PD-0183-15 PD-0183-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/16/2015 8:34:47 PM Accepted 2/18/2015 9:20:34 AM ABEL ACOSTA PDR No. _______ CLERK
________________________________
In the Court of Criminal Appeals Texas
TREYVON RAYMOND WILLIAMS, Appellant
V.
THE STATE OF TEXAS
_______________________________
On Appellant’s Petition for Discretionary Review From the First Court of Appeals, Appeal No. 01-13-00660-CR, On Appeal from the 400th District Court Of Fort Bend County, Texas Cause No. 12-DCR-060402 _______________________________ PETITION FOR DISCRETIONARY REVIEW FOR APPELLANT, TREYVON RAYMOND WILLIAMS
______________________________________
Oral Argument Requested
Michael C. Diaz 20228 Hwy. 6 Manvel, Texas 77578 Telephone: 281-489-2400 Facsimile: 281-489-2401 February 18, 2015 Texas Bar No. 00793616
Attorney for Appellant
i IDENTITY OF JUDGE, PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. Rule 68.4 (a), appellant certifies that the following is a
complete list of the trial court judge, all the parties to the judgment or order
appealed from, and the names and addresses of counsel in the trial and on appeal:
Trial Court Judge: The Honorable Clifford Vacek Presiding Judge 400th District Court Fort Bend County, Texas
Appellant: Treyvon Raymond Williams
Counsel for Appellant: Dallas C. Hughes 7322 Southwest Fwy Ste 1100 Houston, TX 77074
Michael C. Diaz (appeal) 20228 Hwy. 6 Manvel, Texas 77578
Counsel for the State of Texas: John F. Healey Jr.-District Attorney John Hawkins-Trial Thomas Pfeiffer-Trial John Harrity-Appeal Fort Bend County, Texas District Attorney’s Office 1422 Eugene Heimann Cir Richmond, Texas 77469
ii Table of Contents
Identity of judge, parties and counsel………………………………………………ii
Index of Authorities………………………………………………………………...v
Statement Regarding Oral Argument……………………………………………vi
Statement of the Case………………………………………………………...…vii
Procedural History of the Case…………………………………...………………viii
Grounds for Discretionary Review One……………………………………………2
GROUND ONE
DID THE FIRST COURT OF APPEALS ERR IN AFFIRMING APPELLANT’S CONVICTION IN DETERMINING THAT A RATIONAL FACTFINDER COULD HAVE FOUND BEYOND A REASONABLE DOUBT AGAINST APPELLANT ON THE ISSUES OF SELF-DEFENSE AND DEFENSE OF A THIRD PERSON?
Reasons to Grant Review in Support of Ground for Review………………………2
Review is appropriate, under Tex. R. App. P. 66.3(f), because the Court Of Appeals has court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of supervision.
Argument and Authorities In Support Of Ground One………..……………..…2
GROUND TWO
iii DID THE COURT OF APPEALS ERR IN AFFRIMING THE TRIAL COURT IN DENYING APPELLANT’S PROPOSED LESSER INCLUDED JURY INSTRUCTIONS, SPECIFICALLY FELONY DEADLY CONDUCT?
Reasons to Grant Review in Support of Ground for Review………………………8
Review is appropriate, under Tex. R. App. P. 66.3(c), because the Court Of Appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States;
Review is appropriate, under Tex. R. App. P. 66.3(d), because the Court Of Appeal has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance; namely, TEX.CODE CRIM. PROC. art. 37.09.
Argument and Authorities In Support Of Ground
Two………….……………..…...8
Prayer for Relief………………………………………………….…………….11-
Certificate of Compliance.………………………………………………………...13
Certificate of Service…...…………………………………………………………13
Appendix ..………………………………………………………………………..14
iv INDEX OF AUTHORITIES
CASES:
Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012)……………..…9- 10
Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991)………………….3
Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)…………………....10
Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011)………………………..10
STATUTES, CODES AND RULES:
Tex. R. App. P. 9.4(i)…………..………………………………………………... 13
Tex. R. App. P. 9.5…………………………………...…………………………...13
Tex. R. App. P. 66.3(c)…………………………...……………………………...iv, 8
Tex. R. App. P. 66.3(d)…………………………...…………………………...…iv, 8
Tex. R. App. P. 66.3(f)…………………………...……………………………...iii, 2
Tex. R. App. P. 68.4(a)……………………………………………………………..ii
Tex. R. App. P. 68.4(c)…………………………………………………….............vi
Tex. Penal Code §1.07……………………………………………………………...3
Tex. Penal Code §22.05………………………………………………………….8-9
v TEX.CODE CRIM. PROC. art. 37.09…………………………….…………….iv, 9
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Tex. R. App. 68.4(c), counsel respectfully requests oral
argument. Oral argument would be helpful because this case presents an issue that
needs to be resolved by this Court. This appeal involves questions of law,
questions of fact, public policy and procedure which cannot be adequately
addressed, analyzed and evaluated through written communication alone. Oral
argument is essential to emphasize the unique characteristics of these questions and
to address the unforeseeable exigencies arising during the Court’s consideration of
this appeal.
vi STATEMENT OF THE CASE
On May 21, 2012, Treyvon Raymond Williams, appellant, was indicted for
murder. (CR 1 at 16). On June 4, 2013, appellant pled not guilty to the
indictment. (CR 21 at 12). After a jury trial, the jury found appellant guilty of the
charged offense and appellant was assessed a 70 year sentence in the Texas
Department of Criminal Justice-Institutional Division. (CR 1 at 102).
The evidence, when viewed in the light most favorable to the verdict, does
not appear to support a finding that any rational trier of fact, could have found
Appellant guilty. The evidence from the Appellant’s standpoint supports not only
self-defense, but deadly force against another, as well as deadly force to protect a
third party.
The argument for a lesser-included instruction for deadly conduct derives
from Appellant’s own statement.
vii On July 24, 2013, Appellant timely filed his notice of appeal. (CR 1 at 97).
This petition challenges these holdings.
PROCEDURAL HISTORY OF THE CASE
On December 16, 2014, the First Court of Appeals affirmed Appellant’s
conviction. Williams v. State, No. 01-13-00660-CR, slip op. at 1-13, (Tex. App.-
Houston [1st Dist.], December 16, 2014, pet. pending). On December 30, 2014,
Appellant timely filed his motion for rehearing. The First Court of Appeals
overruled and denied Appellant’s motion for rehearing on January 15, 2015. On
February 16, 2015, Appellant timely filed this petition for discretionary review
with the Texas Court of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.
viii PDR No. _______
On Appellant’s Petition for Discretionary Review From the First Court of Appeals, Appeal No. 01-13-00660-CR, On Appeal from the 400th District Court Of Fort Bend County, Texas Cause No. 12-DCR-060402
_______________________________ PETITION FOR DISCRETIONARY REVIEW FOR APPELLANT, TREYVON RAYMOND WILLIAMS
To The Honorable Justices of the Court of Criminal Appeals:
Comes now Appellant, Treyvon Raymond Williams by, and through his
attorney of record, Michael C. Diaz, and files this petition for discretionary review
of the of the December 16, 2014, decision of the First Court of Appeals of Texas in
Williams v. State, No. 01-13-00660-CR, slip op. at 1-13, (Tex. App.-Houston [1st 1 Dist.], December 16, 2014, pet. pending), and would respectfully show the Court
the following:
DID THE FIRST COURT OF APPEALS ERR IN AFFIRMING APPELLANT’S CONVICTION IN DETERMINING THAT A RATIONAL FACTFINDER COULD HAVE FOUND BEYOND A REASONABLE DOUBT AGAINST APPELLANT ON THE ISSUES OF SELF-DEFENSE AND DEFENSE OF A THIRD PERSON?
Reasons to Grant Review in Support of Ground for Review
Review is appropriate, under Tex. R. App. P. 66.3(f), because the Court Of Appeals has whether a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of supervision.
ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW ONE
In its December 16, 2014, opinion, the First Court of Appeals affirmed
Appellant’s conviction in determining that a rational factfinder could have found
beyond a reasonable doubt against appellant on the issues of self-defense and
defense of a third person.
This Court should review this ground and review is appropriate under Tex.
R. App. P. 66.3(f), because the Court of Appeals has so far departed from the
2 accepted and usual course of judicial proceedings, or so far sanctioned such a
departure by a lower court, as to call for an exercise of the Court of Criminal
Appeals' power of supervision.
In its opinion, the First Court of Appeals responded to Appellant’s first point
of error by stating that “the issue of self-defense is a fact issue to be determined by
the jury, which is free to accept or reject the defensive issue. Saxton v. State, 804
S.W.2d 910, 913–14 (Tex. Crim. App. 1991). When a jury finds the defendant
guilty, there is an implicit finding against self-defense. Id. at 914. Although there
is some evidence that appellant reasonably believed that deadly force was
immediately necessary to protect himself or Andromida, other evidence
demonstrates that a rational jury could have been persuaded to the contrary beyond
a reasonable doubt. Notably, no weapon was found on Rico’s person after he was
shot, and Andromida testified that the black object taken from his body “could
have been a shoe for all I know.” Nor did any witness corroborate appellant’s
statement that an unknown person at the scene was carrying an assault rifle.
Furthermore, as the exclusive judge of the facts, the jury was entitled to accept or
reject defensive evidence. Id.”
3 Appellant would respectfully remind this Court that “reasonable belief”
means a belief that would be held by an ordinary and prudent man in the same
circumstances as the actor. Tex. Penal Code §1.07.
The Appellant’s voluntary statement would seem to indicate that he held a
reasonable belief, in that he was told on the day of the shooting that Desiray and
Darian were going to jump them and shoot them. Appellant went over to Angela’s
for a baby shower and heard Desiray at the door asking for him. Desiray asked
appellant where her stuff was and appellant asked Desiray where his stuff was.
Appellant stated that Desiray and Darian had taken his clothes and shoes.
Appellant sees Darian jump out of the car saying, “Are you ready to fight? Are you
ready to fight?” It was at this time he sees Rico drive up with Shamarkcus and two
bright skinned males he does not know. The tall, bright boy was trying to fight
appellant first. Appellant took off his shirt to fight Rico. Desiray ran back to
Angela’s house to fight Andromida. The tall, bright skinned boy looked like he
had an AK-47 because the barrel was skinny at the end. Appellant had a gun he
had bought the day before for protection and he had it in his waistband. Appellant
was scared for his life because he thought the bright skinned male had an AK-47
and that Rico had a gun. Appellant saw Rico running toward Desiray and
Andromida with his hand down like he was holding a gun. Appellant started
shooting and Rico got in the way as he was running. Appellant knows Rico to
4 hang out with the 103’s, a gang, who are known to carry guns. Appellant has seen
Rico with a gun before when they were playing dice. The tall, bright male was
wearing a white mesh shirt with the sleeves cut off and black shorts. Appellant
was also arguing with Darian who called them to come on back. Appellant saw 3
cars in front of Angela’s house, Desiray’s car, Rico’s car and a Charger. (RR 3 at
160, State’s exhibit 58).
In addition, the corroboration as to the Appellant’s reasonable belief came
from several witnesses who testified. The police were called out to a disturbance
at Tameka’s house. (RR 5 at 118). Tameka had asked Desiray to ask Darian to
leave so the tension could die down. (RR 5 at 117). Tameka stated that there was
a lot of tension in her house. (RR 5 at 116). Tameka stated that Desiray became
mad and knocked a table over in the garage and cussed her out. (RR 5 at 117).
Tameka realized that Desiray and Darian took clothes from Tevin’s room after
seeing them enter in Tevin’s room with a garbage bag. (RR 5 at 121). Tameka
also stated that Desiray made threats towards Tevin and the appellant. (RR 5 at
118). In addition, Tameka stated that Desiray was going to get Tevin jumped and
get Rico to fight Tevin. (RR 5 at 114). Tameka knew that something was going to
happen and it was going to escalate a little further. (RR 5 at 118).
5 Andromida testified that Angela, Aiereona, appellant and her went outside
the front door and Desiray was hollering that she needed to speak with appellant.
She further testified that the appellant became mad and said, “I don’t have time for
this. We ain’t trying to cause no problems.” In addition, Andromida observed 6
car loads of people, 20-25 people, mostly all black males, standing in her yard, in
the driveway, and in front of her house in the street. The males were saying that
they came to jump him. Andromida was not going to let it happen unless it was
one on one. Furthermore, it should be noted that Andromida testified Rico and
Darian were coming to help Desiray because Andromida had her on the ground,
winning the fight and Desiray kept hollering for them. Only when Darian got close
to the fight, Andromida heard the gun shots. Andromida saw Rico on the ground
and an unknown person take something black from Rico’s person and go to the
second car behind Desiray and then he came back to where Rico was. (RR 5 at
159-197). Although Andromida could never say what the black item was, it could
be assumed that it was a gun as appellant indicated to the police during his
interview. (RR 3 at 160, State’s exhibit 58).
Angela testified that a bunch of people were coming towards her house as if
they were coming to fight appellant. She also testified that Darian ran towards
Andromida and it was two on Andromida. Angela saw Rico run towards
6 Andromida before he got shot. (RR 5 at 198-222). This corroborates what the
appellant said during his interview. (RR 3 at 160, State’s exhibit 58).
Even the State’s witness, Shamarkcus, testified that when Rico, Chris, Willie
and he arrived at Beechaven, Desiray and Darian were already there in Darian’s
car. (RR 4 at 144). Other people started to show up at Beechaven, including a
green Lexus, with black males. (RR 4 at 144). Shamarkcus testified the appellant
pointed the gun in the direction of the crowd, where Rico, Darian and Desiray were
standing and shot 3 or 4 times, however, at the time of the shooting, Rico was
running over to stop the fight between Andromida and Desiray. (RR 4 at 155,
203). In addition, Shamarkcus testified that Willie Howse was also going toward
and behind Rico. (RR 4 at 202). Again, this testimony corroborates what the
appellant said during his interview with the police. (RR 3 at 160, State’s exhibit
58).
The First Court of Appeals in its opinion, acknowledges that “there is some
evidence that appellant reasonably believed that deadly force was immediately
necessary to protect himself or Andromida.” Furthermore, just because a gun was
never found on Rico’s person, or a gun was never observed at the crime scene, this
alone should not negate Appellant’s reasonable belief. It is undisputed that
Andromida saw Rico on the ground and an unknown person take something black
7 from Rico’s person and go to the second car behind Desiray and then he came back
to where Rico was.
This evidence, when viewed in the light most favorable to the verdict, does
not appear to support a finding that any rational trier of fact, could have found
Appellant guilty. The evidence from the Appellant’s standpoint supports not only
self-defense, but deadly force against another, as well as deadly force to protect a
DID THE COURT OF APPEALS ERR IN AFFRIMING THE TRIAL COURT IN DENYING APPELLANT’S PROPOSED LESSER INCLUDED JURY INSTRUCTIONS, SPECIFICALLY FELONY DEADLY CONDUCT?
Review is appropriate, under Tex. R. App. P. 66.3(c), because the Court Of Appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States;
Review is appropriate, under Tex. R. App. P. 66.3(d), because the Court Of Appeal has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance; namely, TEX.CODE CRIM. PROC. art. 37.09.
ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW TWO
The Court of Appeals incorrectly affirmed the trial court decision in not
giving Appellant a jury instruction on deadly conduct. 8 A person commits the offense of deadly conduct if he knowingly discharges
a firearm at or in the direction of:
(1) one or more individuals;
(2) or a habitation, building or vehicle and is reckless as to whether the
habitation, building or vehicle is occupied. Tex. Penal Code §22.05
We employ a two-pronged test to determine whether a defendant is entitled
to an instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d
377, 382 (Tex. Crim. App. 2012). The first step is a question of law, in which we
compare the elements alleged in the indictment with the elements of the lesser
offense to determine “if the proof necessary to establish the charged offense also
includes the lesser offense.” Id.
The Code of Criminal Procedure states that an offense is a lesser-included
offense if:
(1) it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public interest
suffices to establish its commission;
9 (3) it differs from the offense charged only in the respect that a less culpable
mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise
included offense. TEX.CODE CRIM. PROC. art. 37.09.
The Court of Appeals was well aware that a lesser-included instruction on
felony deadly conduct was requested by Appellant at trial. Furthermore, the Court
acknowledged in its opinion that deadly conduct is a lesser-included of murder. In
addition, the Court also acknowledged that the first prong was satisfied in
determining if deadly conduct was a lesser-included offense. Moreover, the Court
acknowledged in its opinion that, “the second step is a question of fact and is based
on the evidence presented at trial. Cavazos at 383. Thus, a defendant is entitled to
an instruction on a lesser-included offense “if some evidence from any source
raises a fact issue on whether he is guilty of only the lesser, regardless of whether
the evidence is weak, impeached, or contradicted.” Id. “Although this threshold
showing is low, ‘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.” Sweed v. State, 351 S.W.3d
63, 68 (Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543
(Tex. Crim. App. 1997)). The standard may be satisfied “if some evidence refutes
10 or negates other evidence establishing the greater offense or if the evidence
presented is subject to different interpretations.” Id.
Regardless of the source or whether the evidence was weak, impeached or
contradicted, the Appellant stated during the interview that he became scared and
just started shooting and that Rico got in the way as he was running towards
Desiray. (RR 3 at 160, State’s exhibit 58). The argument for a lesser-included
instruction for felony deadly conduct derives from Appellant’s own statement in
that he knowingly just started shooting. This supports that Appellant knowingly
discharged the firearm at or in the direction of one or more individuals.
It is clear from the argument, authorities, and statements from the record that
the Court of Appeals committed error in its judgment. The Court drew an incorrect
conclusion from the facts of this case and failed to make a holding necessary to the
proper disposition of the appeal and its holding was based upon a false premise.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Treyvon Raymond
Williams, prays that this Court grant the Petition for Discretionary Review for
Appellant, order briefing on this cause, and set it for submission at the earliest
possible date. Moreover, upon submission and review of the appellate record and
11 the briefs and arguments of counsel, the Court find reversible error in the
judgments of the First Court of Appeals in appeal number 01-13-00660-CR and of
the 400th District Court of Fort Bend County, Texas, cause number 12-DCR-
060402. In accordance with this Court’s finding of reversible error, appellant also
requests that the Court then issue its opinion and judgment reversing the judgments
of the First Court of Appeals and the 400th District Court of Fort Bend County,
Texas, remand this cause to the 400th District Court of Fort Bend County, Texas,
assess all costs of the appeal against Appellee, and order execution of its judgment
in accordance with its opinion.
Respectfully submitted,
/s/Michael C. Diaz Michael C. Diaz 20228 Hwy. 6 Manvel, Texas 77578 Telephone: 281-489-2400 Facsimile: 281-489-2401 State Bar No. 00793616 Attorney for Appellant
12 CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. 9.4 (i) 3, I hereby certify that the foregoing
document, Appellant’s Petition for Discretionary Review, filed on February 16,
2015, has 3645 words, based upon the word count under Microsoft Word.
/s/ Michael C. Diaz Michael C. Diaz 20228 Hwy. 6 Manvel, Texas 77578 Telephone: 281-489-2400 Facsimile: 281-489-2401 Texas Bar No. 00793616 E-mail: mjoeldiaz@sbcglobal.net Attorney for Appellant
CERTIFICATE OF SERVICE
In accordance with TEX. R. APP. P. 9.5, I, Michael C. Diaz, certify that a
true and correct copy of the foregoing Petition for Discretionary Review has been
served by hand delivery, to the Fort Bend County District Attorney’s Office, 1422
Heimann Circle, 2nd Floor, Richmond, Texas 77469, on this the 16th day of
February, 2015.
13 /s/Michael C. Diaz Michael C. Diaz
APPENDIX
14 15 Opinion issued December 16, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00660-CR ——————————— TREYVON RAYMOND WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 400th Judicial District Court Fort Bend County, Texas Trial Court Case No. 12-DCR-60402
MEMORANDUM OPINION
A jury convicted Treyvon R. Williams of murder and found that he used a
deadly weapon in the commission of the crime. TEX. PENAL CODE ANN. § 19.02.
The jury assessed punishment at 70 years’ confinement. Williams appeals,
contending that in light of evidence showing his actions were legally justified, the evidence was insufficient to support a conviction for murder. He also argues that
the trial court erred by denying his proposed jury instructions on the lesser-
included offenses of manslaughter, criminally negligent homicide, and deadly
conduct.
We conclude that a rational jury could have rejected the justification
defenses. We further conclude that the proposed instructions on lesser-included
offenses were correctly refused because Williams’s evidence was that he acted
intentionally but with legal justification. Accordingly, we affirm.
Background
In the weeks prior to the charged offense, Darian Chaney and Desiray
Johnson stole a variety of items from Tevin Johnson and appellant Treyvon
Williams. Tevin and appellant retaliated by stealing items from Darian and
Desiray.
On the day of the offense, Darian, Desiray, complainant Ron “Rico”
Chaney, and several other people searched for appellant to recover the stolen
items. Darian, Desiray, and Rico went to the home of Angela Jones, and appellant
came out of the house, indicating that he wanted to fight. The group decided there
would be a one-on-one fight in which appellant was allowed to choose his
opponent; he chose to fight Rico. By this time, multiple carloads of people had
arrived at the house, and a crowd had formed around the yard.
2 Neither appellant nor Rico struck each other during the fight, and the two
separated quickly when another fight broke out between Desiray and another
woman, Andromida Norris. Soon, the fight between Desiray and Andromida ended
as Rico walked towards the women to break them up. At the same time, appellant
walked to a green Lexus, retrieved a gun, and fired three or four shots in the
direction of Rico and Desiray. One of the bullets struck Rico in the head, killing
him. Appellant fled in the green Lexus.
Later that night, after discussion with his mother and counseling with her
pastor, appellant returned to the scene to turn himself in to the police. After he was
taken to an interview room by the police and read his Miranda warnings, appellant
gave a video-recorded statement.
In the recorded statement, appellant initially stated that he believed someone
else at the scene had an assault rifle and that he had accidentally shot Rico while
trying to shoot the other individual. Later in the interview, appellant stated that he
shot Rico because he thought Rico intended to hurt Andromida, who was fighting
with Desiray in the yard.
Appellant was charged with murder. Following trial, he was convicted and
sentenced to 70 years’ confinement.
3 Analysis
On appeal, appellant challenges the sufficiency of the evidence supporting
his conviction and the trial court’s refusal to charge the jury on lesser-included
offenses.
I. Sufficiency of the evidence
Appellant argues in his first issue that the evidence at trial was legally
insufficient to support his conviction for murder because a rational factfinder could
not have properly rejected his theories of self-defense.
When evaluating the legal sufficiency of the evidence, we view the evidence
in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We must defer to
the responsibility of the factfinder to fairly resolve conflicts in the testimony, to
weigh evidence, and to draw reasonable inferences from the facts. See Jackson,
443 U.S. at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750. In so doing, we
may not reevaluate the weight and credibility of the record evidence and thereby
substitute our own judgment for that of the factfinder. Williams, 235 S.W.3d at
750. This standard applies equally to circumstantial and direct evidence. Laster v.
State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).
4 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. “[A] person is justified in using force
against another when and to the degree the actor reasonably believes force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Id. § 9.31(a). Deadly force is justified to protect the actor
against another’s use or attempted use of unlawful deadly force and to prevent
another’s imminent commission of murder, kidnapping, sexual assault, or robbery.
Id. § 9.32(a). A person is justified in using deadly force against another to protect a
third person if, under the circumstances the actor reasonably believes them to be,
the actor would be justified in using force against the other under section 9.32 to
protect himself against the unlawful deadly force he reasonably believes to be
threatening the third person, and the actor reasonably believes that his intervention
is immediately necessary to protect the third person. Id. § 9.33.
The defendant bears the initial burden to produce evidence supporting a
justification defense. Zuliani v. State, 97 S.W.3d 589, 594–95 (Tex. Crim. App.
2003). Once the defendant produces some evidence, the State then bears the
burden of persuasion to disprove the raised defense. Id. The burden of persuasion
does not require the State to produce evidence; it requires only that it prove its case
5 beyond a reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d). Thus, to convict a defendant of
murder after he has raised the issue of self-defense, the State is required to prove
the elements of the offense beyond a reasonable doubt and to persuade the jury
beyond a reasonable doubt that the defendant did not kill in self-defense. Zuliani,
97 S.W.3d at 594; McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d).
Appellant contends that the jury could not have found against him beyond a
reasonable doubt on the issues of use of deadly force in defense of himself and in
defense of a third person. See TEX. PENAL CODE ANN. §§ 9.32, 9.33. Appellant
asserts that his own statements that he saw somebody in the crowd with an assault
rifle, coupled with other witness testimony that Rico, Desiray, and Darian were at
the house to “jump” him, justify his acts as deadly force in defense of himself. He
further argues that a jury could not have properly rejected evidence that his use of
deadly force was justified to protect Andromida, who testified that when the shots
were fired, Rico and Darian were moving toward her to help Desiray because she
had her on the ground. Andromida further stated that she saw an unknown person
take something black from Rico’s person after he was shot, which appellant
contends is evidence that Rico had a gun. Appellant also relies on other bystander
6 testimony indicating that Rico was moving toward Andromida when the shots were
fired.
The issue of self-defense is a fact issue to be determined by the jury, which
is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910,
913–14 (Tex. Crim. App. 1991). When a jury finds the defendant guilty, there is an
implicit finding against self-defense. Id. at 914. Although there is some evidence
that appellant reasonably believed that deadly force was immediately necessary to
protect himself or Andromida, other evidence demonstrates that a rational jury
could have been persuaded to the contrary beyond a reasonable doubt. Notably, no
weapon was found on Rico’s person after he was shot, and Andromida testified
that the black object taken from his body “could have been a shoe for all I know.”
Nor did any witness corroborate appellant’s statement that an unknown person at
the scene was carrying an assault rifle. Furthermore, as the exclusive judge of the
facts, the jury was entitled to accept or reject defensive evidence. Id.
Viewing the evidence in the light most favorable to the verdict, a rational
factfinder could have found beyond a reasonable doubt against appellant on the
issues of self-defense and defense of a third person. See Saxton, 804 S.W.2d at
914; Williams v. State, 226 S.W.3d 611, 617 (Tex. App.—Houston [1st Dist.]
2007, no pet.). We overrule appellant’s challenge to the sufficiency of the
evidence.
7 II. Lesser-included offense instructions
In his second issue, appellant asserts that the trial court abused its discretion
and committed reversible error when it refused to instruct the jury on the lesser-
included offenses of manslaughter, criminally negligent homicide, and deadly
We employ a two-pronged test to determine whether a defendant is entitled
to an instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d
377, 382 (Tex. Crim. App. 2012). The first step is a question of law, in which we
compare the elements alleged in the indictment with the elements of the lesser
offense to determine “if the proof necessary to establish the charged offense also
includes the lesser offense.” Id. The Code of Criminal Procedure states that an
offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
TEX. CODE CRIM. PROC. art. 37.09.
8 The second step requires us to consider whether there is some evidence that
would permit a rational jury to find that, if the appellant is guilty, he is guilty only
of the lesser offense. Cavazos, 382 S.W.3d at 383. The second step is a question of
fact and is based on the evidence presented at trial. Id. Thus, a defendant is entitled
to an instruction on a lesser-included offense “if some evidence from any source
raises a fact issue on whether he is guilty of only the lesser, regardless of whether
the evidence is weak, impeached, or contradicted.” Id. “Although this threshold
showing is low, ‘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.’” Sweed v. State, 351 S.W.3d
63, 68 (Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543
(Tex. Crim. App. 1997)). The standard may be satisfied “if some evidence refutes
or negates other evidence establishing the greater offense or if the evidence
Here, the indictment alleged the elements of murder under all three
definitions in the Penal Code:
(b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
9 (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
TEX. PENAL CODE § 19.02(b).
a. Manslaughter and criminally negligent homicide.
Appellant asserts that it was error for the trial court to refuse to instruct the
jury on manslaughter and criminally negligent homicide. Both manslaughter and
criminally negligent homicide are lesser-included offenses of murder. Martinez v.
State, 16 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(manslaughter); Miller v. State, 177 S.W.3d 177, 182 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d) (criminally negligent homicide). But a defendant’s
testimony that he acted in self-defense precludes a finding that there is some
evidence in the record that appellant is guilty only of manslaughter, because a fact
finder cannot find both that a defendant acted recklessly and that he acted in self-
defense. Martinez, 16 S.W.3d at 848; see also Alonzo v. State, 353 S.W.3d 778,
782 (Tex. Crim. App. 2011) (noting precedents in which “[t]he very reason for
denying the manslaughter charges was that the defendants’ evidence was that in
10 committing the homicide they acted intentionally in self-defense, not merely
recklessly”).
The record also lacks evidence that appellant is only guilty of criminally
negligent homicide. That offense requires that a person act with criminal
negligence, which involves “inattentive risk creation, that is, the actor ought to be
aware of the risk surrounding his conduct or the results thereof.” Lugo v. State, 667
S.W.2d 144, 147–48 (Tex. Crim. App. 1984); see also TEX. PENAL CODE § 6.03(d)
(defining criminal negligence); id. § 19.05 (offense of criminally negligent
homicide). Thus, for a defendant to be entitled to a jury charge on criminally
negligent homicide, the record must contain “some evidence” that the defendant
did not intend the resulting death or know that it was reasonably certain to occur.
Miller, 177 S.W.3d at 182. If such evidence is present, the record must contain
evidence showing that the defendant was unaware of the risk. Id. Here, there is no
evidence in the record that appellant did not intend to cause death or that he did not
know it was reasonably certain to occur when he fired three or four bullets into a
crowd. Nor does the record contain evidence that appellant was unaware of that
risk. To the contrary, intentional conduct was implicit in appellant’s self-defense
testimony. Cf. Martinez, 16 S.W.3d at 848.
b. Deadly conduct.
11 Finally, appellant asserts that it was error for the court to refuse to instruct
the jury on the offense of deadly conduct. The offense of deadly conduct can be
committed in two ways. A person commits the misdemeanor version of the offense
if he recklessly engages in conduct that places another in imminent danger of
serious bodily injury. TEX. PENAL CODE § 22.05(a), (e). The felony version of
deadly conduct occurs if a person knowingly discharges a firearm at or in the
direction of one or more individuals. Id. § 22.05(b)(1). Thus, under these facts,
felony deadly conduct satisfies the first prong of the lesser-included test because it
was included in the proof necessary to establish the offense of murder. See TEX.
CODE CRIM. PROC. art. 37.09(1); Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d).
Appellant requested an instruction that described felony deadly conduct. On
appeal, however, he advances no argument to support that instruction. Instead, he
merely asserts, without reference to any supporting legal authority, that “when
Appellant shot the gun at Rico and/or Darian, his act was reckless.” A legal
argument that an instruction on misdemeanor deadly conduct should have been
given does not support reversal on appeal when the request at trial asked for an
instruction on felony deadly conduct. See TEX. R. APP. P. 33.1(a), 38.1(i); Green v.
State, No. 14-07-00827-CR, 2009 WL 1875572, at *10 (Tex. App.—Houston
[14th Dist.] Jun. 30, 2009, pet. ref’d) (mem. op., not designated for publication)
12 (finding briefing waiver when appellant argued for a felony deadly conduct
instruction based on evidence that only related to the misdemeanor offense);
Morris v. State, No. 14-06-00564-CR, 2007 WL 2089290, at *4 (Tex. App.—
Houston [14th Dist.] Jul. 24, 2007, no pet.) (mem. op., not designated for
publication) (determining that request for lesser-included instruction of
misdemeanor deadly conduct was inadequate to preserve error on failure to give
instruction on felony deadly conduct).
* * *
Because appellant has failed to establish that he was entitled to a lesser-
included offense instruction for manslaughter, criminal negligence, or deadly
conduct, we overrule his second issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).