stopped. A.B. died
from the injuries she received in the collision. Roy had minor injuries. But his
passenger and girlfriend, T.B., was hospitalized for two months due to the injuries
she suffered in the collision.
T.B. testified that on February 7, 2014, she and Roy left their home late in the
evening to get T.B. dinner at a fast food restaurant in Beaumont, Texas. T.B. testified
1
We refer to the victims and their family members with pseudonyms or
initials to conceal their identity. See Tex. Const. art. I, § 30(a)(1) (granting crime
victims “the right to be treated with fairness and with respect for the victim’s dignity
and privacy throughout the criminal justice process”).
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that the quickest route to the fast food restaurants from their home was via Interstate
10; however, Roy passed the exit and continued travelling east on Interstate 10,
toward Vidor. T.B. explained that she questioned Roy about missing his exit. In
response, he told her to “shut the F up.” After that, Roy then took out a “dip
cigarette[,]” which he smoked. 2
At that point, T.B. began asking Roy to pull over and get off the freeway. Roy
ignored her requests. According to T.B., Roy was driving slowly and drifting
between lanes. She feared they were going to get run over. T.B. testified that Roy
was acting like a crazy person, laughing, and repeating the phrase “one deep[.]”
Scared, T.B. lowered her window and began screaming for help. T.B. then told Roy
she did not want to continue their relationship because she was tired of his
“disrespect[]” and him doing “stupid things[.]”
Roy sped up. He took the exit onto Main Street in Vidor and entered the feeder
road. T.B. pleaded with Roy to pull over, but he looked at her and said “shut the F
up[,]” and “that he’ll kill me, he’ll kill both of us[.]” Roy sped up again, merging
into the southbound lane on Main Street. T.B testified she could see cars stopped
ahead at a stop light “over a train track hill[.]” She begged Roy to slow down. Roy
just looked at her, “mashed” the gas, and the sedan flew over the train tracks,
2
It was explained at trial that a “dip” or “dipped” cigarette is a cigarette that
has been dipped in Phencyclidine, otherwise known as PCP.
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crashing into the van. According to T.B., their car “dived” into the van stopped at
the train crossing, then flipped several times. She also testified Roy never slowed
down or applied his brakes before crashing into the van.
On cross examination, T.B. testified that Roy was acting normally before
smoking the dipped cigarette, but that afterwards, he did not seem rational. She
described that she had seen Roy use PCP on other occasions, but she had never seen
him rendered “unconscious” after using PCP.
Michael Stephenson, who was also driving in the eastbound lanes of Interstate
10 on the day Roy struck the van, observed Roy’s sedan in the eastbound traffic on
Interstate 10. Stephenson explained traffic in the eastbound lanes began backing up
as he approached Vidor. He noticed Roy’s sedan in the left-hand lane, travelling
around 45 miles per hour, and being driven on the shoulder of the highway. Then,
the sedan crossed three lanes of Interstate 10, onto the other side of the highway.
Stephenson testified the sedan was being driven recklessly. He also stated that he
called the police and reported what he had seen.
Joshua Bryan testified that he was traveling southbound on Main Street when
he saw the sedan collide with the van. According to Bryan, he was a passenger in a
vehicle being driven by a coworker, which had stopped at a red light just north of
the crossing. After the vehicle Bryan was in stopped near the crossing, Bryan noticed
a “a car come (sic) speeding around us at - - I’m no expert but I’m going to say [Roy]
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was doing 45, 50 miles an hour when he come around us.” Roy’s sedan, according
to Roy, almost hit the curb after it passed them. Bryan testified that he never saw the
brake lights on Roy’s sedan and that he heard Roy revving the engine to the sedan
when he went around them. According to Bryan, Roy never tried to stop before he
hit the van; instead, based on what Bryan said he saw, Roy “hit the gas instead of
the brake.”
Bryan’s wife, Brittany Monroe, was also a passenger in the co-worker’s car
with Bryan when Roy’s sedan struck the van. She testified that when Roy passed
them, she noticed a “white flash . . . right beside us[,] . . . it was so fast[,] . . . I never
saw any brake lights[.]”
Victoria Andis, a witness who stopped to help the people whose vehicles had
been involved in the crash, testified she approached the van. She explained that she
saw T.B. trying to crawl out the sedan’s window. According to Andis, T.B. had a
broken leg, and she seemed to be scared and emotional. T.B. told Andis that Roy
was under the influence of “something[,]” and he was trying to kill them. On cross
examination, Andis agreed she gave police a signed statement shortly after the crash
in which she had not disclosed that T.B. said he was trying to kill them. But Andis
did tell police during her statement that Roy was driving crazy, was mad, and that
he was under the influence.
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Clint Aslin testified that he was part of a two-man paramedic team that took
Roy to the hospital that night. He testified that Roy had no visible “real injuries[,]”
except for a small laceration above his eye and a hematoma on his forehead. Roy
appeared lethargic but he did respond to “painful stimuli.” He explained T.B. said
she did not want the paramedics to take her to the same hospital where they took
Roy because he had just tried to kill her. Emergency responders took Roy to the
hospital in a separate ambulance. Aslin explained that he was in the ambulance
emergency responders used to take Roy to the hospital. He inserted two “large bore
IVs, 18 gauge IVs in both [of Roy’s] arms.” Roy began to wake up on the way to the
hospital and became combative. Roy pulled out both of his IVs, and he told Aslin he
was not going to the hospital and that he was God. Aslin explained the emergency
responder driving the ambulance pulled over and came to help him chemically sedate
Roy so he could be taken safely to the hospital. Aslin testified he could not determine
whether Roy’s behavior resulted from ingesting an intoxicant or an injury to his
head.
While on cross examination, Aslin testified that he is familiar with substances
like PCP. He described it as a substance that makes some people act irrationally,
super-aggressive, and may cause an individual to suffer from hallucinations. While
Aslin acknowledged he had never encountered anyone rendered “unconscious” from
haven taken PCP, PCP results in a “different altered level of consciousness.”
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Richard Howard testified that he is the patrol captain for the Orange County
Sheriff’s Department. Before working for the Orange County Sheriff’s Department,
Howard worked for the Texas Department of Public Safety, where, for 22 years, he
participated in a “crash reconstruction team.” Howard stated that he participated in
the investigation and reconstruction of the collision between Roy’s sedan and the
van. Based on what he learned in the investigation, Howard expressed his opinion
that Roy’s sedan struck the van with an “extreme amount of force.” Howard agreed,
however, he could not determine from his investigation how fast Roy was traveling
just before the crash occurred. But he still felt that excessive speed was one of the
factors that led to the collision given the fact that the sedan left the ground as it
crossed the train crossing and hit the van. He testified that for the car to be launched
into the air, Roy’s sedan was travelling at “either a constant speed or accelerat[ing].”
Howard described that his investigation included reviewing photographs taken at the
scene. He also spoke to the police officers who went to the scene about whether they
had seen scuff or skid marks to indicate signs of braking marks, but he learned they
saw none. He explained it is less likely to have a vehicle launched into the air if the
driver brakes before impact. Howard also explained he only had one experience with
one case involving an individual who had taken PCP. That person’s behavior was
“different[,] . . . [t]he behavior was aggressive with paranoia.”
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Roy testified in his own defense at trial. According to Roy, he and T.B. were
driving to Vidor on February 7, 2014, to pay a man who repaired the brakes on T.B’s
vehicle. Roy explained that he went to Vidor, but then realized the mechanic was
not home and left. Roy admitted that he smoked a cigarette laced with PCP after
leaving the mechanic’s home. Roy testified that after smoking the cigarette, he
“began feeling like sick and light-headed, dizzy.” Roy explained he felt as if he was
losing consciousness. He also testified this is his normal reaction to PCP. He also
testified about what he saw as he approached the railroad tracks on the night the
collision occurred. He stated:
As I approach the four-way stop sign, it’s like I’m looking and I don’t
- - I don’t know where I’m at. So, I’m like - - I tell [T.B.] - - I’m like
I’m fixing to pull over and let her drive. So, I guess after that, that was
the last thing I can remember telling her.
Roy testified he did not remember the crash, the ambulance ride to the hospital, or
being at the hospital. According to Roy, he woke up in jail. He denied he was angry
with T.B. and denied threatening to kill her.
At the conclusion of the guilt-innocence phase of the trial, the jury found Roy
guilty of murder and sentenced him to eighty years of incarceration in the Texas
Department of Criminal Justice. Roy filed a timely appeal.
Standard of Review
At trial, Roy did not dispute that he struck a van on February 7, 2014. He also
did not dispute that the collision killed A.B. Instead, he argued he did not act
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intentionally with respect to his conduct, which resulted in A.B.’s death. In his
appeal, Roy argues the evidence is insufficient to support the jury’s verdict that he
knowingly or intentionally caused A.B.’s death. In reviewing a defendant’s claim
asserting the evidence in his trial does not support the verdict, we use a familiar
standard of review. We review the evidence admitted in the trial in the light favoring
the jury’s verdict, and we decide whether any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). We give deference to the jury’s responsibility to fairly resolve conflicting
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Hooper, 214 S.W.3d at 13.
Analysis
A person commits the offense of murder if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than manslaughter,
and in the course of and in furtherance of the commission or attempt,
or in immediate flight from the commission or attempt, he commits or
attempts to commit an act clearly dangerous to human life that causes
the death of an individual.
See Tex. Penal Code Ann. § 19.02(b). The indictment in this case alleged that Roy
on or about February 7, 2014, . . . did then and there intend to cause
serious bodily injury to an individual, [T.B.], and did then and there
intentionally commit an act which was clearly dangerous to human life,
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to wit: driving a vehicle in which the said [T.B.] was a passenger into
another vehicle causing the vehicles to collide which said act caused the
death of [A.B.]
Whether the defendant acted while having the required mens rea, that is the
state of mind required under a criminal statute to establish the defendant is guilty, is
a question of fact that the jury decides from the direct and circumstantial evidence
admitted during the defendant’s trial. Brown v. State, 122 S.W.3d 794, 800 (Tex.
Crim. App. 2003) (citing Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App.
1998)). “Intent to murder can be inferred from circumstantial evidence such as a
defendant’s acts and words and the extent of the victim’s injuries.” Gonzalez v. State,
No. AP-77,066, 2020 WL 6482409, at *22 (Tex. Crim. App. Nov. 4, 2020) (citations
omitted). The Court of Criminal Appeals has explained that murder is a “result-of-
conduct” offense, and the crime is defined by “one’s objective to produce, or a
substantial certainty of producing a specified result,” i.e. death. Louis v. State, 393
S.W.3d 246, 251 (Tex. Crim. App. 2012) (quoting Roberts v. State, 273 S.W.3d 322,
329 (Tex. Crim. App. 2008), abrogated in part on other grounds by Ex parte Norris,
390 S.W.3d 338, 341 (Tex. Crim. App. 2012). “Mental culpability is a question of
fact to be determined by the jury from all the facts and circumstances in evidence.”
Walter v. State, 581 S.W.3d 957, 973 (Tex. App.—Eastland 2019, pet. ref’d) (citing
Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974)). “Intent is of such
a nature that it is most often proven through circumstantial evidence surrounding the
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crime.” Id. (citing Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991),
overruled on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App.
1992). Under Penal Code section 19.02(b)(2), intent to kill is not required, and the
State meets its burden if the evidence shows that the defendant intended to cause
serious bodily injury or commit a dangerous act. Ramirez v. State, 229 S.W.3d 725,
729 (Tex. App.—San Antonio 2007, no pet.) (citations omitted).
Viewed in the light most favorable to the verdict, the evidence supports the
jury’s conclusion that Roy intended to cause serious bodily injury and committed an
act clearly dangerous to T.B.’s life, which caused A.B.’s death. While Roy testified
he could not remember much after he smoked a cigarette dipped in PCP, and that he
was not trying to kill T.B., the jury could have reasonably decided not to have to
believe him. See Gilbert v. State, 575 S.W.3d 848, 859–60 (Tex. App.—Texarkana
2019, pet. ref’d) (citations omitted) (“The jury is also the sole judge of the credibility
of the witnesses and the weight to be given their testimony and may ‘believe all of a
witness[’] testimony, portions of it, or none of it.’”). The jury was free to believe
T.B.’s testimony that Roy became irrational after smoking a cigarette dipped in PCP,
said he wanted to kill T.B., and that he began driving in a way clearly dangerous to
human life. See id. at 860 (noting that we give almost complete deference to the
jury’s determination of credibility). The jury also heard testimony from several
eyewitnesses who testified they heard Roy’s sedan accelerating before flying over
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the railroad track, he never applied apply his brakes, and he did not slow down. See
Owens v. State, 549 S.W.3d 735, 742 (Tex. App.—Austin 2017, pet. ref’d)
(affirming the jury’s finding that the appellant intentionally committed murder
because the appellant actions such as driving his car into a group of people, never
applying his brakes, and “increasing his speed as he drove” were reasonably certain
to cause death).
From this evidence, as well as Roy’s own testimony acknowledging that he
was aware that smoking PCP typically caused him to lose consciousness, the jury
could have rationally found Roy intended to cause another a serious bodily injury
and that his conduct was clearly dangerous to human life. See Tex. Penal Code Ann.
§ 19.02(b)(2); see also Alami v. State, 333 S.W.3d 881, 888 (Tex. App.—Fort Worth
2011, no pet.) (explaining that a rational jury could find that the appellant committed
an act dangerous to human life when he drove at an excessive speed and collided
with another car, ultimately causing the death of his passenger).
Conclusion
Based on the standard of beyond reasonable doubt, we conclude the jury, from
the evidence admitted in Roy’s trial, could rationally find Roy guilty of murder. See
Jackson, 443 U.S. at 319. Having considered Roy’s arguments, we overrule his first
issue, in which he argues the evidence is insufficient to support the verdict. Given
our resolution of Roy’s first issue, we need not address his other issue, in which he
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argues the evidence supports only a finding of manslaughter. See Tex. R. App. P.
47.1.
While we affirm Roy’s conviction, we note neither Roy’s indictment nor the
judgment recite the correct section number of the Penal Code that is relevant to
Roy’s conviction for murder. Neither party brought this error to the Court’s
attention.
Roy’s indictment identifies Roy and his crime, and the indictment tracks the
statutory language. Thus, Roy was on notice of the crime the State charged him with
having committed. See id. For that reason, the fact the judgment does not recite the
correct version of the Penal Code is a clerical error that we may correct so the
judgment reflects the Penal Code provision that the jury found Roy violated. See
Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)
(stating this Court has the authority to reform the trial court’s judgment to correct
clerical errors). We modify the judgment in Roy’s case by striking the section
“19.02” and inserting “19.02(b)(2)” in its stead. As modified, the trial court’s
judgment is affirmed.
AFFIRMED AS MODIFIED.
_______________________________
CHARLES KREGER
Justice
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Submitted on April 30, 2020
Opinion Delivered December 16, 2020
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
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