Brian Marshall v. the State of Texas

Affirmed and Memorandum Opinion filed October 22, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00544-CR

BRIAN MARSHALL, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1706045

MEMORANDUM OPINION

The sole question in this case is whether the evidence is legally sufficient to
support a conviction for manslaughter. Our answer is “yes.”

BACKGROUND

The complainant died after she was shot in the forehead at close range.
Appellant, her husband, was charged with her murder. He pleaded not guilty to that
charge and his case proceeded to a trial by jury.
The uncontroverted evidence established that the complainant was shot in her
mother’s bedroom, but there were some disputes as to the circumstances leading up
to the shooting.

Roosevelt, who was engaged to marry the complainant’s mother, testified that
he and his fiancée were watching a movie in her bedroom, when the complainant’s
sister, Alona, came in to ask for a lighter. Roosevelt said that appellant followed
Alona into the bedroom, which was unexpected. Appellant had never been in that
bedroom before, and no one had invited him inside. Roosevelt also said that
appellant came in “hugging” the wall. Appellant opened a closet, went inside, and
shut the door behind him.

Roosevelt testified that the complainant then came into the bedroom and
followed appellant into the closet, shutting the door behind her as well. Roosevelt
said that, within a span of time ranging somewhere between “instantaneously” and
ninety seconds, he heard a gunshot. After the gunshot, the complainant came out of
the closet and collapsed next to the bed, bleeding and struggling to breathe.
Appellant did not flee or say anything; he merely acted “stunned” and began to cry.

Roosevelt testified that, because the closet door was closed, he could not see
what had happened inside. But he testified that he never heard any arguing or
struggle over a gun.

Alona also testified. She said that, on the morning of the incident, she was
using drugs with appellant and the complainant. They all began outside on the patio
smoking K2, a synthetic cannabinoid. Alona also indicated that appellant used a
substance called “wet,” which she described as a type of “embalming fluid” or
dipping solution for cigarettes. Alona said that K2 can make a person fall asleep,
whereas “wet” can make a person hallucinate or “take you places you probably don’t
want to go.”
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At one point, Alona said that she went to speak with her mother, and that
appellant followed her into her mother’s bedroom. Like Roosevelt, Alona testified
that appellant went straight into the closet and closed the door.

Alona testified that she called for the complainant to get her husband, and that
the complainant came to the bedroom less than a minute later. Alona testified that
the complainant went directly toward the closet, but her testimony was inconsistent
as to whether the complainant remained outside the closet or whether she went
inside. Notwithstanding that inconsistency, Alona insisted—contrary to the
testimony from Roosevelt—that the complainant did not close the closet door. She
testified that she saw appellant “instantly” shoot the complainant from inside the
closet.

Though she was in the same room as the shooting, the complainant’s mother
did not testify at all.

The remaining witnesses testified about the investigative process after the
shooting. One officer testified that he arrived on scene and arrested appellant, who
did not fight or resist. A second officer testified that he collected samples from
appellant’s hands, and one of the samples tested positive for having all of the
composition characteristics of gunshot residue. A third officer testified that he
recovered a cigarette stub, which contained the DNA of both appellant and the
complainant. And the medical examiner testified that the complainant died from a
single gunshot to the forehead, and that a toxicology report showed that her system
contained PCP, which is also a hallucinogen.

Appellant did not testify in his own defense, nor did he call any defense
witnesses.

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The trial court submitted a jury charge containing the charged offense of
murder, plus the lesser-included offenses of manslaughter and criminally negligent
homicide. Defense counsel argued in closing statements that the jury could not
convict appellant under any of those three theories. Counsel reasoned that Alona was
not a credible witness because she was high on drugs and her perceptions were
distorted. Counsel acknowledged that Roosevelt was sober, but counsel said that
Roosevelt did not witness the actual shooting because Roosevelt believed that the
shooting happened behind a closed door. Counsel suggested that the prosecution did
not prove its case beyond a reasonable doubt because there was a possibility that the
gun may have discharged accidentally, perhaps during a tussle or fall.

The jury rejected these defensive arguments and found that appellant was
guilty of manslaughter.

ANALYSIS

In a sufficiency challenge, a reviewing court must determine whether a
rational trier of fact could have found the essential elements of an offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
The offense here was manslaughter, which has two essential elements: (1) the
defendant acted recklessly, and (2) his actions caused the death of an individual. See
Tex. Penal Code § 19.04(a). When deciding whether the prosecution satisfied its
burden of proving these two elements beyond a reasonable doubt, we consider all of
the evidence in the light most favorable to the verdict. See Powell v. State, 194
S.W.3d 503, 506 (Tex. Crim. App. 2006).

Appellant does not mount a significant challenge to the second element, which
concerns the actus reus. In his brief, appellant acknowledges that “there appears to
be sufficient evidence that [he] did in fact shoot the Complainant which resulted in
her death.” We agree with that statement. Alona directly testified that she saw
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appellant shoot the complainant, and that testimony must be credited under our
standard of review, notwithstanding any conflict with the testimony from Roosevelt,
because it supports the jury’s ultimate finding. See Edward v. State, 635 S.W.3d 649,
656 (Tex. Crim. App. 2021) (“When faced with conflicts in the evidence, a
reviewing court shall presume that the fact finder resolved those conflicts in favor
of the verdict and defer to that determination.”).

Appellant focuses his appellate challenge on the first element, which concerns
the mens rea of recklessness. Our law defines that mental state as follows:

A person acts recklessly, or is reckless, with respect to circumstances
surrounding his conduct or the result of his conduct when he is aware
of but consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur. The risk must be of such
a nature and degree that its disregard constitutes a gross deviation from
the standard of care that an ordinary person would exercise under all
the circumstances as viewed from the actor’s standpoint.
Tex. Penal Code § 6.03(c).

Appellant asserts that the evidence is insufficient to prove recklessness for
two reasons: first, there was no affirmative evidence that he had any prior knowledge
about firearms, or even that the firearm in this case was loaded; and second, there
was no specific testimony regarding his exact positioning in relationship to the
complainant when the firearm was discharged. Without such evidence, appellant
argues that the jury could only speculate that he was aware of, but consciously
disregarded, a substantial and unjustifiable risk.

We disagree with each of these reasons.

A defendant’s state of mind is a question of fact that must usually be inferred
from the surrounding circumstances. See Nisbett v. State, 552 S.W.3d 244, 267 (Tex.
Crim. App. 2018). If there is evidence beyond a reasonable doubt that a defendant

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pointed a firearm at another person, recklessness can be inferred from that
surrounding circumstance alone. See Guzman v. State, 188 S.W.3d 185, 193 (Tex.
Crim. App. 2006) (explaining that “a reckless state of mind may be inferred or
presumed from the act of pointing a gun at someone”). Affirmative evidence that a
defendant was familiar with firearms or that he knew a particular firearm was loaded
may also support a finding of recklessness, but such evidence is not necessary for a
jury to make an ultimate finding that a defendant created a risk and consciously
disregarded it. Id.1

There was ample evidence in this case that appellant pointed a firearm at the
complainant. Alona testified that she saw appellant shoot the complainant, which
implies that he pointed the gun at the complainant. The medical examiner likewise
testified that there was stippling on the complainant, indicating that she was shot at
close range. Given the obvious dangers of guns, the jury could have reasonably
inferred from all of this evidence that appellant knew that he created a risk and that
he consciously disregarded it when he pointed the gun at the complainant and
discharged it. See Sadler v. State, 728 S.W.2d 829, 832 (Tex. App.—Dallas 1987,
no pet.) (“It is virtual surplusage to point out that firearms are dangerous
instrumentalities, and that their very purpose is to kill or injure should the necessity
arise. It is mandatory that they be handled at all times with great care and the failure

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Appellant suggests that a finding of recklessness cannot be inferred from evidence that
the defendant merely pointed a gun at another. He relies on Gahagan v. State, 242 S.W.3d 80 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) and Thomas v. State, 699 S.W.2d 845 (Tex. Crim.
App. 1985), but neither of those cases supports his proposition. In Gahagan, our sister court
rejected a sufficiency challenge to a conviction for manslaughter based in part on affirmative
testimony from the defendant that she was familiar with guns and knew the risks involved with
handling them. 242 S.W.3d at 88. Our sister court did not hold that such testimony was necessary
to demonstrate recklessness. And in Thomas, there was no sufficiency challenge to the conviction
for manslaughter at all. Instead, the leading issue was whether the evidence raised the lesser-
included offense of criminally negligent homicide.

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to do so may be legitimately viewed by the trier of fact as ‘a gross deviation from
the standard of care than an ordinary person would exercise.’”).

Appellant does not cite to any authority that there must be affirmative
evidence regarding the exact positioning of the defendant in relationship to his
victim, but even if we assumed without deciding that there was such a requirement,
the record contained such evidence. Alona testified that she saw appellant “standing
up” when he shot the complainant. She also said that she saw the complainant “hit
the floor,” from which a jury could rationally infer that she had likewise been
standing before she was shot. And when that testimony is combined with the
testimony from the medical examiner, who said that the complainant must have been
shot at close range, a jury could rationally infer that appellant and the complainant
were both standing near each other at the time that appellant pointed his gun at her.

Having reviewed the record in the light most favorable to the verdict, we
conclude that the evidence was sufficient to support a finding beyond a reasonable
doubt that appellant recklessly caused the death of the complainant. And in light of
this conclusion, we need not consider appellant’s argument that the conviction
should be reformed to the lesser-included offense of criminally negligent homicide.
See Tex. R. App. P. 47.1.

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
Do Not Publish – Tex. R. App. P. 47.2(b).
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