Full Opinion (html_with_citations)

Opinion filed December 21, 2023




                                    In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-22-00243-CR
                                  __________

                BRENDAN LAYNE JENKINS, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 220th District Court
                           Comanche County, Texas
                        Trial Court Cause No. CR04529


                     MEMORANDUM OPINION
      Appellant was convicted of capital murder for causing the deaths of Ashlyn
Smith, Patricia Stephens, and Earl Stephens during the same criminal transaction.
See TEX. PENAL CODE ANN. § 19.03(a)(7) (West Supp. 2023). The State did not seek
the death penalty.     Accordingly, the trial court sentenced Appellant to life
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice without the possibility of parole. See PENAL § 12.31(a)(2) (West 2019);
TEX. CODE CRIM. PROC. ANN. art. 37.071, § 1 (West Supp. 2023). In one issue,
Appellant contends that the trial court erred when it excluded the opinion testimony
of Appellant’s parents concerning their perception of Appellant’s sanity at the time
of the offense. We affirm.
                                       I. Factual Background
         Appellant called 9-1-1 at 7:20 a.m. on July 25, 2020 to report that there were
“three dead people” on rural residential property just outside De Leon. Appellant
told the dispatcher that he had shot his girlfriend and her grandparents, later
identified as Ashlyn Smith, Patricia Stephens,1 and Earl Stephens.
         Lawrence Jonap, chief of police for the De Leon Police Department, drove up
the dirt driveway and saw Appellant sitting outside of the residence on a futon
cushion with his hands up. Appellant confirmed that he was the shooter, and that he
called 9-1-1. After Chief Jonap took Appellant into custody, he found Smith inside
an RV camper, and Patricia and Earl in a separate house on the property. Smith died
from multiple gunshot wounds to her head, right shoulder, chest, left forearm, and
right wrist. Patricia suffered one gunshot wound to the head, and Earl was shot in
the neck and right forearm.
         Chief Jonap transported Appellant to the Comanche County Jail, where he
was interviewed by Texas Ranger Jason Shea. According to Appellant, he and Smith
moved into an RV camper on Patricia’s and Earl’s property in the beginning of June.
But Appellant, who converted to Islam in March of 2020, was struggling to balance
his faith and living with Smith. Appellant described their relationship as “rocky”
and “on and off” and stated that he had concerns about Smith’s religious beliefs.
         In the early morning hours of July 25, Appellant was reading the Quran on
Smith’s cellphone. He was using Smith’s cellphone because he had thrown his into

         1
          Because Patricia and Earl Stephens share the same last name, we will refer to them by their first
names.

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Lake Proctor a few days prior. Around 4:00 a.m., Smith’s cellphone died, and
Appellant “started to get really frantic,” began praying “really loudly,” and “freaking
[Smith] out.” Smith took her cellphone, but Appellant threatened to kill her if she
did not give it back; she complied.
      Appellant later revealed that he began hearing voices that morning telling him
to kill Smith and her grandparents or he “was going to go to hell.” After Smith fell
asleep on the couch, Appellant claimed that the voices told him, “[y]our only choice,
if you want to go to heaven for eternity, is to kill as many nonbelievers as you can.”
The voices then told Appellant to “[s]tart with [Patricia] and [Earl].”
      Around 6:45 a.m., Appellant walked to Patricia and Earl’s house with his
loaded Rock Island Armory 1911 pistol that he had recently purchased. Patricia was
sleeping on a mattress on the kitchen floor, while Earl slept in a hospital bed in the
kitchen area. Appellant shot Patricia once in the head before turning to Earl, and
fatally shooting him twice. After Appellant shot Earl, he searched for Earl’s
Tramadol prescription, an opioid pain medication, because he “wanted to get high.”
Unable to find any pills, Appellant returned to the RV camper where Smith was
sleeping. Appellant recalled shooting Smith once, then again after she started
screaming. However, the autopsy revealed that Smith suffered seven gunshot
wounds, which corresponds to the number of shell casings that were found near her
body in the RV camper.
      Appellant picked up two shell casings after shooting Smith, walked out to his
van, and considered leaving. He told Ranger Shea that he contemplated shooting his
neighbors, driving to Plano to see his father, or driving to Oregon, and “hurt[ing]
more people” along the way. Appellant decided against “going on the run” when he
realized that he had no gas, money, or ammunition. After determining he “had no
way out,” he called 9-1-1.


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      Appellant was charged with capital murder, and the State did not seek the
death penalty. At trial, Appellant raised the affirmative defense of insanity. See
PENAL § 8.01 (West 2021). In support of his defense, Appellant’s mother, Cynthia
Diane Christopher, and his father, Larry Layne Jenkins, testified that Appellant has
experienced several “mental health episode[s]” since December of 2015. Appellant
was arrested for assaulting Jenkins in April of 2016. Then, in September of 2016,
Jenkins and Christopher took Appellant to a psychiatric hospital because he claimed
to be hearing voices and was convinced that a device was implanted in his head. The
hospital refused to accept Appellant as a psychiatric patient, so his parents enrolled
Appellant in a thirty-day program at a mental health treatment center.
      In October of 2016, Jenkins and Christopher took Appellant to a facility for
mental health and substance abuse treatment after he again assaulted Jenkins.
Appellant successfully completed the ninety-day inpatient program and was
“completely normal” when they picked him up in February of 2017. However,
Appellant claimed that he was still hearing voices at night, so he began seeing a
psychiatrist, Dr. Anastasia Morgan, in March of 2017.
      Dr. Morgan testified, and her records of Appellant’s treatment were admitted.
Appellant reported having symptoms of depression, anxiety, and “significant drug
use,” including using cocaine and opioids. Appellant likewise told Ranger Shea that
he had been addicted to heroin and opioids “for about a year.” Dr. Morgan noted
that Appellant’s anxiety corresponded with his drug use, and that his continued use
of alcohol and drugs contributed to his psychotic symptoms.
      Dr. William Lee Carter, a psychologist, met with Appellant on February 28,
2022 at the Comanche County Jail to perform a sanity evaluation. Dr. Carter
determined that Appellant’s psychotic episodes could be “directly related to
substance abuse,” and noted that the first time Appellant had reported hearing voices
was when he was “high” on drugs. After concluding a five-hour interview session
                                          4
with Appellant and reviewing Dr. Morgan’s records and the evidence in the case,
Dr. Carter determined that Appellant was sane at the time of the offense. He
explained that Appellant’s psychological disturbance “influence[d] his thought
processes, but not to the extent that he could not appreciate right from wrong.”
      The trial court instructed the jury on Appellant’s affirmative defense of
insanity; the jury nevertheless found Appellant guilty of capital murder. Because
the State did not seek the death penalty, Appellant was sentenced to life
imprisonment without the possibility of parole. See PENAL § 12.31(a)(2); CRIM.
PROC. art. 37.071, § 1.
                                II. Standard of Review
      We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Rhomer v. State,
569 S.W.3d 664, 669
 (Tex. Crim. App. 2019). “The
trial court abuses its discretion when it acts without reference to any guiding rules
and principles or acts arbitrarily or unreasonably.”
Id.
 We will not reverse a trial
court’s decision to exclude evidence, and there is no abuse of discretion, unless that
decision lies outside of the zone of reasonable disagreement. Beham v. State,
559 S.W.3d 474, 478
 (Tex. Crim. App. 2018); De La Paz v. State,
279 S.W.3d 336
, 343–
44 (Tex. Crim. App. 2009).         Furthermore, we will not disturb a trial court’s
evidentiary ruling, even if the trial court’s reasoning is flawed, if it is correct on any
theory of law that reasonably finds support in the record and is applicable to the case.
Henley v. State,
493 S.W.3d 77, 93
 (Tex. Crim. App. 2016); De La Paz,
279 S.W.3d at 344
.
                                      III. Analysis
      A. Applicable Law
      Texas law excuses a defendant from criminal responsibility if he proves the
affirmative defense of insanity by a preponderance of the evidence. See PENAL
§ 8.01(a); Ruffins v. State,
270 S.W.3d 586
, 591–92 (Tex. Crim. App. 2008). This
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defense, if proven, excuses the defendant from criminal responsibility even though
the State has proven every element of the charged offense, including the mens rea,
beyond a reasonable doubt. Ruffins,
270 S.W.3d at 592
. To establish this defense,
it must be shown that, at the time of the conduct charged, the defendant—as a result
of a severe mental disease or defect—did not know that his conduct was “wrong.”
Id.
 “‘[W]rong’ in this context means ‘illegal.’”
Id.
      Properly admitted opinion testimony of a lay witness is sufficient to support
a finding of insanity. Pacheco v. State,
757 S.W.2d 729, 733
 (Tex. Crim. App.
1988). Rule 701 of the Texas Rules of Evidence permits a lay witness to testify to
opinions or inferences that are: “(a) rationally based on the witness’s perception; and
(b) helpful [to the factfinder] to clearly understanding the witness’s testimony or to
determining a fact in issue.” TEX. R. EVID. 701; see also Davis v. State,
313 S.W.3d 317, 349
 (Tex. Crim. App. 2010). “Perceptions refer to a witness’s interpretation of
information acquired through his or her own senses or experiences at the time of the
event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted).”
Osbourn v. State,
92 S.W.3d 531, 535
 (Tex. Crim. App. 2002); see Wade v. State,
663 S.W.3d 175
, 187 (Tex. Crim. App. 2022).
      Because Rule 701 requires testimony to be based on a witness’s perception,
the witness must have personally observed or experienced the events about which
he or she is testifying. Davis,
313 S.W.3d at 349
. “As a general rule, observations
that do not require significant expertise to interpret and which are not based on
scientific theory can be admitted as lay opinions.”
Id.
      The second requirement for admissibility under Rule 701 is that the lay
opinion must be helpful to the trier of fact to either understand the witness’s
testimony or to determine a fact issue. TEX. R. EVID. 701(b); Fairow v. State,
943 S.W.2d 895, 900
 (Tex. Crim. App. 1997). While there is no bright line indicating
when a lay opinion may be helpful, general evidentiary considerations of relevance
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and balancing will invariably assist the trial court in making such a determination.
Fairow,
943 S.W.2d at 900
. For example, a trial court properly acting within its
discretion may determine that the confusing, misleading, or cumulative nature of a
lay opinion renders it incapable of assisting the trier of fact and is thus improper
under Rule 701.
Id.
 (citing TEX. R. EVID. 403). This consideration is especially
important when the lay opinion concerns one’s culpable mental state.
Id.
 The trial
court must carefully consider such differences when deciding whether a lay opinion
will help the jury or confuse and mislead them. See id.; see also Lum v. State,
903 S.W.2d 365, 370
 (Tex. App.—Texarkana 1995, pet. ref’d) (holding that a witness’s
testimony regarding whether the defendant behaved negligently was properly
excluded because the witness was “not shown to be an expert on negligence or to
know the legal definition or standard of negligence”).
      Whether a lay opinion meets the fundamental requirements of Rule 701 is
within the discretion of the trial court, and the trial court’s evidentiary decision in
that regard will not be reversed absent an abuse of discretion. Fairow,
943 S.W.2d at 901
; Davis,
313 S.W.3d at 349
.
      B. Lay Opinion Testimony as to Appellant’s Sanity
      Appellant asserts that the trial court erroneously excluded his father’s and
mother’s lay opinions as to his sanity at the time of the offense. Outside the presence
of the jury, Appellant’s trial counsel proffered lay opinion testimony from Jenkins
and Christopher. Jenkins described Appellant as being “completely out of his mind”
and “detached from reality” during his “psychotic episode[s].” The last time that
Jenkins and Christopher had seen Appellant was July 14, 2020, when Appellant
traveled to Plano for a few days. Although Christopher did not “see[] anything
concerning,” Jenkins noticed Appellant sitting on a swing in his back yard, “sitting,
staring straight ahead,” and “was completely unresponsive” when he called
Appellant’s name. Jenkins opined that Appellant could not have known right from
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wrong when he shot and killed Smith, Patricia, and Earl. Jenkins and Christopher
also watched the recorded interview between Appellant and Ranger Shea and opined
that Appellant “did not know right from wrong” at that time.
      When questioned by the State, Jenkins admitted that he knew Appellant was
a heroin addict and had used heroin until early 2020. Jenkins also knew that
Appellant had used crack cocaine, attempted to commit suicide by overdosing on
Xanax, and “was drinking more than normal” by the spring of 2020. After their
opinion testimony was proffered, the trial court ruled that Jenkins and Christopher
were prohibited from rendering an opinion, in the presence of the jury, as to
Appellant’s sanity at the time of the offense. However, they could testify as to their
observations of Appellant or their experiences with him without expressing a
conclusion as to his mental culpability.
      Applying the fundamental requirements of Rule 701 to the facts and
circumstances of this case, we conclude that the trial court did not abuse its discretion
when it excluded Jenkins’s and Christopher’s conclusions that Appellant did not
know that his conduct was illegal. See Fairow, 943 S.W.2d at 898–99. The last time
they had seen Appellant was approximately ten days prior to Appellant’s
commission of the charged offense, and Jenkins last spoke to Appellant “probably
early in the week of July 25th . . . [m]aybe Monday,” July 20, 2020, five days before
he committed the offense. Because neither Jenkins nor Christopher had seen
Appellant at or near the time that the offense was committed, they lacked the
requisite personal knowledge to form an opinion as to Appellant’s sanity at that time.
Further, because they had not sensed or experienced Appellant’s behavior
immediately prior to or during the shootings, their proffered conclusions as to
Appellant’s sanity at the time of the offense were not rationally related to their
underlying perceptions of Appellant’s erratic behavior in the years leading up to the
offense. See Fairow, 943 S.W.2d at 899–900.
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        For the same reasons, we further conclude that the proffered opinion
testimony of Jenkins and Christopher would not have been helpful to the trier of fact
in determining Appellant’s sanity at the relevant time. See TEX. R. EVID. 701(b).
The trial court thus acted within its discretion when it prohibited Jenkins and
Christopher from rendering their opinions as to Appellant’s sanity at the time of the
offense.
        C. Alleged Error was Harmless
        Even if the trial court erroneously excluded the proffered testimony, and we
do not hold that it did, Appellant suffered no harm by its exclusion.
        The erroneous exclusion of evidence generally constitutes nonconstitutional
error and is subject to review under Rule 44.2(b). See TEX. R. APP. P. 44.2(b);
Walters v. State,
247 S.W.3d 204, 219
 (Tex. Crim. App. 2007). An erroneous
exclusion of evidence might rise to the level of a constitutional violation if it
effectively prevents the defendant from presenting his defensive theory. Walters,
247 S.W.3d at 219
 (citing Potier v. State,
68 S.W.3d 657, 665
 (Tex. Crim. App.
2002)). However, the trial court’s ruling in this case did not have that effect, as
Appellant was not precluded from presenting a defense. 2 See
id.
        Nonconstitutional error that does not affect a defendant’s substantial rights
must be disregarded. Stredic v. State,
663 S.W.3d 646
, 655 (Tex. Crim. App. 2022).
An error affects a defendant’s substantial rights only if it has a substantial and
injurious effect or influence in determining the jury’s verdict.
Id.
 Put another way,

        2
           Walters provides that the exclusion of evidence might rise to the level of a constitutional violation
if, in relevant part, “a trial court’s clearly erroneous ruling results in the exclusion of admissible evidence
that forms the vital core of a defendant’s theory of defense and effectively prevents him from presenting
that defense.”
Id.
 As we have said, the trial court did not err, much less clearly err, when it excluded
Jenkins’s and Christopher’s proffered opinion testimony regarding Appellant’s sanity at the time of the
offense. Such evidence was inadmissible under Rule 701, and, as detailed below, other admissible evidence
and a jury instruction were provided to the jury regarding Appellant’s insanity defense. Appellant’s trial
counsel had the opportunity to cross-examine Dr. Morgan, Dr. Carter, and Ranger Shea regarding their
relevant and admissible statements and to advance Appellant’s insanity defense at trial by relying on their
statements and Jenkins’s and Christopher’s admitted testimony.

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an error does not affect a defendant’s substantial rights if an appellate court has fair
assurance from an examination of the record as a whole that the error did not
influence the jury or had only a slight effect.
Id.
 at 655–56.
       We have reviewed the record and have fair assurance that the trial court’s
exclusion of Jenkins’s and Christopher’s ultimate conclusions as to Appellant’s
sanity at the time of the offense did not influence the jury’s verdict, or if it did, it had
only a slight effect. See
id.
 They were permitted to testify that Appellant heard
voices, attempted suicide, assaulted Jenkins at least twice, and was admitted to a
facility for mental health and substance abuse treatment. Jenkins and Christopher
detailed Appellant’s history of mental illness for the jury, and thus the jury in its
factfinding role could have determined, based on their testimony, that Appellant was
experiencing the same detachment from reality during the shootings. As such, the
jury could have found Appellant not guilty by reason of insanity even without
Jenkins’s and Christopher’s proffered testimony concerning their opinions of
Appellant’s sanity at the time of the offense.
       Nevertheless, and despite Jenkins’s and Christopher’s admitted testimony,
Dr. Morgan and Dr. Carter testified that Appellant’s mental health issues were
related to his drug use. Dr. Carter testified that Appellant was sane at the time of the
offense. Moreover, Appellant told Ranger Shea within hours after the shootings that
he knew his conduct was wrong, and that he “wouldn’t do this for anything” if he
had it to do over again. Based on the record before us, we further conclude the trial
court’s exclusion of the proffered lay opinions was harmless.
       Accordingly, we overrule Appellant’s sole issue.




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                               IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                               W. STACY TROTTER
                                               JUSTICE


December 21, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.




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