Nadonte Pugh v. the State of Texas

Affirmed and Memorandum Opinion filed April 25, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00662-CR

NADONTE PUGH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1502705

MEMORANDUM OPINION

Appellant Nadonte Pugh appeals his conviction for capital murder challenging
the sufficiency of the evidence and the trial court’s failure to sua sponte instruct the
jury on the lesser-included offense of murder. Concluding the evidence supports
appellant’s conviction and he did not preserve error by requesting a lesser-included
offense instruction, we affirm.
BACKGROUND

Appellant entered a Raceway convenience store, pointed a gun at Faizan
Shaikh, who was operating the cash register, and attempted to rob Shaikh. Shaikh
backed away from appellant and ran toward a back room of the store. Ziaul Siddiqui,
another store employee, was already in the back room and tried to close the door to
the room attempting to bar appellant’s entrance. Appellant tried to force the door
open; Siddiqui, unable to close the door, pulled out a gun and shot appellant in the
groin. While trying to force open the door, appellant pointed his gun at Siddiqui and
shot him four times killing Siddiqui. All of this was captured on the convenience
store’s surveillance cameras, footage of which was admitted into evidence at
appellant’s trial.

Hua Li, a patron of the convenience store, arrived just as appellant was trying
to push his way into the back room. Li rushed out of the store when he saw appellant
holding a gun. Before Li could reach his car he heard gunshots. Li called 9-1-1 and
reported the robbery and “five or six” gunshots fired.

Officer Angel Martinez responded to a call about a gunshot victim in a
hospital in Humble who had been shot in the groin. Martinez recorded his visit with
the gunshot victim on his body-worn camera, which was admitted into evidence as
State’s exhibit 71. The gunshot victim identified himself as appellant.

Faizan Shaikh, the cashier on the night of the offense, testified to the events
on that night. Two days after the robbery/homicide, Shaikh identified appellant as
the perpetrator in a photographic lineup. Shaikh also identified appellant at trial.

The jury convicted appellant of capital murder. Because the State did not seek
the death penalty, appellant was sentenced to life in prison without the possibility of
parole. See Tex. Penal Code § 12.31(a)(2). This appeal followed.

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ANALYSIS

In two issues appellant challenges (1) the sufficiency of the evidence to
support his conviction; and (2) the trial court’s failure to sua sponte instruct the jury
on the lesser-included offense of murder.

I. The evidence is sufficient to support appellant’s conviction for capital
murder.

Appellant first asserts the evidence is insufficient to convict him of capital
murder because there is no evidence that he intended to kill Siddiqui.

When reviewing sufficiency of the evidence, we view all the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). We do not sit as a thirteenth juror and may not substitute our judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the
fact finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic to ultimate facts. Id.

We measure whether the evidence presented at trial was sufficient to support
a conviction by comparing it to the elements of the offense as defined by the
hypothetically correct jury charge for the case. Zuniga v. State, 551 S.W.3d 729, 733
(Tex. Crim. App. 2018). The hypothetically correct jury charge accurately sets out
the law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried. Id.
The “law as authorized by the indictment” includes the statutory elements of the

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offense as modified by the indictment. Id.

As pertinent here, a person commits the offense of capital murder if “the
person intentionally commits the murder in the course of committing or attempting
to commit . . . robbery[.]” Tex. Pen. Code § 19.03(a)(2). Appellant does not dispute
that legally sufficient evidence supports the jury’s findings that he killed Siddiqui
while committing a robbery. Appellant asserts, however, that since he was shot in
the groin, the evidence showed that a “struggle” occurred casting doubt on
appellant’s intent to kill Siddiqui.

Proof of a mental state such as intent almost always depends on circumstantial
evidence. Payne v. State, 502 S.W.3d 829, 832 (Tex. App.—Houston [14th Dist.]
2016, no pet.). A jury may infer intent from any facts that tend to prove its existence,
including the acts, words, or conduct of the accused, and the method of committing
the offense. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Hart v.
State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). “Naturally, the most obvious cases
and the easiest ones in which to prove a specific intent to kill, are those cases in
which a firearm was used and was fired or attempted to have been fired at a person.”
Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986).

Here, the jury viewed video of the offense from several camera angles taken
inside the convenience store. The jury saw appellant point a handgun at Shaikh, the
cashier, and when Shaikh retreated to the back room, appellant chased him. While
Siddiqui tried to close the door to the back room, appellant pushed the door open
and shot Siddiqui four times. The surveillance video clearly shows appellant
brandishing a gun, shooting Siddiqui, and running out of the store. If there was
evidence of a struggle it was because appellant was chasing the employees of the
convenience store into the backroom, then pushed the door open, and shot the
complainant four times. “Evidence that the defendant arrived at the scene of the

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crime carrying a loaded weapon is probative of deliberate conduct.” Adanandus v.
State, 866 S.W.2d 210, 216 (Tex. Crim. App. 1993). “[E]vidence of a struggle does
not necessarily negate deliberate conduct.” Id. The video evidence viewed by the
jury is sufficient to demonstrate that appellant’s actions were deliberate, and that by
shooting the gun at Siddiqui appellant intended to commit murder.

Having reviewed the record in the light most favorable to the verdict, we
conclude a rational jury had sufficient evidence to support a finding that appellant
intended to kill Siddiqui. We overrule appellant’s first issue.

II. Appellant did not preserve error on his request for a lesser-included
offense instruction.
In appellant’s second issue he contends the trial court erred in failing to
instruct the jury on the lesser-included offense of murder.

Before the charge was read to the jury, the trial court asked if both sides had
an opportunity to review the draft charge. Appellant’s counsel affirmed that he had
reviewed the charge and had no objections. On appeal, appellant contends the trial
court erred in failing to instruct the jury on the lesser-included offense of murder
even though he did not request this instruction. He further contends the error caused
him egregious harm under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984).

The trial court has a duty to sua sponte instruct the jury correctly on the law
applicable to the case. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998).
But a jury instruction on a defensive issue is not considered the “law applicable to
the case,” unless the defense requests its inclusion in the charge or objects to its
omission. See Tolbert v. State, 306 S.W.3d 776, 779–80 (Tex. Crim. App. 2010).
Accordingly, the court has no duty to sua sponte instruct the jury on defensive issues.
See Williams v. State, 662 S.W.3d 452, 455 (Tex. Crim. App. 2021) (“a trial court

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has no duty to sua sponte instruct on a lesser-included offense.”). A trial court does
not err by failing to instruct the jury on an issue that was, by virtue of the defendant’s
silence, inapplicable to the case. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim.
App. 2018).

The charge given to the jury in this case did not include an instruction on the
lesser-included offense of murder. The trial court discussed the jury charge with
counsel, and counsel stated they had no objections. On appeal appellant does not
contend that he requested a lesser-included offense instruction or objected to its
absence. The trial court therefore did not err in failing to instruct the jury on the
lesser-included offense. Tolbert, 306 S.W.3d at 780–81. Accordingly, there was no
jury-charge error to which Almanza’s analysis concerning egregious harm could
apply. Id. at 779, 782; see also Williams, 662 S.W.3d at 461 (“when the complained-
of error is the lack of a defensive instruction, the Almanza framework does not
apply.”).

Appellant asserts his case is distinguishable from Tolbert. Appellant alleges
“this is not a situation where the defendant/appellant is trying to game the appellate
system by resurrecting an all-or-nothing defense that fell flat.” In Tolbert, the
defendant was tried for and convicted of capital murder. Id. at 777–78. At trial, she
did not request that the jury be charged on the lesser-included offense of murder. Id.
at 778. Instead, she sought an acquittal on the basis that she did not commit capital
murder. Id. On appeal, however, she argued that the trial court had to include the
lesser-included offense instruction even though she had not objected to its omission
from the charge. Id. at 778–79. The Court of Criminal Appeals disagreed; it held that
the trial court did not err in failing to instruct the jury on the lesser-included offense,
as the lesser-included offense was not applicable to the case in the absence of a
request or objection by the defendant. Id. at 781. The court noted that the omission

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of this instruction from the charge was consistent with the defendant’s “all or
nothing” trial strategy of seeking an outright acquittal. Id.

We disagree with appellant’s characterization of the court’s holding in Tolbert
and conclude it is not distinguishable from the instant case. The court in Tolbert
stated a bright-line rule: a defendant may not claim error based on the trial court’s
failure to give a lesser-included offense instruction that he did not seek at trial
through request or objection. Id. at 781–82; see also Bowen v. State, 374 S.W.3d
427, 430 (Tex. Crim. App. 2012) (failure to seek inclusion of lesser-included offense
instruction at trial results in waiver of right to complain about its omission on
appeal). While the court’s rationale for this rule rested on the strategic considerations
that often underlie the decision to seek or forgo an instruction on a lesser-included
offense, the court did not hold that defendants could claim error so long as they could
show that they were not “trying to game the appellate system” by first seeking
outright acquittal at trial and then reversal based on the failure to give an unrequested
lesser-included offense instruction on appeal. Appellant failed to preserve error on
his jury-charge issue; therefore, we overrule appellant’s second issue.

CONCLUSION

Having overruled appellant’s issues on appeal we affirm the judgment of
conviction.

/s/ Jerry Zimmerer
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).

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