Texas Stamp


PD-0759-21 12/08/2021

1. “Is the fact of a witness’s inconsistency coupled with the jury’s prerogative to disbelieve part of his testimony affirmative evidence that supports submission of a lesser-included offense?”

2.  “While evidence can be ‘weak, impeached, or contradicted’ and still raise a lesser-included offense, shouldn’t inferences be required to be supported by facts before they can?”

Appellant was charged as a party with the capital murder of two high school students, for killing two people in the same transaction and killing each teen in the course of kidnapping him. The teens were last seen at Appellant’s home visiting Brandon Flores. Blood from one of the victims was found at Appellant’s remote family ranch, and, on the night the students went missing, Appellant, Flores, and two friends were captured on surveillance video between Appellant’s house in town and the remote ranch.

Flores testified at trial and admitted being the shooter. He described how he, Appellant, and their two friends kidnapped the victims and took them to Appellant’s family ranch. He testified that, all four men agreed to kill the victims once they were at the ranch, out of concern about the teens’ gang connections. Flores said that, while all agreed on the kidnapping, there had been no plan back at the house to kill the teens. Flores was somewhat inconsistent about who originated the idea of killing them. He told police the idea was another accomplice’s. He testified that Appellant told him where on the property to kill the teens. Flores followed Appellant’s instructions and thus was alone with the teens when they were killed. The defense disclaimed that Appellant had any connection to the crime. Despite this, it asked that kidnapping and felony murder be submitted as lesser-included offenses in the jury charge. This was denied, and Appellant was convicted.

On appeal, Appellant argued that the inconsistencies in Flores’s testimony warranted submission of the lessers. A majority of the court of appeals panel agreed. It held that there was some evidence that Appellant lacked the intent to kill the victims. It cited the jury’s ability to disbelieve Flores and recounted several aspects of his testimony, including that murder was not the initial plan, Flores alone drove the victims to the back of the property and killed them, and Flores was inconsistent about who formulated the idea to kill the teens and had told the police it was someone other than Appellant. The dissent argued the majority was wrong to focus on what the jury could disbelieve and that the evidence did not negate Appellant’s intent to kill.

The State argues that neither disbelief of Flores’s testimony that Appellant was involved in the plan to kill the teens nor the fact that Flores was inconsistent is enough to raise a lesser-included offense. The State also contends that, in the context of the rest of the evidence, the jury could not rationally infer Appellant’s lack of intent to kill from his absence during the shooting itself. It argues it doesn’t make sense with the rest of the affirmative evidence and would require conjuring other facts to fill logical holes in the narrative.

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