Opinion
NO. 14-16-00084-CR
07-11-2017
JESUS G. HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Cause No. 1425518
MEMORANDUM OPINION
In one issue, appellant Jesus G. Hernandez complains that the trial court denied his request for the trial court to submit a deadly conduct charge to the jury in appellant's murder trial. The jury found appellant guilty and assessed punishment at 45 years' confinement. We affirm.
Many of the facts of this case are disputed, but it is undisputed that the complainant, Terrill, was killed after appellant struck him with his car. Appellant contends that he did not intend to kill Terrill but was trying to get away from a confrontation with Terrill and two other men. The trial court submitted instructions to the jury on murder, the lesser included offense of manslaughter, and self-defense. The trial court also denied defense counsel's request for a jury instruction on the lesser included offense of deadly conduct.
In his sole issue on appeal, appellant contends that the trial court erred in denying his request for a deadly conduct instruction. The State argues that the evidence does not support the submission of such an instruction.
Presuming without deciding that appellant was entitled to the requested instruction, any error was harmless. See Masterson v. State, 155 S.W.3d 167, 171-74 (Tex. Crim. App. 2005) (holding any error in failing to include an instruction on criminally negligent homicide to be harmless when defendant received an instruction on manslaughter but was convicted of murder). The jury was instructed on the lesser included offense of manslaughter but convicted appellant of murder. "[T]he jury's failure to find an intervening [lesser included] offense (one that is between the requested lesser offense and the offense charged) may, in appropriate circumstances, render a failure to submit the requested lesser offense harmless." Id. at 171 (citing Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. App. 1995)). This is because the harm from denying the instruction on the lesser included offense arises from the potential for the jury to convict of the greater offense, even though it has reasonable doubt, to avoid acquitting a person the jury is convinced is a wrongdoer. Id. "The intervening lesser offense is an available compromise, giving the jury the ability to hold the wrongdoer accountable without having to find him guilty of the charged (greater) offense." Id. The existence of an instruction regarding an intervening lesser offense does not automatically foreclose harm—it must be a plausible theory under the evidence. Id. We can conclude the intervening offense instruction renders any error harmless if the jury's rejection of the intervening lesser offense indicates the jury legitimately believed the defendant was guilty of the greater charged offense. Id. at 171-72.
A person commits the offense of deadly conduct "if he recklessly engages in conduct that places another in imminent danger of serious bodily injury." Tex. Pen. Code § 22.05. Similarly, a person commits the offense of manslaughter "if he recklessly causes the death of an individual." Id. § 19.04. Thus, the requisite mental state for manslaughter, as for deadly conduct, is recklessness. Murder, on the other hand, as relevant here, requires a person to "intentionally or knowingly cause[] the death of an individual" or "intend[] to cause serious bodily injury and commit[] an act clearly dangerous to human life that causes the death of an individual." Id. § 19.02(b)(1)-(2). Thus, a person must act intentionally or knowingly to commit murder. Id.
The fact that the jury convicted appellant of murder, despite the availability of manslaughter, indicates that the jury did, in fact, believe that appellant possessed the specific intent required for the charged offense. If the jury believed appellant did not act intentionally or knowingly, as appellant claimed, the jury could have acquitted appellant of murder and convicted him of manslaughter. See Guzman v. State, 188 S.W.3d 185, 194 & n.20 (Tex. Crim. App. 2006) (holding defendant was not entitled to an instruction on the lesser included offense of deadly conduct and noting that any error would be harmless in light of the jury's rejection of the intervening lesser included offense of aggravated assault). Because any error in the trial court's refusal to submit a deadly conduct instruction was harmless, we overrule appellant's sole issue on appeal.
We affirm the judgment of the trial court.
/s/ Martha Hill Jamison
Justice Panel consists of Justices Christopher, Jamison, and Donovan. Do not publish — TEX. R. APP. P. 47.2(b).