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Date: 05-16-2018

Case Style:

Benjamin Poehlmann v. The State of Texas

Case Number: 04-17-00148-CR

Judge: Marialyn Barnard

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: Alice Morgan

Defendant's Attorney: name

Description: On December 25, 2014, San Antonio police officers responded to a 9-1-1 call, reporting a
shooting in progress at a home where Poehlmann, his girlfriend Roxann Sanchez, and his sister
Christina lived. Poehlmann and Roxann lived in an addition to the house, which was located next
to the kitchen of the main house and could only be accessed from the kitchen. The addition was
comprised of a small living area, bedroom, and bathroom. The living area and bedroom were
separated by a wall and a door, and the bathroom was accessible only by way of the bedroom.
When officers arrived, they entered the main part of the house and found Roxann lying on her
stomach on the floor between the kitchen of the main house and living area of the addition.
Poehlmann, who is a paraplegic, was sitting on the floor with Roxann. His wheelchair was
overturned in his bedroom. Officers described Poehlmann as crying and screaming.
The evidence showed Roxann had been struck by a bullet, which entered her back and
exited her upper chest. A nine-millimeter Glock handgun, along with a spent shell casing, was
found on the floor in the bedroom of the addition. Police also discovered a gunshot hole in the
wall between the living area and bedroom of the addition. Poehlmann was arrested and ultimately charged with felony murder1 and murder.
At trial, the State produced testimony from a number of witnesses, including Christina,
who had called 9-1-1 to report the shooting. Christina testified her brother and Roxann were dating
and living in the addition of the house. Christina stated Roxann had been her brother’s home
health care provider before the couple started dating and cohabitating. Christina testified that when
Poehlmann was 15 years old, he was shot, rendering him a paraplegic. Poehlmann had been riding
in a car with a friend on the way to a concert when someone, who according to Christina “had
some issues with [Poehlmann’s] friend,” opened fire on them as they were driving. As a result of
the shooting, Poehlmann was paralyzed and his friend was killed.
1 It is undisputed that at the time of the shooting, Poehlmann was a felon. Thus, the indictment alleged Poehlmann, having been previously convicted of a felony offense, committed the felony offense of felon in possession of a firearm while in the course of shooting Roxann and causing her death.

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As to the morning of the shooting, Christina testified Roxann was helping her brother take
a shower in preparation for a visit with family members. Christina stated her brother was
“grumpy” that morning, and she heard him “kind of yelling” about needing a clean towel.
Christina testified Roxann was trying to accommodate her brother by getting a clean towel from
Christina’s closet. Christina stated that after about half an hour, she heard a loud noise, “like a
thump or a bang kind of.” She went over to the addition of the house and found Roxann lying on
the floor. Christina described Roxann as lying on her stomach with her face turned toward the
bathroom. Her brother was sitting on the floor, leaning against the doorway of his bedroom in
shock; his wheelchair was overturned in the bedroom. Christina testified she began shaking
Roxann, trying to rouse her. Meanwhile, Poehlmann dragged himself to Roxann and tried to help.
Christina testified that when she tried to turn Roxann over, she saw a hole “where the top of [a
woman’s] bra would be.” She immediately called 9-1-1.
The jury also heard testimony from Officer Crystal Aguero, one of the officers who
responded to the 9-1-1 call. Officer Aguero testified that when she arrived, she and three other
officers entered the main part of the house. She testified she could hear a man screaming or
shouting, and as she made her way through the kitchen of the main house, she saw Roxann lying
on the floor. Poehlmann was lying with Roxann, and he was crying and screaming. Officer
Aguero testified she and other officers pulled Roxann away from Poehlmann. She described
Roxann as having a gray color. Officer Aguero further testified it appeared as if Roxann’s bra and
shirt had been pulled down, and she could see a small bullet hole on her left breast. She
administered CPR until emergency services arrived and took over.
Officer Thaddeus Stout testified that when he arrived at the home, he met Christina, who
was being detained outside of the house. He testified Christina was frantic and panicked, claiming
her brother shot his girlfriend. He testified Christina told him her brother and his girlfriend were

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always fighting and had been arguing that morning. Officer Stout stated that after he spoke to
Christina, he went inside the house. By that time, emergency services had placed Roxann on a
gurney. Officer Stout testified he found Poehlmann lying on the floor in his bedroom, very frantic
and upset.
The jury heard testimony that the gun was discharged from a distance; in other words,
Roxann was not shot at close range. Senior Crime Scene Investigator Robert Ross testified he
investigated the area, concluding the gun was fired from the back of the bedroom and the bullet
traveled in a slightly upward direction and went through the wall between the bedroom and living
room before it hit Roxann. In addition to his testimony, forensic scientist Christina Vachon
testified that after examining swabs of Poehlmann’s hands, she concluded Poehlmann “may have
discharged a firearm, handled a firearm, or was in close proximity to a discharging firearm.”
After the State rested, Poehlmann’s counsel did not call any witnesses. At the charge
conference, Poehlmann’s counsel requested an instruction on the lesser-included offense of
criminally negligent homicide. According to Poehlmann’s attorney, there was no evidence to
prove Poehlmann intentionally shot Roxann, and thus, it could reasonably be inferred that the
shooting was an accident. The trial court denied the requested instruction, and the jury ultimately
found Poehlmann guilty “as charged in the indictment.” The trial court rendered a judgment of
conviction for the offense of murder and sentenced Poehlmann to thirty-five years’ confinement.
This appeal followed.
ANALYSIS As stated in the introduction, Poehlmann raises one issue on appeal, arguing the trial court
erred by refusing to include in the jury charge an instruction on the lesser-included offense of
criminally negligent homicide. According to Poehlmann, there was some evidence in the record
that would have permitted the jury to rationally find him guilty of only criminally negligent

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homicide. To support his assertion, Poehlmann points to evidence he contends shows he did not
know Roxann was in the living area when he discharged the gun from the bedroom; therefore, a
rational jury could have reasonably inferred he failed to perceive the risk created by his conduct.
In response, the State argues the trial court did not err in refusing to include an instruction
on criminally negligent homicide. With respect to felony murder, the State contends criminally
negligent homicide is not a lesser-included offense because it cannot be proved by the same or less
evidence that is required to establish felony murder. As to murder, the State concedes criminally
negligent homicide is a lesser-included offense of murder as charged in the indictment, but there
was no evidence that would have permitted a rational jury to conclude that if Poehlmann was
guilty, he was guilty only of criminally negligent homicide.
Standard of Review and Applicable Law
To determine whether a defendant was entitled to a charge on a lesser-included offense
instruction, we employ a two-prong test. Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App.
2016); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). First, we determine whether
the requested offense is a lesser-included offense of the charged offense. Bullock, 509 S.W.3d at
924; Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). This first step is a question of
law in which we engage in a de novo review and compare the elements alleged in the indictment
with the elements of the potential lesser offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.
Crim. App. 2012); Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Zapata v. State,
449 S.W.3d 220, 224 (Tex. App.—San Antonio 2014, no pet.). “An offense is a lesser-included
offense if, inter alia, ‘it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged.’” Zapata, 449 S.W.3d at 224 (quoting TEX. CODE
CRIM. PROC. ANN. art. 37.09(1) (West 2006)).

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Second, we determine whether there is some evidence that would permit a rational jury to
find that the defendant is guilty of the lesser offense but not guilty of the greater. Hall, 225 S.W.3d
at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). This second step is a
question of fact based on the evidence produced at trial. See Zapata, 449 S.W.3d at 225. The
evidence must show that the lesser-included offense is a valid rational alternative to the charged
offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). Anything more than a
scintilla of evidence may be sufficient to entitle a defendant to a charge on the lesser offense. Hall,
225 S.W.3d at 536. However, “it is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense, but rather, there must be some evidence directly germane to the
lesser-included offense for the finder of fact to consider before an instruction on a lesser-included
offense is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).
Accordingly, in making our determination under the second step of our analysis, we must review
all the evidence presented at trial, and facts must not be isolated and taken out of context. Zapata,
449 S.W.3d at 225. “Meeting this threshold requires more than mere speculation—it requires
affirmative evidence that both raises the lesser-included offense and rebuts or negates an element
of the greater offense.” Cavazos, 382 S.W.3d at 385.
A. Step One In examining the first step of the two-prong test, we look to the definition of criminally
negligent homicide and the charged offenses, comparing the elements of each to determine
whether the offense of criminally negligent homicide can be established by proof of the same or
less than that required to establish the charged offenses. See Cavazos, 382 S.W.3d at 382. Hall,
225 S.W.3d at 535; Zapata, 449 S.W.3d at 224. In this case, Poehlmann was charged with felony
murder and murder.

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Section 19.05 of the Texas Penal Code defines criminally negligent homicide as causing
the death of another by criminal negligence. See TEX. PENAL CODE ANN. § 19.05 (West 2011).
The Texas Penal Code further provides:
A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct, or the result of his conduct, when he ought to be aware of 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 the failure to perceive it 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.

See id. § 6.03(d).
In comparison, a person commits felony murder if he commits or attempts to commit a
felony (other than manslaughter), and in the course of and in furtherance of the felony commits or
attempts to commit an act clearly dangerous to human life that causes the death of an individual.
See id. § 19.02(b)(3). Put simply, felony murder is an unintentional murder committed in the
course of committing a felony. Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004).
The State must prove the elements of the underlying felony, including the culpable mental state
for that felony; however, no culpable mental state is required for the murder committed. Lomax
v. State, 233 S.W.3d 302, 306-07 (Tex. Crim. App. 2007).
Comparing the offenses side by side, this court has recognized “criminally negligent
homicide requires proof of an element that felony murder does not — a specific mental state, i.e.,
criminal negligence — with regard to the death of an individual.” Munoz v. State, 533 S.W.3d
448, 453 (Tex. App.—San Antonio 2011, pet. ref’d); see also Driver v. State, 358 S.W.3d 270,
279 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (holding criminally negligent homicide
cannot be a lesser-included offense of felony murder). Thus, in accordance with our prior decision,

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we hold criminally negligent homicide is not a lesser-included offense of felony murder. See
Munoz, 533 S.W.3d at 453; see also Driver, 358 S.W.3d at 279.
Turning to the charged offense of murder, the Texas Penal Code defines murder as
intentionally or knowingly causing the death of another, or alternatively, intentionally or
knowingly causing serious bodily injury to another by committing an “act clearly dangerous to
human life,” resulting in that person’s death. See TEX. PENAL CODE ANN. § 19.02. In light of this
definition, the State concedes in its brief that “[i]t is well established law that criminally negligent
homicide is a lesser-included offense of murder.” See Saunders v. State, 840 S.W.2d 390, 391
(Tex. Crim. App. 1992) (“Criminally negligent homicide is a lesser-included offense of murder.”);
Jackson v. State, 248 S.W.3d 369, 371 (Tex. App—Houston [1st. Dist.] 2007, pet. ref’d) (same).
Thus, with regard to the offense of murder, we must determine whether there was any evidence
produced at trial from which a rational jury could have found Poehlmann guilty of criminally
negligent homicide as opposed to murder.
B. Step Two Under the second step of the two-prong test, to be entitled to an instruction on criminally
negligent homicide, the record must contain some evidence that Poehlmann should have been
aware of the substantial risk of discharging a gun in the house, but did not perceive that his conduct
would result in Roxann’s death. See TEX. PENAL CODE ANN. § 6.03. The key to criminal
negligence is the failure of the actor to perceive the risk created by his conduct. Jackson, 248
S.W.3d at 371. If the evidence shows the defendant perceived the risk his conduct created, he is
not entitled to a charge of criminally negligent homicide. See id.; Trujillo v. State, 227 S.W.3d
164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
A careful review of the record shows Poehlmann was familiar with the potential for harm
caused by guns, i.e., he perceived the risk of firing a gun. See Thomas v. State, 699 S.W.2d 845,

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849 (Tex. Crim. App. 1985) (“Evidence that a defendant knows a gun is loaded, that he is familiar
with guns and their potential for injury, and that he points a gun at another indicates a person who
is aware of a risk created by that conduct and disregards the risk.”); Whipple v. State, 281 S.W.3d
482, 503 (Tex. App.—El Paso 2008, pet. ref’d) (holding appellant not entitled to lesser-included
offense of criminally negligent homicide when evidence showed appellant was familiar with risk
of firearms). The record reflects Poehlmann was rendered a paraplegic when he was shot by
someone who was attempting to shoot his friend. The jury heard testimony from Poehlmann’s
sister that Poehlmann was riding in a car with his friend when someone from another vehicle
started shooting at them; as a result, Poehlmann’s friend was killed and Poehlmann was seriously
injured. Accordingly, the evidence shows Poehlman was personally familiar with the risks
associated with firearms and what can happen when they are fired.
Poehlmann, however, argues that because there was no evidence establishing he knew
Roxann was in the living area when he discharged the gun from the bedroom, a rational jury could
have reasonably inferred that he did not perceive that his conduct — firing a gun in the house —
would result in Roxann’s death. We disagree. To the extent Poehlmann is arguing there is
evidence establishing he accidentally shot Roxann, “[e]vidence of accidental discharge of a
weapon does not necessarily raise the issue of criminal negligence.” Whipple, 281 S.W.3d at 503
(citing Thomas, 699 S.W.2d at 850)). Rather, the evidence must show Poehlmann was unaware
of the risk created by his conduct. See id. And in this case, contrary to his contention, there is
nothing in the record establishing he was unaware that Roxann was in the living area when he fired
the gun. Rather, when viewing all the evidence as we must, the record reflects Poehlmann, having
been seriously injured by a firearm himself, was aware of the risks associated with firearms, had
been fighting with Roxann in the house, and then discharged a firearm in the house. Thus, there
is nothing in the record affirmatively showing Poehlmann failed to perceive the risks associated

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with discharging a firearm in the house when Roxann may or may not have been in the next room.
See Jackson, 248 S.W.3d at 371. Accordingly, we conclude the trial court did not err in failing to
instruct the jury on the lesser-included offense of criminally negligent homicide. We therefore
overrule Poehlmann’s sole issue.

Outcome: Based on the foregoing, the judgment of the trial court is affirmed.

Plaintiff's Experts:

Defendant's Experts:


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