## IN THE COURT OF CRIMINAL A PPE ALS OF TEXAS

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C H A R L E S S T O B A U G H , A p p e l l a n t

v . T H E S T A T E O F T E X A S
D I S S E N T T O R E F U S A L O F D I S C R E T I O N A R Y R E V I E W F R O M T H E S E C O N D C O U R T O F A P P E A L S

D E N T O N C O U N T Y
K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n i n w h i c h M E Y E R S a n d K E A S L E R , J J . , j o i n e d . Appellant was convicted of murdering his e strang ed wife

. The court of appea ls c oncluded that the State’s ca se wa s “insufficie nt to establish the mens rea element of murder.” Be cause the 1
court of appea ls did not ha ve the benef

it of our opinion in Thornton v. State , I would rema nd this 2

case to that court for

further proce eding s in light of Thornton

.

Stobaugh v. State , 421 S.W .3d 787, 869 (Tex. App.–For t Worth 2014). 1 Thornton v. State , 425 S.W .3d 289 (Tex. Crim. App. 2014). 2STO BAUG H DISS ENT— 2

The court of appeal s conclude d that the evidenc e was insufficient to show that appellant possessed either

of the c ulpable mental state s require d for murder, as opposed to a lesse r culpa ble mental state that would e stablish a lesser- included off ense: [T] he circ umstantial evidenc e, even if it supports an infere nce that Charles did something to Kathy and that Kathy died as a resu l t of that something, nonetheless wholly fails to provide the j u ry wi th any fac ts from which the jury could also rea sonably infer that the mens rea Charles possessed when he did that something to Kathy was the mens rea for murder, as opposed to some other mens rea , such as the mens rea for mansla

ug hter. 3 I n Bowen v. State , we held that, even wh en a lesser- included offe nse has not been reque sted or submitt ed, ref

ormation to a lesser- included offe n s e, rathe r than acquittal, may be the appropr iate

reme dy when the evidenc e is insufficient t o est ablish an element of the char g ed offe nse but is sufficie nt to estab lish ever y element of a lesser- included offe nse. I n Thornton , we clar ified that, 4 when the lesser- included offe nse is one that the jury nece ssarily found, and the evidenc e is sufficie nt to support the lesser- included offe nse, ref ormation is not optional: The appellate court is “re quired

. . . to avoid the ‘unjust’ result of an outrig ht acqu i t t al b y re fo rming the judgme nt to ref lect a conviction for the lesser inc luded offe nse.” 5 I n this case , the court of appea ls expressly held only that the State failed to prove the culpable mental states assoc iated with the cha rg ed off ense of murder, i.e ., intent or knowledg e. De spite its mention of manslaug hter as a lesser- included offe nse that the evidenc e might support, the appellate 6

Id. at 868. 3 Bowen v. State , 374 S.W .3d 427 (Tex. Crim. App. 2012). S ee also Britain v. Stat e , 412 4 S.W .3d 518 (Tex. Crim. App. 2013). Thornton , 425 S.W .3d at 300. 5 See this opini on at n.3 and a ssociated text. 6STO BAUG H DISS ENT— 3

court did not decide whether the evidenc e was sufficie nt to prove a lesser cu l pable mental state—such as rec klessness or criminal neg lige nce—tha t would establish a less er- included offe nse—such as manslaug hter or criminally ne g li g e n t h o mic ide. Thornton had not y et been decide d
at the time o f t h e court of appea ls opinion, so the court did not have the benef it of Thornton ’s holding that ref

ormation is require d when the evidenc e is sufficie nt to establish a nece ssarily found lesser- included off

ense. Although the court of appea ls did not issue a holding on the matter, some parts of its opinion sug g est that the evidenc e might not be sufficie nt to prove a culpable mental state associate d with any criminal offe nse. I n a g iven case , a defic iency of proof may apply not only to the culpable mental 7
state for t h e ch ar ged o ffe nse but also to culpable mental states associate d with potential lesserincluded offe nses. I f the evidenc e is insufficient to prove the culpable m en t al s t ate for even the 8 lesser- included offenses, then an acquittal is appropr iate. But the c ourt of appe als did not decide 9 that the evidenc e was ins u ff i ci en t in this reg ard, and there is evidenc e outlined in the court’s extensive opinion t hat may sug g est that the def endant wa s in some way

criminally

responsible for the victim’s death. Even if the court of appea ls was corr ect in its sufficie ncy holding with respe ct to the char g ed offe nse, it should decide whether ref ormation to a

lesser- included offe nse is a ppropriate

. I would

Stobaugh , 421 S.W .3d at 866 (sug g esting that cer tain evidenc e did not cre ate an infere nce 7 “that a murder or any wrong ful conduct has occur red” ), 869 (distinguishing prior case on the basis that “unlike her e, ther e wa s evidenc e of w rong ful conduc t”). Britain , 412 S.W .3d at 521-23. 8 Id. 9STO BAUG H DISS ENT— 4

g rant revie w on our own motion, vaca te the court of appea ls’s decision, and rema nd the case to that 1 0 court to dec ide that question. I respe ctfully

dissent. Filed: F ebrua

ry 4, 2015 Publis h

See T E X . R. A P P . P. 67.1.

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