PD-1515-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/29/2014 3:33:49 PM Accepted 12/30/2014 10:41:24 AM ABEL ACOSTA Cause No. PD-1515-14 CLERK

In the Court of Criminal Appeals of Texas

Benjamin Jerome Prince, Petitioner December 30, 2014 v.

The State of Texas, Respondent

On Review from Cause No. 08-12-00290-CR in the Eighth Court of Appeals El Paso, Texas (on Transfer from Fort Worth)

State’s Response to Appellant’s Petition for Discretionary Review

Maureen Shelton Wichita County Criminal District Attorney

Carey Jensen Asst. Criminal District Attorney Wichita County, Texas State Bar No. 24083252 [email protected] 900 Seventh Street Wichita Falls, Texas 76301 (940) 766-8113 phone (940) 716-8530 fax

Attorney for Respondent State of Texas

Oral Argument Not Requested To the Court of Criminal Appeals:

Pursuant to Rule 68.9 of the Rules of Appellate Procedure, the State

submits its reply to Appellant’s petition for discretionary review. The State

makes this reply in order to briefly address argument set forth by Appellant

in his petition.

Statement Regarding Oral Argument

Because the record and briefing clearly reflects that there was no

evidence to support any lesser-included jury instructions, the State feels

oral argument is unnecessary.

Argument

The State respectfully requests this Court deny Appellant’s petition

because Appellant failed to show a scintilla of evidence to support a jury

instruction on any lesser-included offenses, as the Eighth Court of Appeals

rightfully concluded.

The Facts

Appellant brutally beat his child victim with a gun that he had just

used to shoot another person.1 When the gun slipped out of his hand and

1 Prince v. State, No. 08-12-00290-CR, slip op. at 3, (Tex. App.—El Paso Oct. 17, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaID=18ad75ce-cae9-44cc- 8881-3902b8bdf562 2 was lost, he continued to beat this child with a hammer until the child was

dead.2

Applicable Law

The State agrees with Appellant that – as indicted – murder is a

lesser-included offense of capital murder, and felony murder is a lesser

included offense of murder. Anything more than a scintilla of evidence may

entitle a defendant to a charge on a lesser offense.3

No evidence of a lesser-included offense

As the El Paso Court of Appeals correctly analyzed, there was no

evidence to support a jury instruction on either of the lesser-included

offenses.

The autopsy revealed that the cause of death was a homicide, based

on the severity of quantity of injuries, and “massive blunt force trauma to

the head.”4 Not only did the child have injuries consistent with being hit

with a gun and a hammer, but injuries consistent with someone standing on

his neck.5

There is absolutely no evidence that Appellant did not know that

standing on a child’s neck, beating the child in the head with a gun, and

2 Id. 3 Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) 4 Prince, slip op. at 6. 5 Id. 3 then beating the child in the head with a hammer would cause death.

There was no evidence presented that Appellant only intended to wound

the child with this behavior. The inference that a use of a deadly weapon in

a deadly manner can cause death is almost conclusive.6

When briefing the “scintilla” prong of the test, Appellant merely states

that the “totality of the evidence presented at trial legitimately present more

than a scintilla of evidence” to support the lesser-included instructions.7

Appellant only points to the testimony that he acting in a “dissociative”

state, and that the rage directed at the child was meant for the child’s

mother. However, a dissociative state does not render Appellant ignorant

of the fact that beating a child repeatedly over the head with multiple hard

objects would probably cause death.

Because there was no evidence that if Appellant was guilty, he was

guilty of a lesser -included offense, the trial court did not err in denying the

jury instruction, and the court of appeals did not err in overruling Appellant’s

issue on appeal.

6 Adams v. State, 886 S.W.2d 210, 215 (Tex. Crim. App. 1993). 7 Appellant’s Brief at 15. 4 Prayer

The State prays that the Court deny Appellant’s petition for

discretionary review.

Respectfully submitted,

Maureen Shelton Criminal District Attorney Wichita County, Texas

/s/Carey Jensen Carey Jensen Asst. Criminal District Attorney Wichita County, Texas State Bar No. 24083252 [email protected]

900 Seventh Street Wichita Falls, Texas 76301 (940) 766-8113 phone (940) 766-8177 fax

Certificate of Compliance

I certify that this document contains 557 words. The body text is in

14 point font, and the footnote text is in 12 point font.

/s/Carey Jensen

5 Certificate of Service

I certify that on December 29, 2014, a true and correct copy of the

above document has been forwarded James Rasmussen and Julia Bella

via electronic service to [email protected] and

[email protected] as well as the State Prosecuting Attorney, Lisa

C. McMinn, via electronic service to [email protected].

/s/Carey Jensen

6