AFFIRMED and Opinion Filed August 5, 2021
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01236-CR
AMBER RENEE GUYGER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F18-00737-Q
OPINION Before Chief Justice Burns, and Justices Myers and Partida-Kipness Opinion by Chief Justice Burns Amber Renee Guyger was convicted of murdering Botham Jean and
sentenced by the jury to ten years’ imprisonment. In two issues, Guyger argues the
evidence is legally insufficient to support her murder conviction and second, and in
the alternative, this Court should acquit her of murder, convict her of criminally
negligent homicide, and remand for a new hearing on punishment. We affirm the
trial court’s judgment.
In July 2018, Guyger moved to the Southside Flats Apartments in Dallas
where she lived alone in apartment 1378. Residents of the apartment complex use key fobs rather than traditional keys to unlock their apartment doors. The complex
has a multilevel garage with entrances on each floor. Each hallway entrance lacks
any placard or other indicator showing which floor of the complex the hallway
accesses or which floor of the garage can be accessed by exiting the hallway.
On September 6, 2018, Guyger, a Dallas police officer, left work at 9:33 p.m.
Guyger and her partner Martin Rivera exchanged texts about getting together later
that evening. Rivera called Guyger at 9:38 p.m., and she was on the phone with him
at 9:46 p.m. when she pulled into the parking garage at her apartment complex.
Guyger continued speaking to Rivera until almost 10:00 p.m.
Guyger testified that, when she parked in the garage, she believed she was on
the third floor. She did not notice the garage roofline on the fourth floor was
different from the roofline on the third floor. As Guyger walked down the hallway
on the fourth floor, she believed she was on the third floor where her apartment was
located. When she reached apartment 1478, she believed she was outside her own
apartment. Guyger testified that, while she was standing outside the apartment, she
heard loud shuffling, like someone was walking inside. Guyger admitted that, before
she opened the door, she concluded there was a threat inside the apartment; however,
she did not take a position of cover and concealment or call for backup.
The door was ajar and not latched closed. Guyger turned her key fob in the
lock, which opened the door farther. Using her left arm, Guyger pushed open the
2 door. Guyger testified these events occurred in the span of two seconds. There was
no light on inside the apartment, but Guyger said she “heard moving around inside”
and was “scared to death.”
Guyger testified she dropped her police vest and other equipment in front of
the door to keep the door propped open. Looking into the apartment, which had the
same floor plan as her apartment, she saw a “silhouette figure” standing in the back
of the apartment. From where she was standing near the doorway, she could not see
the figure’s hands. Guyger pulled her weapon and yelled, “Let me see your hands.
Let me see your hands.” According to Guyger, the figure walked towards her at a
fast pace, yelling “hey, hey, hey” in “an aggressive voice.” Guyger was focused
only on the figure—Botham Jean, the lawful inhabitant of apartment 1478—and she
testified she believed he was going to kill her. Guyger fired two shots at Jean,
intending, in her words, “to kill him.” One round struck the south wall of Jean’s
apartment, and the other struck Jean in the chest. Jean fell to the ground with his
feet pointed away from the couch on which he had been sitting and his head close to
an ottoman and couch.
When Guyger walked into the kitchen, she saw the interior of the apartment
and realized she was not in her apartment. Confused, Guyger knelt next to Jean.
She knew she had shot him, but she did not know where the bullet hit him. At 9:59
p.m., Guyger called 911 with the phone in her right hand. She testified that, at the
3 same time, she began chest compressions on Jean with her left hand. She identified
herself as a police officer to the 911 operator, requested an “officer assist,” and
repeatedly told the operator she thought she had shot someone in what she believed
was her apartment. She did not know where she was and went out in the hallway to
look at the apartment number so she could provide that information to the operator.
While on the phone with the operator, Guyger performed a sternum rub, which she
had seen paramedics perform to wake up someone who is unconscious. From the
five-minute 911 recording, the jury heard Guyger say twenty times she thought she
was in her own apartment. They also heard her say, “stay with me, Bud,” several
times, “I f***ed up,” and “I’m gonna lose my job.”
In response to Guyger’s “officer assist” call, officers Keenan Blair and
Michael Lee were the first to arrive at Jean’s apartment. Guyger directed the officers
into apartment 1478. As reflected in body camera video, Lee instructed Guyger to
move away from Jean as he and then Blair performed CPR on Jean, who was alive
but unconscious. Lee’s body camera video showed Jean bleeding from a gunshot
wound and Guyger saying repeatedly that she had shot Jean.
When paramedic John Farleigh arrived at Jean’s apartment at 10:08 p.m.,
Dallas police officers were performing CPR on Jean, but he had no pulse and was
not breathing. The paramedics took over first aid from the officers and transported
Jean to Baylor Medical Center, where he died without regaining consciousness.
4 Detective Eduardo Ibarra testified that a blood test was performed on Guyger
at approximately 3:00 a.m. No drugs or alcohol were detected in Guyger’s blood.
Ibarra also seized all parts of Guyger’s uniform for lab analysis of any biological
evidence on the uniform. No blood was found on her uniform, and none of the latex
gloves Guyger carried while on duty that day had been used.
Detective Dale Richardson testified that he arrived on the scene around 11:10
p.m. and initially met with Ibarra. After obtaining a search warrant, Richardson
located a set of keys hanging from the door that he believed were Guyger’s. The
jury saw video evidence demonstrating how the locking mechanism on the doors
worked. A small blinking red light lit up when the wrong fob was inserted, but a
small blinking green light lit up and the door electronically unlocked when the
correct fob was inserted. Video of Richardson and Ibarra comparing use of Guyger’s
key and Jean’s key was also played, which demonstrated that when inserted into the
door of apartment 1478, Guyger’s key generated a red light and would not activate
the lock, but Jean’s key generated a green light and made a “whirring sound” while
it unlocked the door.
The Texas Rangers took over the investigation from the Dallas Police
Department the day after the shooting, met with Ibarra and Richardson, and reviewed
the evidence collected by DPD. Texas Ranger David Armstrong characterized the
5 layout of the apartment complex as “confusing” and discovered that about 23% of
residents who lived on the third and fourth floors and 15% of residents in the entire
building had, at some point, put their key fob in the wrong door. Armstrong testified
residents gave numerous reasons why they realized they were in the wrong place:
the red blinking light on the door lock, nearby decorations indicating a different
resident’s apartment, or an incorrect apartment number. In the same vein, several
residents testified about having gone to the wrong floor or apartment.
April Kendrick, a supervisor of the firearm and tool mark unit at the
Southwestern Institute of Forensic Sciences, confirmed the shell casings found in
Jean’s apartment were fired from Guyger’s nine millimeter pistol. Kendrick also
testified that the bullet trajectory indicated Jean may have been bent over and rising
from the couch when he was shot. Testimony from the medical examiner, Dr.
Chester Gwin, revealed that Jean died from the single gunshot to his chest. The
bullet entered his chest just above his nipple and traveled on a steep trajectory
downward through his left lung, heart, diaphragm, stomach, and intestine, stopping
in a muscle in his left abdomen near his spine. Dr. Gwin explained the bullet’s path
indicated that either the shooter was standing over Jean and shooting down, or Jean
was lying down or bent forward, in the process of getting up from the couch or
ducking. Guyger could not explain the inconsistency between her testimony that
Jean was standing straight up and moving toward her when she shot him and the
6 bullet trajectory evidence indicating Jean was shot from above or while in the
process of getting up or ducking.
Texas Ranger Michael Adcock testified about the trajectory of the bullet that
hit the back wall in Jean’s apartment. The flight path of that bullet indicated it had
been fired from the doorway, which was also confirmed by gunshot residue
recovered on the doorframe. At the conclusion of the evidence, the jury found
Guyger guilty of murder as charged in the indictment. This appeal followed.
In her first issue, Guyger argues the evidence is legally insufficient to prove
beyond a reasonable doubt that she committed murder. Specifically, Guyger argues
“(1) through mistake, Guyger formed a reasonable belief about a matter of fact—
that she entered her apartment and there was an intruder inside—and (2) her
mistaken belief negated the culpability for [m]urder because although she
intentionally and knowingly caused Jean’s death, she had the right to act in deadly
force in self-defense since her belief that deadly force was immediately necessary
was reasonable under the circumstances.”
I. Legal Sufficiency
We review a challenge to the sufficiency of the evidence on a criminal offense
for which the State has the burden of proof under the single sufficiency standard set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621,
624–25 (Tex. Crim. App. 2014). Under this standard, “the relevant question is
7 whether, after viewing the evidence in the light most favorable to the verdict, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(quoting Jackson, 443 U.S. at 319) (emphasis in original). We measure the evidence
by the elements of the offense as defined by the hypothetically correct jury charge.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “This standard
accounts for the factfinder’s duty ‘to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”
Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319). “Therefore, in
analyzing legal sufficiency, we ‘determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.’” Clayton, 235 S.W.3d at 778
(quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).
Here, Guyger maintains that the evidence is legally insufficient to show she
committed murder in one of the ways set forth in section 19.02 of the Texas Penal
Code, which provides in relevant part that a person commits murder if she
(1) intentionally or knowingly causes the death of an individual; [or]
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual . . . .
TEX. PEN. CODE § 19.02(b)(1), (2). The indictment charged Guyger alternatively
with both theories, both theories were submitted to the jury, and the jury returned a
8 guilty verdict that did not specify which theory it relied upon. Evidentiary support
for either theory will therefore support the verdict. Sanchez v. State, 376 S.W.3d
767, 775 (Tex. Crim. App. 2012) (“When a jury returns a general guilty verdict on
an indictment charging alternate methods of committing the same offense, the
verdict stands ‘if the evidence is sufficient to support a finding under any of the
theories submitted.’”) (quoting Kitchens v. State, 823 S.W.3d 256, 258–59 (Tex.
Crim. App. 1991)); Williams v. State, 473 S.W.3d 319, 324 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d) (“When the charge authorizes the jury to convict the
defendant on more than one theory, as it did in this case, the verdict of guilt will be
upheld if the evidence is sufficient on any theory authorized by the jury charge.”);
see London v. State, 325 S.W.3d 197, 206–07 (Tex. App.—Dallas 2008, pet. ref’d).
Guyger testified she intended to kill Jean when she shot him. In addition, the
State introduced evidence that Jean was a living human being—an individual—
whose death was caused by the gunshot wound inflicted by Guyger. Accordingly,
legally sufficient evidence supports the jury’s murder verdict. TEX. PEN. CODE §
19.02(b)(1), (2); see Clayton, 235 S.W.3d at 778–79. Guyger bore the burden of
producing evidence supporting each of her defensive issues, while the State retained
the burden of persuasion to disprove those defenses beyond a reasonable doubt.
Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018).
9 A. Mistake of Fact
“It is a defense to prosecution that the actor through mistake formed a
reasonable belief about a matter of fact if his mistaken belief negated the kind of
culpability required for commission of the offense.” TEX. PENAL CODE § 8.02(a).
Thus, this defense applies when the defendant’s mistaken belief, if accepted as true,
negates the culpable mental state for the crime charged. Granger v. State, 3 S.W.3d
36, 41 (Tex. Crim. App. 1999). The defense “applies only with respect to elements
that require proof of a culpable mental state.” Celis v. State, 416 S.W.3d 419, 430
(Tex. Crim. App. 2013). If the evidence raises the defense, “whether that evidence
is weak or strong, unimpeached or contradicted, and regardless of what the trial court
may or may not think about the credibility of the evidence,” the trial court should
provide the instruction. Granger, 3 S.W.3d at 38. Thus, in this case, mistake of fact
would apply if Guyger mistakenly formed a reasonable belief that negated her intent
to kill Jean.
We differentiate mistake of fact—a defense—from justification. Justification
depends on the circumstances giving rise to the challenged conduct, and the
reasonableness of the defendant’s belief that the conduct is immediately necessary
to avoid imminent harm.
Conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law
10 proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.”
TEX. PEN. CODE § 9.22. For instance, justification excuses the use of force against
another person “when and to the degree the actor reasonably believes the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” TEX. PEN. CODE § 9.31(a). As such, Guyger would have been
justified in shooting Jean if she had formed a reasonable belief that doing so was
necessary to avoid imminent harm, as we discuss below.
As the State points out, a case from our sister court, Maupin v. State, provides
insight into the proper analysis in this case. See Maupin v. State, 930 S.W.2d 267,
268 (Tex. App.—Fort Worth 1996, pet. ref’d). Maupin was convicted of injury to
the elderly following an incident in which he repeatedly threw and pushed a woman
to the ground several times, causing her bodily injury. Id. As with the murder charge
against Guyger, the crime with which Maupin was charged—injury to the elderly—
turned on the intent to cause the result of the crime. Id. (“it is the intent to cause the
result, the bodily injury, that is the gravamen of the offense.”). Maupin asserted that
his mistaken belief that the complainant was burglarizing his home warranted a
mistake of fact instruction refused by the trial court. Id. But the court of appeals
affirmed the trial court, concluding evidence of a potential burglary failed to negate
Maupin’s intent to cause bodily injury, and at best raised the defense of protection
11 of property. Id. No evidence suggested “Maupin was mistaken about whether the
force he used would cause bodily injury.” Id.
In addition, Rocha v. State provides a particularly apt comparison. See Rocha
v. State, No. 14-10-00569-CR, 2012 WL 1154306, at *9 (Tex. App.—Houston [14th
Dist.] Apr. 5, 2012, pet. ref’d) (mem. op., not designated for publication). Rocha
was an off-duty police officer convicted of aggravated assault with a deadly weapon
arising from an altercation outside his home. Id. at *2–5. On appeal, Rocha
complained the trial court erred in refusing his mistake of fact instruction based on
Rocha’s testimony about his mistaken belief that Dunham, the victim, was “armed,
was dangerous, or was preparing to attack, [or] assault [Rocha].” Id. at *9. In
affirming the trial court’s refusal to give the instruction, the court observed the facts
about which Rocha was mistaken did not negate the “culpable mental element of
aggravated assault.” The court reasoned as follows:
Appellant does not dispute that he intentionally or knowingly pointed the rifle at Dunham to place him in fear of imminent bodily injury. Instead, appellant’s alleged mistaken beliefs were merely facts relevant to whether he was justified in intentionally or knowingly pointing the rifle at Dunham to create such fear of imminent bodily injury; i.e., whether he acted in self-defense based on a reasonable belief such force or threat of force was immediately necessary to protect himself against Dunham’s use or attempted use of unlawful force.
Id. at *10.
In contrast, the court of criminal appeals determined in Granger that the trial
court erred in refusing the appellant’s requested mistake of fact instruction where
12 the evidence demonstrated appellant had killed a person by shooting into a car but
also testified that, at the time he fired the shots, he believed the car was unoccupied.
Granger, 3 S.W.3d at 37–39. “‘When an accused creates an issue of mistaken belief
as to the culpable mental element of the offense, he is entitled to a defensive
instruction of ‘mistake of fact.’” Id. at 41 (emphasis added) (quoting Miller v. State,
815 S.W.2d 582, 585 (Tex. Crim. App. 1991)).
Here, Guyger asserts her mistaken beliefs that she had entered her own
apartment and that Jean was an intruder negate her culpable intent to commit murder
because “although she intentionally and knowingly caused Jean’s death, she had the
right to act in deadly force in self-defense” under penal code section 9.32(b), and
“deadly force was immediately necessary and reasonable under the circumstances.”
However, as in Rocha and Maupin, the mistaken facts upon which Guyger relies are
relevant only to whether Guyger was justified in shooting Jean. Guyger’s right to
act in self-defense, if applicable, did not negate her intent to kill Jean; self-defense
instead would have justified the shooting.
In this regard, Guyger’s brief highlights “48 distinct factual points” which she
contends show her “clear mistake of fact” and her reasonable conduct under the
circumstances. Those points include the following: her fatigue; talking on the phone
when she mistakenly parked on the unmarked but wrong floor of the garage; missing
visual cues distinguishing the fourth floor from the third; the unlatched door that she
13 was able to open even though her key fob did not unlock it; the dim lighting in the
apartment and floor plan identical to her own apartment; and her training to shoot to
kill when she believed she was in mortal danger. None of these points, however,
speak even remotely to Guyger’s intent to kill. Instead, each fact relates only to
whether she was justified in defending herself because she believed she was in her
own apartment and that Jean was an intruder. Thus, rather than conclusively proving
her mistake of fact defense, the evidence here demonstrates the mistake of fact
instruction was not warranted because no evidence negated Guyger’s intent to kill
Jean when she shot him.1 We conclude the hypothetically correct jury charge should
not have included a mistake of fact instruction. Accordingly, the mistake of fact
issue is not part of our analysis of the sufficiency of the evidence to support Guyger’s
murder conviction. See Malik, 953 S.W.2d at 240.
B. Self-Defense
Guyger also argues that a reasonable jury could not have rejected self-defense
as a justification for her use of deadly force. Acquittal premised on self-defense
required Guyger to produce evidence that she reasonably believed deadly force was
1 We decline Guyger’s invitation to rely on a decision from the United Kingdom’s High Court of Justice, Jaggard v. Dickinson, [1981] 72 CR. App. R. 33 (Eng.). In addition to lacking precedential value, as observed by the State, the defendant in that case did not rely on mistake of fact as a defense for having damaged a property at an address she mistakenly believed to be a different address. Rather, the Jaggard defendant relied on a British statute providing a “lawful excuse” based on her belief that the property owner had consented to the damage under which the reasonableness of the defendant’s belief was irrelevant. Id. at 35–36.
14 immediately necessary to protect herself from Jean’s use or attempted use of
unlawful force. See TEX. PEN. CODE §§ 9.31(a), 9.32(a)(1), 9.32(a)(2). An actor’s
belief that deadly force was immediately necessary is presumed to be reasonable if
the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B).
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
TEX. PEN. CODE § 9.32(b).
Under these provisions, the jury did not need to find that Jean was using or
attempting to use unlawful deadly force for Guyger’s right of self-defense to exist.
It could determine instead that she reasonably believed, from her standpoint at the
time of the shooting, “that deadly force, when and to the degree used . . . was
immediately necessary to protect [herself] against the use or attempted use of
15 unlawful deadly force” by Jean. Id.; Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim.
App. 1976).
In making this argument, Guyger relies on her mistaken belief that she was in
her own apartment to support the reasonableness of her belief that Jean posed an
imminent threat. Mistake of fact, however, plays no role in self-defense—the former
addresses Guyger’s culpable mental state; the latter addresses the circumstances and
reasonableness of Guyger’s conduct. Guyger’s argument thus bootstraps mistake of
fact to reach the section 9.32(b) presumption of reasonableness. As discussed below,
we conclude sufficient evidence defeated the presumption and also supports the
jury’s rejection of this defense because a reasonable jury could have determined
Guyger’s belief that deadly force was immediately necessary was not reasonable.
The jury could reasonably have determined beyond a reasonable doubt that
Jean had not unlawfully and with force entered Guyger’s occupied home or
attempted to murder her.2 Indeed, Guyger points to no evidence suggesting either
scenario occurred. Instead, she relies on her mistaken belief that she was in her own
apartment. The jury’s rejection of Guyger’s self-defense argument finds ample
2 We omit discussion of beliefs premised on vehicles or places of business since no one disputes that all relevant events occurred at Jean’s apartment. See TEX. PEN. CODE §§ 9.31(a), 9.32(b)(1)(A), 9.32(b)(1)(B). Likewise, because Guyger testified only that she believed Jean intended to kill her, we omit discussion of any efforts to remove Guyger from her home, attempted aggravated kidnapping, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. See TEX. PEN. CODE §§ 9.31(a)(1)(B), 9.31(a)(1)(C). 9.32(b)(1)(B), 9.32(b)(1)(C).
16 support in the record. It is undisputed that Jean was in his home and was not
attempting to unlawfully enter Guyger’s apartment. Further, Guyger admitted that
she could have taken a position of cover and concealment while she called for
backup rather than shooting Jean. This admission was buttressed by the testimony
of Officer Lee. In his testimony, Lee told the jury that if he came across a burglar
while off duty and was safely able to take a position of cover and concealment, he
would use his take-home radio to call for help rather than call 911. He explained the
radio connected directly to dispatch and thus provided faster help since the 911 call
would be delayed by the transfer to dispatch. He also testified that, when responding
to a burglary call in which he had not yet entered the premises, for his safety and
that of the person inside, his training mandated taking a position of cover and
concealment rather than entering alone. In a burglary situation in which he had
already entered the premises but had the option of safely repositioning to cover and
concealment, he would likewise do so rather than shooting the intruder. He also
testified that, if there were a burglar or other intruder in his home, he would allow
that person the opportunity to surrender. He explained that in intense situations
where another person posed a threat, he focused on the suspect’s hands to determine
whether the suspect held an item that could cause bodily harm, and in those situations
it was important to determine where the suspect’s hands were.
17 Other evidence also supports the jury’s rejection of self-defense. This
evidence includes the conflicting evidence as to whether Jean was seated or rising
from a sitting position rather than standing and moving quickly towards Guyger; the
conflicting evidence as to whether Guyger demanded that Jean show his hands3; the
absence of any pockets in which Jean’s hands might have been concealed; the
ambiguous nature of Jean’s “hey, hey, hey” exclamation; and the lack of evidence
suggesting Jean held a weapon. See Braughton, 569 S.W.3d at 610 (jury could
rationally have rejected appellant’s “reason to believe” decedent was committing or
attempting to commit robbery or murder given conflicting evidence and jury’s
resolution of factual disputes); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim.
App. 1991) (concluding a rational jury could have found beyond a reasonable doubt
appellant did not act in self-defense where the victim was unarmed when he lunged
at appellant, appellant said at the scene that the shooting occurred accidentally, and
the evidence showed hammer on weapon had to be fully cocked to fire); Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury may choose to believe or
not believe the witnesses, or any portion of their testimony). On this record, we
conclude the evidence was legally sufficient to support the jury’s rejection of
3 Although Guyger testified she told Jean to show his hands and he did not show his hands, other witnesses including Bharathamarnath Madamanchi, Taydra Jones, and Whitney Hughes testified they heard two shots but did not hear Guyger tell Jean to show his hands.
18 Guyger’s assertion of self-defense. We overrule Guyger’s first issue. In reaching
this conclusion, we need not address the State’s cross-point.4
II. Criminally Negligent Homicide
In her second issue, Guyger contends that we should acquit her of murder,
convict her of criminally negligent homicide, and remand the case for a new
punishment hearing. She asserts that if she was not reasonable in her mistake that
she was in her own apartment and also not reasonable in believing deadly force was
immediately necessary to protect herself from Jean, then she was guilty only of
criminal negligence.
Guyger’s mental state with respect to the result of her conduct—Jean’s
death—determines the applicable offense. See Schroeder v. State, 123 S.W.3d 398,
400 (Tex. Crim. App. 2003) (“Murder is a ‘result of conduct’ offense, which means
that the culpable mental state relates to the result of the conduct, i.e., the causing of
the death.”). Awareness that certain conduct will create a substantial and
unjustifiable risk that death will result gives rise to manslaughter. TEX. PEN. CODE
§§ 6.03(c), 19.04; Schroeder, 123 S.W.3d at 400–01. Lack of such awareness
differentiates manslaughter from criminally negligent homicide. Harris v. State, No.
4 See TEX. R. APP. P. 47.1; see also Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex. Crim. App. 2012) (“[i]f the defendant is granted no relief and no retrial will therefore be held, the State will not be able to benefit from a favorable decision on its cross-points of error.”); Seghelmeble v. State, 390 S.W.3d 576, 582–83 (Tex. App.—Dallas 2012, pet. ref’d) (appellate court may not address cross-issue “in which the State merely requests a directive as to language or reasoning of the lower court that does not impact the ultimate decision.”) (quoting Pfeiffer, 363 S.W.3d at 601 n.32).
19 05-96-01531-CR, 1999 WL 562708, at *6 (Tex. App.—Dallas Aug. 3, 1999, pet.
ref’d) (op. on reh’g) (not designated for publication) (“Either the actor is aware that
his conduct bears a risk of unintended death, or he is not so aware. The presence or
absence of that awareness determines whether the offense is manslaughter or
criminally negligent homicide.”). Failing to perceive that certain conduct creates a
substantial and unjustifiable risk of death through a gross deviation from the
reasonable standard of care exercised by ordinary people gives rise to criminally
negligent homicide. Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App.
2012); TEX. PEN. CODE §§ 6.03(d), 19.05. The conscious objective or desire to cause
death, or awareness that certain conduct is reasonably certain to cause death, gives
rise to murder. TEX. PEN. CODE §§ 6.03(a), 19.02(b); Lugo-Lugo v. State, 650
S.W.2d 72, 81 (Tex. Crim. App. 1983).
Rather than her intent to cause the result of her conduct—her intent to kill
Jean by shooting him—Guyger relies on certain circumstances leading to her
conduct. In asserting she did not consciously create or perceive the risk that Jean
would be killed, she points to the confusing layout of the apartment complex, the
poor assembly or construction of the apartment doors which enabled them to remain
unlocked even if closed, and her failure to notice the “clues”5 in the hallway
5 Guyger identifies these clues as a large vase in the hallway, Jean’s red doormat, and the apartment numbers to the right of the door. Although, as noted above, such circumstances are irrelevant to Guyger’s mental
20 indicating she was on the wrong floor. But her perception of circumstances creating
the series of events here has no bearing on whether she acted intentionally or
knowingly or instead acted with criminal negligence. The evidence is undisputed
that Guyger intended the result of her conduct or acted knowingly with respect to
the result of her conduct because she testified she intended to shoot and kill Jean.
That she was mistaken as to Jean’s status as a resident in his own apartment or a
burglar in hers does not change her mental state from intentional or knowing to
criminally negligent. We decline to rely on Guyger’s misperception of the
circumstances leading to her mistaken beliefs as a basis to reform the jury’s verdict
in light of the direct evidence of her intent to kill. Compare Salinas v. State, 644
S.W.2d 744, 746 (Tex. Crim. App. [Panel Op.] 1983) (presuming “appellant was
aware of the risk of injury or death by having a loaded, cocked pistol and exhibiting
it”); see also, e.g., Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App. 2013)
(“appellate court should not render a judgment of conviction for a lesser-included
offense unless there is proof beyond a reasonable doubt of all elements of the lesser-
included offense.”). As previously discussed, legally sufficient evidence supports
the jury’s verdict finding Guyger guilty of murder. We overrule her second issue.
state, we observe nonetheless that Guyger omits discussion of additional circumstances, for instance choosing not to retreat, take cover, and call for backup, which are of equal weight to the clues she discusses.
21 We overrule Guyger’s appellate issues. Accordingly, we affirm the trial
court’s judgment.
/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
191236F.U05
22 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
AMBER RENEE GUYGER, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F18-00737-Q. No. 05-19-01236-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Partida- THE STATE OF TEXAS, Appellee Kipness participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 5, 2021