Opinion
NO. 01-16-00712-CR
11-14-2017
ALAIN PAREDES-RUIZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court Harris County, Texas
Trial Court Case No. 1405821
MEMORANDUM OPINION
A jury convicted appellant, Alain Paredes-Ruiz, of felony murder and assessed his punishment at thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant argues on appeal that the trial court erred by denying his requests for jury instructions on self-defense and on the lesser-included offense of manslaughter. Because appellant was entitled to an instruction on the lesser-included offense of manslaughter, we reverse and remand to the trial court for further proceedings.
Appellant would not be entitled to a greater remedy if we resolved his challenge to the trial court's denial of his request for a self-defense instruction, therefore, we do not need to decide that issue. See TEX. R. APP. P. 47.1.
Background
The complainant, his wife, and a small group of friends went to an after-hours club in Houston. While at the club, the complainant attempted to enter the ladies' room several times. Appellant was speaking with the club owner when the owner reprimanded the complainant for continuing to go into the ladies' room. Appellant confronted the complainant because he thought he was being disrespectful to the owner and the two men argued. After appellant pushed the complainant, the club's bouncer intervened. When the bouncer asked the complainant to leave, the complainant became combative and was forcibly ejected from the club. The rest of the complainant's group joined him outside. After arguing with the security guard for a few minutes, the complaint and his friends started to walk to their car.
At this point, appellant decided to leave the club as well. As he was walking out the door, another club patron who appellant was acquainted with told appellant that the complainant and his friends were going to "do something" to appellant and he handed appellant a small handgun. Appellant testified that he took the gun from his acquaintance because he was scared of the complainant.
When he got to his car, appellant noticed the complainant and one of his friends talking nearby. Appellant pointed the gun at the complainant and told him, "Don't come near, don't come near. If you come near, I will shoot." The complainant charged at appellant and appellant told him again, "Don't get near, don't get near, I do not want any problems. . . I have a weapon. If you come close -- if you come close, I will shoot you."
Appellant and the complainant began to argue and after he saw that the complainant was getting really upset, appellant got into his car to leave. According to appellant, the complainant and his friend stepped in front of his car as appellant was attempting to drive away. Appellant then got the weapon and stepped out of his car and told the complainant that he did not want any trouble. He also pointed the gun in the air and pulled the trigger because he "wanted to shoot just to scar[e] the young man." The gun did not discharge.
At that point, another of appellant's acquaintances came up to his car, got into the passenger seat, and told appellant that they should leave. Appellant got back in the car and put the gun down next to him on the car's center console. According to appellant, the complainant walked around from the front of appellant's car to the passenger side.
Appellant testified that he saw the complainant coming into the car through the open passenger-side window and reaching for the gun. Appellant grabbed the gun, pointed it at the complainant, and then "heard [a] 'boom,'" and "felt a heavy pressure." According to appellant, he put the gun down and immediately drove away because he was frightened.
Appellant denied pulling the trigger or intending to kill anyone, and he testified that the gun discharged on its own. He also testified that he did "not know anything about weapons," and when asked if he saw the complainant's hands when the complainant dove into the car, appellant testified that he was looking forward and that everything happened very quickly.
The complainant's wife and one of his friends testified that appellant pointed a gun at the complainant in the club's parking lot as appellant was walking to his car. They also testified that after appellant stopped his car, the complainant walked up to the passenger side and argued with appellant through the open window. The complainant's wife also testified that the complainant knocked on appellant's car, reached his hand inside the passenger side window, and swung at appellant. One of the security guards at the nightclub also testified that he saw the complainant walk up to the passenger side of appellant's vehicle and it looked like he was trying to hit appellant.
Jury Charge on Lesser-Included Offense of Manslaughter
Appellant argues that the trial court erred by denying his request for an instruction on the lesser-included offense of manslaughter.
A. Standard of Review and Applicable Law
We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382-83 (Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011). The first step is a question of law in which the court compares 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." Cavazos, 382 S.W.3d at 382.
"The second step of the lesser-included-offense analysis is to determine if there is some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense." Sweed, 351 S.W.3d at 68. Because this fact question depends on the evidence presented at trial, we review the entire record in making this determination on appeal. See id.; Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005). Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a jury instruction on a lesser-included offense. Cavazos, 382 S.W.3d at 385. "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, 351 S.W.3d at 68 (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). "[T]he standard may be satisfied if some evidence refutes or negates other evidence establishing the greater offense or if the evidence presented is subject to different interpretations." Id.
A person commits murder, as alleged in the indictment, if he intentionally or knowingly causes the death of an individual, or if he intends to cause serious bodily injury and intentionally or knowingly commits an act clearly dangerous to human life that causes the death of an individual. See TEX. PENAL CODE ANN. § 19.02(b)(1)-(2) (West 2011).
A person commits the offense of manslaughter if he recklessly causes the death of an individual. See TEX. PENAL CODE ANN. § 19.04(a) (West 2011). "Manslaughter is a result-oriented offense: the mental state [of recklessness] must relate to the results of the defendant's actions." Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013). A person acts recklessly 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. TEX. PENAL CODE ANN. § 6.03(c) (West 2011).
In determining whether the evidence supports a finding of recklessness, a single item of evidence "cannot be plucked out of the record and examined in a vacuum." Gahagan v. State, 242 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (quoting Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). "Instead, the entire record must be examined to determine whether there was more than a scintilla of affirmative evidence to support a requested instruction." Knott v. State, 513 S.W.3d 779, 796 (Tex. App.—El Paso 2017, pet. ref'd). If there is evidence that raises the issue of a lesser-included offense, "a jury charge must be given based on that evidence, 'whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted.'" Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)).
B. Analysis
Manslaughter is a lesser-included offense of murder because manslaughter differs from murder only in that it requires a less culpable mental state to establish its commission—recklessness—as opposed to intent. See Gahagan, 242 S.W.3d at 89; see also TEX. CODE CRIM. PROC. ANN. art. 37.09(3) (West 2006). The State does not dispute that manslaughter is a lesser-included offense in this case.
We must now determine whether there is some evidence from which a rational jury could acquit appellant of murder while convicting him of the lesser-included offense of manslaughter. See Sweed, 351 S.W.3d at 68. In other words, there must be some evidence from which a jury could find that appellant acted with recklessness, not with intent, in causing the death of the complainant.
The record reflects that appellant brandished the handgun in the club's parking lot on two separate occasions before the complainant was shot. Specifically, appellant testified that when he first got to his car after leaving the club, he saw the complainant standing nearby, and he pointed the gun at the complainant and threatened to shoot the complainant. Moments later, appellant attempted to fire the gun in the air in order to scare the complainant.
Appellant testified that when he got into his car and attempted to leave, the complainant and his companions blocked his car. He then saw the complainant pushing into his car through the open passenger-side window and, according to appellant, reaching for the gun which he had placed on the front seat console. Appellant grabbed the gun first, pointed it at the complainant, and then "heard [a] 'boom,'" and "felt a heavy pressure." Appellant testified that he did not know anything about weapons, and he denied intending to kill anyone or even pulling the trigger when the complainant was shot.
The other witnesses, including the complainant's wife, also testified that the complainant was arguing with appellant through the car's open passenger-side window and that the complainant reached inside the car, according to these witnesses, and took a swing at appellant.
Relying primarily upon the Court of Criminal Appeals' opinion in Hunter v. State, 647 S.W.2d 657 (Tex. Crim. App. 1983) and this court's opinion in Gilbert v. State, 196 S.W.3d 163 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd), the State argues that there is no affirmative evidence that would permit a jury rationally to find only that appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that the complainant would die as a result of his conduct because there is no evidence that appellant pulled the gun's trigger and discharged the weapon, killing the complainant. See Cavazos, 382 S.W.3d at 385.
In Hunter, the defendant testified that he swung his arm toward the back seat, aiming a gun in another person's general vicinity, when the gun went off. The defendant claimed that he was only trying to scare her, and did not intend to kill her. He also testified that he had never fired the gun before, did not know if it was cocked, did not pull the trigger, did not point the gun at the young woman, and was "looking straight ahead" at the time. Id. at 658. The defendant did not know why the gun fired. The court held that these facts failed to raise the issue of involuntary manslaughter because there was no evidence that the defendant was aware of, but consciously disregarded, a substantial risk created by his conduct. Id. at 659. Hunter addresses the difference between criminal negligence and involuntary manslaughter. Waving a gun, which, according to Hunter, he did not know was loaded, in the direction of another person raised the issue of criminal negligence, rather than involuntary manslaughter. This is so because the evidence showed that the defendant disregarded a substantial risk of harm that "he ought to be aware of" rather than that he "consciously disregarded" such a risk. See TEX. PENAL CODE ANN. § 6.03(c)-(d) (West 2011) (emphasis added). That is the difference between criminal negligence and involuntary manslaughter, the difference between doing something you should know is dangerous and doing something you know is dangerous. See id. (emphasis added). In the present case, we have to examine the evidence before us to ascertain whether or not there is evidence which, if accepted by the jury, would support a finding that appellant acted recklessly, with conscious disregard of the risk of the harm, or intentionally, with a conscious desire to cause the harm.
The State argues that there is no evidence that appellant consciously disregarded a risk of harm because he said he was not familiar with that firearm and did not know that the weapon was loaded. However, appellant testified that, during his initial confrontation with the complainant, he waved the gun in the air and tried to shoot it in order to scare off the complainant and his companions. The fact that he thought the gun would scare the complainant by the threat of violence demonstrates that he was aware of the possibility of harm he created by his use of a deadly weapon. "In fact, appellant's testimony that he wanted the gun to 'frighten the men off' shows that he either disregarded the risk or knew the risk of having a loaded gun." Trujillo, 227 S.W.3d at 168.
A firearm is a deadly weapon per se. Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985); TEX. PENAL CODE ANN. § 1.07(17)(A) (West Supp. 2016).
The State also relies on Gilbert v. State, 196 S.W.3d 163 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). In Gilbert, the defendant testified that he had a gun in his hand when someone threw her body into his arm, causing him to fall backwards. Id. at 165. The defendant testified that he tried to brace himself, and that the gun accidentally fired, killing the complainant. Id. He also testified that he never cocked the gun or raised it to point it at the complainant and he never intended to hurt or to shoot the complainant. Id. This court held that the defendant was not entitled to a jury instruction on the lesser-included offense of manslaughter because his testimony only established that the gun involuntarily discharged after the defendant was bumped, and it did not show that he was reckless in discharging the gun. Id. at 165-66.
The facts in Gilbert were raised "only to establish the defensive issue of accident—that his conduct was involuntary because he was bumped." Id. at 165. There is no defense of accident under the Texas Penal Code. The inquiry is whether or not the defendant's actions were voluntary or involuntary. In the present case, the testimony shows that while appellant may have been rushed and frightened, there is no testimony that his picking up the weapon and pointing it at the complainant as the complainant lunged through the passenger window was anything but a voluntary act.
"Under the current Penal Code, however, there is no 'defense of accident.' Now, the no-voluntary-conduct aspect of that former defense is addressed by Penal Code section 6.0l (a), which provides that 'a person commits an offense only if he voluntarily engages in conduct.'" Rogers v. State, 105 S.W.3d 630, 637 (Tex. Crim. App. 2003).
The operative word under Section 6.01(a), for present purposes, is 'include.' Both the Model Penal Code comments and the Practice Commentary to the 1974 Texas Penal Code stress that the 'voluntary act' requirement does not necessarily go to the ultimate act (e.g., pulling the trigger), but only that criminal responsibility for the harm must 'include an act' that is voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer).Rogers v. State, 105 S.W. 630, 638 (Tex. Crim. App. 2003). A jury could find that appellant voluntarily committed a reckless act, pointing a deadly weapon at another person, which resulted in the death of that person. That is the definition of involuntary manslaughter. "Thus, courts have typically found that a manslaughter instruction was required based on some evidence that the gun discharged accidentally or that the defendant only intended to frighten the complainant." Arnold v. State, 234 S.W. 3d 664, 672 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
The State relies upon appellant's testimony that, although he was holding the handgun, he did not pull the trigger when the complainant was fatally shot. However, a defendant's testimony that he did not pull the trigger does not necessarily preclude there being some evidence from which a rational jury could determine that the defendant acted recklessly in the course of an allegedly accidental shooting. See generally Schoelman v. State, 644 S.W.2d 727, 733-34 (Tex. Crim. App. 1983) (holding trial court erred by denying request for jury instruction on involuntary manslaughter in case in which defendant denied pulling trigger and testified that gun only discharged when complainant struck it). We further note that the act of merely pointing a gun at someone is considered reckless for purposes of deadly conduct, which is also a lesser-included offense of murder. See TEX. PENAL CODE ANN. § 22.05(a), (c) (West 2011) (stating "[r]ecklessness and danger are presumed [for purposes of deadly conduct under section 22.05(a)] if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded"); see also Ortiz v. State, 144 S.W.3d 225, 233-34 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (deadly conduct by recklessly or knowingly discharging firearm in direction of individual is lesser-included offense of intentional murder by means of discharging firearm).
"At this point in the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a charge of a lesser offense." Cavazos, 382 S.W. 3d at 385. After reviewing the record in its entirety, we conclude that there is more than a scintilla of affirmative evidence supporting appellant's requested instruction on the lesser-included offense of manslaughter. See Knott, 513 S.W.3d at 796. Based on the evidence presented, a jury could rationally find that appellant acted recklessly in causing the complainant's death and, therefore, a rational jury could have concluded that he committed manslaughter, not murder. Therefore, the trial court erred by denying appellant's request for a jury instruction on the lesser-included offense of manslaughter.
"The erroneous refusal to give a requested instruction on a lesser-included offense is charge error subject to an Almanza harm analysis." Nangurai v. State, 507 S.W.3d 229, 234 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on rehearing). When, as here, error has been properly preserved, we will reverse if the error resulted in some harm to the defendant. Nangurai, 507 S.W.3d at 234. If the trial court's refusal to submit an instruction on the lesser-included offense "left the jury with the sole option either to convict the defendant of the charged offense or to acquit him, some harm exists." Id. Because that is precisely what happened in this case, we hold that the trial court's erroneous denial of appellant's request for an instruction on the lesser-included offense of manslaughter was harmful to appellant. Id.; see also Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005).
We sustain appellant's issue.
Conclusion
Because appellant was entitled to an instruction on the lesser-included offense of manslaughter, we reverse and remand to the trial court for further proceedings.
Russell Lloyd
Justice Panel consists of Justices Higley, Massengale and Lloyd.
Do Not Publish. TEX. R. APP. P. 47.2(b).