Opinion issued December 4, 2014
In The
Court of Appeals
For The
First District of Texas
manslaughter2 and assessed Appellant’s punishment at 23 years in prison. In one issue on appeal, Appellant asserts that the trial court erred by refusing to instruct the jury on the lesser-included offense of criminally negligent homicide.
We affirm.
Background
On April 8, 2012, at around 11:00 p.m., Fallon Kiser went to a bar to meet friends, including her date, Jerold Griffin, and her best friend, Katherine Brownlow-Stewart, the complainant in this case. Appellant was also at the bar. He was Katherine’s date.
The group stayed at the bar for a while and then went to a second club.
Fallon and Katherine were at the second club when, around 3:00 a.m., Jerold decided that he wanted to leave. Although she wanted to stay at the club, Fallon decided to leave with her date.
Fallon and Jerold rode in the backseat of Jerold’s vehicle, a white SUV.
Jerold’s cousin, Devline Smallwood, was driving, and another acquaintance, Cedric Jackson, rode in the front passenger seat. During the ride, Fallon and Jerold started to argue. They both had been drinking alcohol that night, and Jerold was drunk.
2 See id. § 19.04 (Vernon 2011).
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Fallon got out of the vehicle and began walking along the road, which was in an isolated area. Devline drove the SUV slowly along the road to keep pace with Fallon. The men encouraged Fallon to get back in the vehicle, but she would not comply. Jerold got out of the SUV and began walking with Fallon trying to convince her to get back in the vehicle. The two continued to argue as they walked.
Fallon called Katherine to come pick her up. Katherine arrived shortly after Fallon called her. Katherine was driving her black SUV. Appellant was in the front passenger seat.
Fallon got into the backseat of Katherine’s vehicle. Katherine and Jerold began arguing, and Jerold walked toward Katherine’s SUV in what Fallon later described as an aggressive manner. Fallon saw Katherine reach under her driver’s seat to grab a gun, which Fallon knew Katherine kept in her vehicle, but Katherine could not locate the weapon.
As Jerold approached her SUV, Katherine opened her door, hitting Jerold in the face. Katherine then got out of the vehicle and began hitting Jerold. Fallon also got out of the SUV and went to assist Katherine in the physical altercation with Jerold. The two women engaged in a physical fight with Jerold for about 10 to 15 minutes.
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The women were winning the fight when Devline approached to break it up.
He grabbed Jerold around the waist and tried to pull him away.
At this point, the group was near the driver’s side of Katherine’s SUV. The driver’s side door and window were open. Appellant had never gotten out of Katherine’s vehicle and remained seated in the front passenger’s seat.
Without warning, the group heard a gunshot. It was Appellant; he had fired a revolver from inside Katherine’s SUV. Katherine told Fallon to “get down.” The two women ducked down by the vehicle. Jerold and Devline ran away. Cedric, who was further away, hid in the bushes. Ten to fifteen seconds passed. Appellant fired the gun a second time. That shot hit Jerold in the arm as he ran away. Some time passed, and Katherine and Fallon thought it was safe. Katherine stood up and went to get in the driver’s side of her vehicle. About five seconds after she stood up, Appellant fired the gun a third time, shooting Katherine in the head. Katherine fell into Fallon’s arms, and they both fell to the ground.
Fallon looked at Appellant and saw him holding the gun. He was shaking.
Fallon had heard Appellant say, “What the fuck happened?”
Fallon begged Appellant to help Katherine. Instead, Appellant got into the driver’s seat of Katherine’s vehicle and drove off. The police and paramedics were called to the scene. However, Katherine died from the gunshot wound to her head.
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Fallon told the police that Appellant had shot Katherine and Jerold. Cedric identified Appellant as the person he saw driving away from the scene.
Later that day, Appellant went to a police station to inquire about Katherine.
Appellant was taken into custody, and he agreed to be interviewed. During the video-taped interview, Appellant denied being at the scene and firing the gun.
Appellant was indicted for the offense of murder. During trial, Fallon testified in detail to the events occurring before, during, and after the shooting. She stated that Appellant was the person who shot Katherine. Fallon testified that, when Katherine was shot, she had seen Appellant aiming the gun at Katherine’s head. She stated that the shots had not been fired rapidly; rather, appreciable time had elapsed between each of the three shots. Fallon testified that Katherine had been standing upright for five seconds trying to get into her vehicle when Appellant shot her.
Cedric also testified. He stated that, although he did not see who had fired the shots, he saw Appellant drive away after the shooting. The investigating police officers testified at trial, and the video-taped interview with Appellant was admitted into evidence. The State further showed, through forensic evidence, that Appellant had tested positive for gun residue on both his hands and his clothing. The defense did not present any evidence.
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At the charge conference, the defense requested that the jury be instructed on the lesser-included offenses of manslaughter and criminally negligent homicide. The trial court granted the request to instruct the jury on the lesser-included offense of manslaughter, but denied the request to instruct the jury on the offense of criminally negligent homicide.
When it returned its verdict, the jury found Appellant guilty of the offense of manslaughter. Appellant pleaded true to an enhancement allegation found in the indictment, indicating that he had previously been convicted of the felony offense of felon in possession of a firearm. The jury assessed Appellant’s punishment at 23 years in prison.
This appeal followed. In one issue, Appellant asserts that the trial court erred in denying his request to instruct the jury on the lesser-included offense of criminally negligent homicide.
Lesser-Included Offense Instruction A. Standard of Review We apply a two-step test to determine whether appellant was entitled to an instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). We first determine whether criminally negligent homicide is a lesser-included offense of
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murder by comparing the statutory elements of the greater offense and any descriptive averments in the indictment with the statutory elements of the potential lesser-included offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). This inquiry is a question of law. Hall, 225 S.W.3d at 535.
If this threshold is met, the second step then requires that we determine whether some evidence in the record would have permitted the jury to rationally find that, if he was guilty, the defendant was guilty only of the lesser-included offense. Id. at 536; Guzman, 188 S.W.3d at 188–89; Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge, but the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Hall, 225 S.W.3d at 536; Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). Although the threshold showing required for an instruction on a lesser-included offense is low, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before a lesser-included offense instruction is warranted. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). B. Analysis
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Here, the State does not dispute 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) (holding that negligent homicide is a lesser-included offense of murder). Thus, as briefed, the dispute in this case centers on whether there is some evidence from which the jury could have rationally found that, if Appellant was guilty, he was guilty only of the lesser offense of criminally negligent homicide. At this step of the analysis, “the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense.” Hall, 225 S.W.3d at 536.
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2011). A person commits manslaughter if he recklessly causes the death of another. See id. § 19.04 (Vernon 2011). A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. Id. § 19.05(a) (Vernon 2011).
The essential difference between murder, manslaughter, and criminally negligent homicide is the culpable mental state required to establish each offense.
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See Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). The Penal Code defines the relevant culpable mental states as follows:
(a) A person acts intentionally, or with intent, with respect to . . . his conduct when it is his conscious objective or desire to . . . cause the result.
(b) A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
(c) A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the . . . result will occur. The risk must be of such a nature and degree that its disregard 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.
(d) A person acts with criminal negligence, or is criminally negligent, with respect to . . . the result of his conduct when he ought to be aware of a substantial and unjustifiable risk . . . 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.
TEX. PENAL CODE ANN. § 6.03(a)–(d) (Vernon 2011).
“The key to criminal negligence is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all” created by his conduct. Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012); Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Evidence showing that a defendant
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did not intend the result does not automatically entitle him to a charge on criminal negligence. See Trujillo, 227 S.W.3d at 168. “Rather, the difference between criminally negligent homicide and manslaughter is the culpable mental state of criminal negligence for the former and recklessness for the latter.” Id. A defendant is not entitled to a charge of criminally negligent homicide if the evidence shows that the defendant’s awareness is such that he perceived the risk his conduct created. Id.
In support of his assertion that the jury should have been instructed on criminally negligent homicide, Appellant asserts as follows in his appellate brief:
There was substantial evidence that the shooting and killing of the complainant was unintentional and that the Appellant was trying to break up the melee that had started in front of him. Ms. Fallon testified that [Jerold] was getting more deadly and more aggressive and she would have pulled a gun on him that night if she had one.
The fight had already lasted 10-15 minutes. Ms. Fallon admitted under cross examination that there was no friction between the complainant and the Appellant and that the Appellant would “not hurt someone he was with.” She further admitted that when the complainant was shot and killed, the Appellant said, “What the fuck happened” and was shaking. . . . There was further evidence that [Appellant’s] eyesight was not good and the lighting conditions were only good.
(Record citations omitted.)
While it may show that he did not intend to kill Katherine, the evidence cited by Appellant does not necessarily show that he failed to perceive the risk of pointing and firing a gun in the direction of four people, standing nearby him. See
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Trujillo v. State, 227 S.W.3d at 168. This is particularly true when the cited evidence is viewed in the context of the other evidence in the record. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (concluding that appellant’s statement he did not intend to hit victim not evidence he is guilty only of lesser included offense, particularly given the other evidence in the record that he intended to kill victim).
The evidence showed that Appellant fired the gun three times with a significant pause between each shot. The second shot hit Jerold in the arm. A sufficient amount of time passed, which led Katherine and Fallon to think that it was safe to stand up. After Katherine stood up, another five seconds passed. Appellant then shot her as she tried to get into her own vehicle in which Appellant sat. Fallon testified that she saw Appellant aim the gun at Katherine’s head.
Even if the evidence could be viewed (1) as showing that Appellant was trying to break up the fight between the two women and Jerold by frightening the group or (2) as showing that Appellant was shooting at Jerold to protect the women, such evidence does not raise a scintilla of evidence that Appellant did not perceive the risk his conduct created. To the contrary, viewing the evidence in such a manner would show that Appellant disregarded the risk, knew the risk of firing a gun, or was choosing to exploit that risk. See Trujillo, 227 S.W.3d at 168 (concluding that brandishing a loaded gun to frighten people indicates awareness
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of a risk posed by a loaded gun); see also Jackson v. State, 248 S.W.3d 369, 372 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that drawing handgun from pocket in response to a threat does not alone raise an inference that appellant was unaware of the risk posed by that conduct; instead, it indicates that the actor was aware of the risk posed by the weapon and was choosing to exploit that risk).
Because Appellant did not present evidence showing that he failed to perceive the risk created by his conduct, and the evidence shows that he did perceive and disregard that risk, the trial court did not err by denying Appellant’s request to instruct the jury on the offense of criminally negligent homicide. See Trujillo, 227 S.W.3d at 168–69. We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).