Opinion issued October 15 , 2015

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 14
- 00536
- CR

——————————— DENNIS ROY REDDING , Appella nt V. THE STATE OF TEXAS , Appell e e
On Appeal from the 212th District Court Galveston County, Texas Trial Court Ca se No. 12
- CR
- 2363

MEMORANDUM OPINION Appellant Dennis Roy Redding was indicted for the first degree felony offense of murder and was convicted of the lesser included offense of manslaughter. Redding raises three issues on appeal. Fi rst, he contends that the trial court erred by submitting a voluntary intoxication instruction pursuant to2 Penal Code section 8.04(a) because he did not rely on voluntary intoxication as a defense. Second, he contends that the trial court erred by failing to include Redding’s proposed application paragraph. Finally, Redding asserts that the trial court erred in overruling his objections to the State’s comments during closing argument in which the prosecutor allegedly told the jury that to be convicted of murder, Redding merely had to intend to engage in conduct rather than intend a result. Finding no error, we affirm. Background Redding and Mark Holcomb, the complainant, were longtime friends who met when their daughters were in elementary school, then became closer when Redding’s wife, Joan, went to work for Holcomb. On June 22, 2012, Redding and his son

- in

- law, Darren Schieffer, joined Holcomb and his wife Francine at the Holcombs’ waterfront home for the weekend. The Holcombs’ daughter Ashley, Ashle y’s husband Jonathan (John) Contois, and John’s brother Dan Contois were also there. Holcomb and Redding began drinking sometime before 5:00 p

. m. They continued to drink outside while dinner was being prepared. The group, except Redding, ate dinner aro und 8:00 p.m. After dinner, everyone gathered outside and continued socializing and drinking. Holcomb and Redding remained as the rest of the group gradually dispersed to go to bed.3 Around 9:30 p.m., neighbors Gert Rhodes, David Baggs, and Jeff Dolen j oined Holcomb and Redding, and Francine came back downstairs. The group continued to drink and socialize until sometime after midnight. Then, with the help of Rhodes and Baggs, Holcomb assisted Redding upstairs to bed. Once upstairs, Holcomb stood in the doorway as Redding entered the bedroom where Darren was already sleeping. Redding stumbled, falling into the wall. He then pulled his bag out and began to rummage through it. Holcomb turned on the light and asked Redding what he was looking for. D arren awakened and sat up, and Redding yelled at Holcomb to “turn the fucking light off.” Redding then walked toward the doorway pointing his handgun at Holcomb while saying, “you mother fuckers are treating me like a baby.” As Redding approached Holcomb , Redding fired the gun. Holcomb grabbed his stomach and fell to the floor saying, “Dennis you shot me.” Darren ran to where John had been sleeping on the couch and told him that Redding shot Holcomb. John ran into the bedroom to subdue Redding while
Da rren called 911. Family members and guests then converged on the scene, and Holcomb was holding his side and saying, “Call 911, he shot me”; “it was an accident”; and “he didn’t mean to do it.” Darren and John restrained Redding and found the gun in Redd ing’s left pocket. They overheard Redding saying, “Let me up. It was an accident, let me up.” While awaiting EMS, Holcomb again told4 Francine “it was an accident.” Both the EMS and police arrived and Holcomb was taken by life flight to the UTMB. Holco mb underwent surgery , but died from blood loss early that morning. At trial, Darren testified that Redding told him that he never meant to kill Holcomb, but that he was just trying to scare Holcomb by shining the gun’s laser on him. Redding believed the laser was trigger

- activated, but, in fact, the gun had a button on the grip to activate the laser. Darren testified he is familiar with guns and does not know of any gun that has a trigger

- activated laser. Trial testimony also revealed that Redding was familiar with firearms. Redding was a former Houston police officer and was previously the head of security at NASA. Reddin g also hunted regularly, was a c oncealed h andgun
l icense holder, practiced shooting at a gun range, and typically carried a gu n with him. The jury charge during the guilt

- innocence phase of trial included instructions on murder and two lesser included offenses: manslaughter and deadly conduct. Over Redding’s objection, the trial court submitted the following instruction on volun tary intoxication, which tracked Texas Penal Code § 8.04(a) and (d): Voluntary intoxication does not constitute a defense to the commission of a crime.5 Intoxication means disturbance of mental or physical capacity resulting from the introduction of any substance into the body. The trial court also refused Redding’s proposed application paragraph which he contended was needed to inform the jury that a finding of voluntary intoxication by the defendant does not negate the State’s burden to prove all eleme nts of the offense. The jury convicted Redding of the lesser included offense of manslaughter, found the deadly weapon special instruction true, and sentenced Redding to seven years’ confinement in the Institutional Division of the Texas Department of Crim inal Justice. Jury Charge Redding argues that the trial court’s charge contained two errors. In his first issue, he argues that the trial court erroneously instructed the jury on voluntary intoxication. In his second issue, he argues that the trial cou rt erred in failing to include an application paragraph with the voluntary intoxication instruction. He asserts that he preserved these errors, and they caused some harm, warranting reversal. A. Standard of Review In analyzing a jury

- charge issue, our firs t duty is to decide if error exists. See Almanza v. State , 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g); Tottenham v. State , 285 S.W.3d 19, 30 (Tex. App.

— Houston [1st Dist.] 2009, pet.6 ref’d). Only if we find error do we then consider whethe r an objection to the charge was made and analyze for harm. Tottenham , 285 S.W.3d at 30; see also
Warner v. State , 245 S.W.3d 4 5 8 , 461 (Tex. Crim. App. 2008) (“The failure to preserve jury

- charge error is not a bar to appellate review, but rather it estab lishes the degree of harm necessary for reversal.”). “The degree of harm necessary for reversal depends upon whether the error was preserved.” Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Error properly preserved by a timely objection to t he charge will require reversal “as long as the error is not harmless.” Almanza , 686 S.W.2d at 171. The Court of Criminal Appeals has interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal. A rline v. State , 721 S .W.2d 348, 351 (Tex. Crim. App. 1986). However, when the charging error is not preserved “and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not h ad a fair and impartial trial’

— in short ‘egregious harm.’” Almanza , 686 S.W.2d at 171.
B. Applicable Law An instruction on voluntary intoxication informs the jury that the elements of the offense

— including the requisite mental state

— are not affected or altered by evidence of intoxication. Sakil v. State , 287 S.W.3d 23, 28 (Tex. Crim. App

. 2009). The Court of Criminal Appeals has held that a voluntary intoxication7 instruction is appropriate if evidence from any source might lead a jury to conclude that the def endant’s intoxicati on somehow excused his actions. Taylor v. State , 885 S.W.2d 154, 158 (Tex. Crim. App. 1994)

. The Court has expressly rejected the argument that such an instruction relieves the State of its burden of proving intent, Sakil , 287 S.W.3d a t 28, noting that, if anything, the instruction acts to reaffirm the mental state requirements, not delete them. Id. C. Analysis 1. V oluntary i ntoxication i nstruction In his first point of error, Redding asserts that the trial court erred by instructing the jur y on voluntary intoxication at the State’s request. Specifically, Redding maintains that the instruction was not warranted because there was neither evidence nor argument that his intoxication was not voluntary or that it caused or excused his conduct.
Un der Almanza , our first duty is to determine whether there was error in the charge. We conclude that there was not. In Taylor , the Court stated that a section 8.04(a) instruction is appropriate if evidence from any source might lead a jury to conclude tha t the defendant’s intoxication somehow excused his actions. Taylor , 885 S.W.2d at 158; see also Fisher v. State , 397 S.W.3d 740 , 746

– 47 (Tex. App.

— Houston [14th Dist.] 2013, pet. ref’d) (voluntary intoxication instruction appropriate where equivocal testi mony might have led jury to conclude that8 voluntary intoxication excused appellant’s actions). The instruction may be appropriate even if the defense does not argue that intoxication somehow excused an accused’s conduct and even if evidence of intoxicatio n is itself equivocal. Sakil , 287 S.W.3d at 27

– 28

. In Sakil , the defendant elicited testimony from his own witness regarding defendant’s history of drug abuse, and that history was suggested to have some link to the appellant’s symptoms on the date of the offense. Id. at 27. Despite the complainant telling emergency dispatchers the defendant was not intoxicated at the time of the offense, the trial court concluded that testimony on defendant’s history of drug use alone increased the possibility the ju ry would infer a cause

- and

- effect relationship between defendant’s history of drug use and the offense conduct. Id. The Court of Criminal Appeals explained that although the evidence did not establish that the appellant was intoxicated at the time of the offense, there was some evidence from which a juror could conclude that voluntary intoxication excused appellant’s actions. Id. Thus, a voluntary intoxication instruction was appropriate as it “properly utilized the charge’s function to actively prevent confusion.” Id. at 28. This case is similar. Here, there was considerable evidence of Redding’s intoxication. Francine testified that Redding and Holcomb had a longstanding history of drinking heavily together while on vacation. John described Reddin g as9 “pretty drunk” at dinnertime, around 8:00 p

. m . , and Francine testified that Redding continued to drink down stairs for a few hours and was very intoxicated. Darren recalled that appellant was “drunk ... stumbling everywhere” when appellant came upstairs right before the shooting. The uncontroverted testimony provided evidence from which a juror could conclude that intoxication excused Redding’s actions. Accordingly, the trial court did not err in including a voluntary intoxication instruction. Taylor , 885 S.W.2d at 158 (voluntary intoxication instruction appropriate where evide nce from any source might lead jury to conclude that defendant’s intoxication somehow excused his actions even if defendant has not explicitly argued intoxication as a defense); Sakil , 287 S.W.3d at
26

– 28 (voluntary intoxication instruction appropriate even if evidence of intoxication is equivocal in order to actively prevent confusion). We overrule appellant’s first issue. 2. Omission of application paragraph In his second point of error, Redding contends that the trial court erred in refusing an application paragraph regarding voluntary intoxication. Specifically, Redding argues that the voluntary intoxication instruction could have misled the jury into thinking that Redding was s trictly liable if the jury found voluntary intoxication. Redding asked the trial court to include the following application paragraph:10 Evidence of the defendant’s intoxication, if any, does not negate the elements of intent or knowledge or reckless ly or the State’s burden to prove th e defendant’s intent, knowledge or recklessness as those terms has [sic] been defined beyond a reasonable doubt. We conclude that the trial court did not err in refusing to submit the proposed application paragraph. We read Sakil and other authorities to mean that a trial court does not err in failing to submit an application paragraph with a voluntary intoxication instruction. See, e.g. , Taylor , 885 S.W.2d at 158 (abstract voluntary intoxication instruction without a relat ed application instruction not noted as error where charge indicated burden of production remained with the State); Sakil , 287 S.W.3d at 28 (concluding that abstract v oluntary intoxication instruction “operates to inform the jury that the elements of the o ffense, including the requisite mental state, are not affected by any evidence of intoxication” (citing Hawkins v. State , 605 S.W.2d 586, 589 (Tex. Crim. App. 1980) ) ) ; Hughes v. State , No. 01

- 11

- 00282

- CR, 2012 WL 2923180 , *4 (Tex. App.

— Houston [1st Dist.] July 12, 2012 , pet. ref’d ) (mem. op., not designated for publication) (abstract voluntary intoxication instruction without a related application instruction operated to prevent juror confusion and was not noted as error). “If anything, a voluntary

intoxic ation instruction acts to reaffirm the mental

- state requirements, not delete them. . . . [T]he instruction operates to inform the jury that the elements of the offense, including the requisite mental state, are not affected by any evidence of11 intoxication. ” Sakil , 287 S.W.3d at 28 (citing Hawkins , 605 S.W.2d at 589 ) ; see also Raby v. State , 970 S.W.2d 1, 5 (Tex. Crim. App. 1998) (concluding that a

s ection 8.04 (a) instruction suffers no constitutional infirmity and does not improperly benefit the State by sh ifting the burden on the requisite element of criminal intent). Here, the charge instructed the jury that the State maintained its burden of proving the required mental state beyond a reasonable doubt. The general instructions stated: “[a]ll persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.” The next paragraph reinforced the idea that the State bore the burden of production on each and every element: “ [t]he prosecution has the burden of proving the Defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the Defendant.” Thus, the charge included the s ubstance of the proposed application paragraph that Redding argues should have been submitted, albeit not immediately after the voluntary intoxication instruction as Redding wished. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal
Patt ern Jury Charges: Defenses § B6.3 (2013) (suggesting voluntary intoxication
i nstruction tracking Penal Code section 8.04(a) be accompanied by an instruction12 that “you are reminded that the state must prove all elements of the offense beyond a reasonable do ubt.”). We conclude that the charge adequately informed the jury that the State retained the burden to prove all elements beyond a reasonable doubt. Accordingly, the trial court did not abuse its discretion in refusing Redding’s proposed application para graph. We overrule appellant’s second issue. Closing Arguments In his third issue, Redding argues that the trial court erred in overruling his objections to the State’s closing arguments, which he maintains incorrectly led the jury to believe that murder was a nature of conduct rather than result of conduct offense. A. Standard of Review A trial court’s ruling on an objection to improper jury argument is reviewed for abuse of discretion. Rodriguez v. State , 446 S.W.3d 520, 536 (Tex. App.

— San Antonio 2014, n o pet.). Prosecutorial misstatements of law are improper, but they

a re not constitutional in nature, and are governed by the harm analysis set out in Texas Rule of Appellate Procedure 44.2(b). Mos l e y v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Nonconstitutional errors are disregarded unless appellant’s substantial rights are affected. Herrera v. State , 11 S.W.3d 412, 41513 (Tex. App.

— Houston [1st Dist.] 2000, pet. ref’d) . A substantial right is affected when error has a substantial and injuriou s effect or influence on the jury’s verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). To determine whether the prosecutor’s misstatement of the law in closing argument to the jury had a substantial and injurious effect, a reviewing court must look at all the evidence and the court’s charge. Herrera , 11 S.W.3d at 415. The court does not consider only isolated statements when reviewing for error. Rodriguez v. State , 90 S.W.3d 340, 364 (Tex. App.

— El Paso 2001, pet. ref’d).
B. Applicable Law To be permissible, the State’s jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argum ent of opposing counsel; or (4) plea for law enforcement. Davis v. State , 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). When an argument exceeds the permissible bounds, it does not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statue, or injects new facts harmful to the accused into the trial proceeding. Todd v. State , 598 S.W.2d 286, 296

– 97 (Tex. Crim. App. [Panel Op.] 1980) (first citing Kerns v. State , 550 S.W.2d 91 (Tex. Crim. App. 1977); then citing Thompson v. S tate , 480 S.W.2d 624 (Tex. Crim. App. 1972))

.14 C. Analysis Redding contends that portions of the State’s closing argument misstated the law by improperly directing the jury to focus on Redding’s “acts” on the night of the shooting. In particular, during closi ng argument, the prosecutor told the jury: The issue for you, ladies and gentlemen, is has the State proven murder? Has the State proved intentionally or knowingly acts? What I want you to focus on are the acts. Redding objected, “That’s a misstatement of the law. It’ s intentionally or know ingly cause the result, not that he engaged in conduct.” The trial court overruled Redding’s objection. The prosecutor continued, later arguing: When you focus on the actions of the defendant in this case from walk ing up to that bedroom, rummaging around in the bag, taking the gun out of the holster, his gun, the gun he’s familiar with, the retired police officer with the CHL, his gun and he pulls the trigger after taking several steps forward, those are all, ladies and gentlemen, intentional, knowing, those are purposeful actions. Redding objected: Your Honor, I object. The jury charge says the conduct that caused the result, not that he engaged in conduct. That’s not part of the intentional and knowing. It’s a misstatement of the law that applies to this case by saying if you find he engaged in conduct. That’s not the law. The trial court again overruled the objection. Even assuming the arguments complained of were improper and that the trial court erred in overruling the objections , we find no substantial or injurious effect15 or influence. T EX
. R. A PP
. P. 44.2(b). Determining harm under the standard for nonconstitutional error in improper argument cases require s balancing the following three factor s : (1) s everity of the misconduct (prejudicial effect); (2) curative measures (the efficacy of any cautionary instruction by the judge); and (3) the certainty of the conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley , 983 S.W.2d at 259 (first citing United States v. Millar , 79 F.3d 338, 343 (2nd Cir. 1996); then citing United States v. Palmer , 37 F.3d 1080, 1085 (5th Cir. 1994))

. First, considering the severity of the misconduct, we conclude that the
State’s commen ts were not manifestly improper. Consideration of the State’s entire closing argument shows that the State was properly asking the jury to evaluate Redding’s intent by focusing on his actions that night. Notwithstanding the fact that murder is a result o f conduct offense, a fact finder may infer that a particular result was intended based on a defendant’s acts. See Brown v. State , 122 S.W.3d 794, 800 (Tex. Crim. App. 2003) (explaining that while intent to kill cannot be inferred as a matter of law, a jur y may infer intent based on any facts in evidence which it determines prove the existence of an intent to kill); Ex parte
Weinstein , 421 S.W.3d 656, 668 (Tex. Crim. App. 2014) (explaining that intent to commit murder may be inferred from circumstantial evi dence, including the accused’s acts and words); Holiday v. State , 14 S.W.3d 784, 789

– 90 (Tex. App.

—16 Houston [1st Dist.] 2000, pet. ref’d ) (factfinder may infer intent to kill from the use of a deadly weapon). The arguments did not invite speculation, Thomp son v. State , 89 S.W.3d 843, 850

– 51 (Tex. App.

— Houston [1st Dist.] 2002, pet. ref’d ) (argument inviting speculation clearly improper and amounted to constitutional error), did not inject new facts into the record, Everett v. State , 707 S.W.2d 638, 641 (Tex . Crim. App. 1986) (prosecutor may not use closing argument to place matters outside the record before the jury), and did not cast aspersion on defense counsel’s veracity, Cole v. State , 194 S.W.3d 538, 544 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref’d) (comments impugning defense counsel ’s veracity in closing arguments may constitute reversible error). Instead, the arguments complained of permissibly encouraged reasonable deductions from the evidence. Additionally,

t he jury concluded that Redding did n ot intentionally or knowingly cause Holcomb’s death. Instead, the jury found Redding guilty of the lesser

- included offense of manslaughter, requiring only recklessness. In light of the verdict, we conclude that any misstatement in closing arguments did n ot improperly cause the jury to infer an intent to kill. Second, the trial court gave no oral curative instruction, but the charge correctly stated the law regarding the mens rea applicable to each offense submitted. Third, absent jury nullification, co nviction on the manslaughter charge was almost certain, because the uncontroverted evidence showed that Redding17 pointed a firearm at Holcomb and the charge instructed the jury to presume recklessness if Redding knowingly did so. Additionally, a seven year sentence is at the lower end of the range of punishment the jury considered. In short, although there was no curative instruction, the benign nature of the objected to statements, together with the strength of the State’s manslaughter case, lead us to co nclude that any error in overruling Redding’s objections to the State’s closing argument does not warrant reversal

. Mosley , 983 S.W.2d at 259

– 60 ; see also Schultze v. State , 177 S.W.3d 26, 44

– 50 (Tex. App.

— Houston [1st Dist.] 2005, pet. ref’d) (though
pro secutor’s argument improperly invoked matters outside record and no curative measures were taken, there was no harm given relatively minimal degree of misconduct and certainty of conviction). We overrule appellant’s third issue. Conclusion We affirm the t rial court’s judgment.

Rebeca Huddle Justice Panel consists of Chief Justice Radack, Justice Bland, and Justice Huddle. Do not publish. T EX
. R. A PP
. P . 47.2(b).