Opinion
No. 04-07-00066-CR
Delivered and Filed: February 27, 2008. DO NOT PUBLISH
Appeal from the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CR-6317 Honorable Maria Teresa Herr, Judge Presiding.
Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
AFFIRMED Jesus Trevino was found guilty of murder and sentenced to sixty-five years imprisonment. On appeal, he argues that the trial court erred in denying his requested jury charge on the lesser-included offense of negligent homicide. We affirm.
Background
On the night of July 10, 2005, Bonnie Sanchez was babysitting for her cousin, Anna Rodriguez, and her sister, Stephanie Sanchez. Bonnie had been "hanging out" in Anna Rodriguez's apartment with a group of friends that included several males when she received a phone call from Delia Saucedo, the aunt of her sister's children. Delia asked Bonnie where her sister was and who was with her. Bonnie replied that her sister, Stephanie, was with her friends. Delia then said she knew there were "guys there" and that she and her friends were coming over. Bonnie replied that Delia did not know where her cousin, Anna, lived. Delia said that she did. Bonnie then called her sister, Stephanie, and told her about the conversation with Delia. Stephanie and her cousin, Anna, returned home to find Bonnie and her many friends in the apartment. Unaware that Bonnie had planned to have friends over while babysitting and not being acquainted with any of these friends, Anna became angry and told Bonnie's friends to leave. Although Bonnie's friends left Anna's apartment, they remained outside on her porch. Anna then went outside to wait for Delia, who was supposedly coming over "to kick ass." After a while, Anna, believing that Delia was not coming over after all, went back inside her apartment with Stephanie. Bonnie and her friends remained outside. The defendant, Jesus Trevino, the father of Anna Rodriguez's child, then appeared, having been told by Delia that there were men at Anna's apartment. He was carrying a gun. When he approached Bonnie and her friends, he started demanding to know which of the guys was there for his girlfriend, Anna. He then walked inside the apartment, and, according to Anna Rodriguez, started "talking shit" because "he thought there was a guy there with [Anna] or something." Anna yelled at him to leave. Trevino then went back outside and began waving his gun, yelling "Who was messing with my chick?" At this point, Bonnie's male friends had begun walking away from the apartment, and when they saw Trevino waving his gun around and yelling, they started running. One of these friends running away was Angel Rodriguez. Angel had been "hanging out" with Bonnie at Anna's apartment and was also part of the group "hanging out" on Anna's porch. Angel Rodriguez and his brother, Joe Rodriguez, who had been deaf since birth, lived close to Anna Rodriguez. Thus, Joe Rodriguez did not have far to walk when he went over to Anna's apartment that night to ask if his brother, Angel, or any of Angel's friends wanted any of the pancakes he had made. When Trevino arrived at Anna's apartment, began yelling, and then went inside Anna's apartment, Angel Rodriguez, his brother, Joe, and a friend began walking in a different direction from the others. Angel then saw Trevino come back outside and shoot at the people walking in the other direction. Angel began running and motioned to his deaf brother, Joe, to run also. Angel kept looking over his back to see what was happening:Q: And as you were running away, how do you know what [Trevino] was doing?
A: Kept on looking back, watching over my back.
Q: And so you'd, like, check?
A: Yeah. I was checking, you know. I was checking.
Q: And during one of those times that you were checking, what did you see?
A: [Trevino] started pointing [the gun] at us.
Q: When you saw that, what else did you see?
A: I saw him shoot at us. I was looking back, you know. I wasn't going to get shot, you know. My brother, he was deaf, you know. I couldn't tell him to turn around or something. He was trying to get away, looking in front. When [Trevino] shot at us, he hit [Joe] in the back of the neck.On cross-examination, Angel Rodriguez confirmed that Trevino had seen his group and shot in their direction:
After we took off running, [Trevino] was shooting at some of the people while we were leaving. After he finished shooting at them a few times, he turned around and pointed [the gun] at us and shot at us.After shooting Joe Rodriguez, Trevino then got into a car driven by Delia Saucedo and left the scene. Joe Rodriguez died from the gunshot wound. Trevino was later arrested for his murder.
Discussion
At trial, Trevino requested a jury charge on the lesser-included offenses of deadly conduct, criminally negligent homicide, and manslaughter. He later withdrew his request for deadly conduct. The trial court granted his request for a charge on manslaughter, but denied his request for criminally negligent homicide. In his sole issue, Trevino argues that the trial court erred in denying his request for a jury charge on criminally negligent homicide. We disagree. In considering whether a charge on a lesser-included offense should be given, we apply a two-step test. Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006); Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). We first consider whether the offense is a lesser-included offense of the charged offense. Guzman, 188 S.W.3d at 188; Hayward, 158 S.W.3d at 478. We then consider whether the record contains some evidence that would permit a rational jury to find that, if the defendant was guilty, he was guilty only of the lesser offense. Guzman, 188 S.W.3d at 188; Hayward, 158 S.W.3d at 478. Here, the State agrees that criminally negligent homicide is a lesser-included offense of murder. Therefore, the first part of the test is met. In applying the second step of the test, we consider whether there is some evidence that would permit a rational jury to find that, if Trevino was guilty, he was guilty only of criminally negligent homicide. A person acts with criminal negligence when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). 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. Id. For a defendant to be entitled to a charge on criminally negligent homicide, there must be some evidence in the record that the defendant did not intend the resulting death, or know that it was reasonably certain to occur. Burnett v. State, 865 S.W.2d 223, 229 (Tex.App.-San Antonio 1993, pet. ref'd); De Los Santos v. State, No. 04-05-00459-CR, 2006 WL 2352545, at *2 (Tex.App.-San Antonio 2006, no pet.) (not designated for publication). "If such evidence is present, the record must then be examined to see if it indicates whether the defendant was aware or unaware of the risk that his conduct could result in the unintentional killing of the deceased." Burnett, 865 S.W.2d at 229 (emphasis in original); see also De Los Santos, 2006 WL 2352545, at *2. A defendant is entitled to a charge on criminally negligent homicide only if he is unaware that his conduct created a substantial and unjustifiable risk of injury or death. Mendieta v. State, 706 S.W.2d 651, 653 (Tex.Crim.App. 1986); De Los Santos, 2006 WL 2352545, at *2. Here, Trevino claims that he was entitled to a charge on criminally negligent homicide because Bonnie Sanchez testified that he was not looking towards Joe Rodriguez at the instant Trevino fired the pistol. According to Trevino, discharging a firearm in a direction that he was not looking could be negligence, not intentional murder. For support, Trevino points to Bonnie Sanchez's testimony:Q: Was anybody trying to hurt [Trevino]?
A: No.
Q: What did he do after he shot at those boys?
A: Well, I think he shot like two times. The first time he shot, he shot at them. The second time he shot, like — well, I saw his arm like he just went like that. You know what I mean? He just pointed but he wasn't looking. He just shot, but I don't think he meant to shoot. Do you know what I mean?
Q: Did you see the shot or did you hear the shot?
A: I heard it, and I saw it.
Q: Did you see it when it actually happened or did you see it afterwards?A: When he had pointed, I saw his — like I saw his arm pointing that way. And the same time I was looking at his arm. I was looking at his face. He was facing this way, right? And his arm was that way. And I was on the side of him. And when he shot, he wasn't looking. Trevino also relies on the following testimony by Stephanie Sanchez:
Q: And the first [gunshot] you heard was in the direction of people in the front yard?
A: Yeah, but going towards that way. Everybody had already — like those guys had already ran like the ones that were inside.
Q: And the second [gunshot] was in a different direction?
A: Uh-huh.
Q: Was the second one in the direction of where the boy got shot?
A: Well, I heard it going that way and he was swinging it, so . . .
Q: But it — was that the same direction as where the boy . . .
A: Well, because I heard it over here. Like, you know, it sounded loud. I don't know if it was towards that way but it was on this side. He was like this, so I really don't, you know, . . .Recognizing that an allegation of accidental discharge of a gun does not necessarily raise the issue of criminally negligent homicide, see Thomas v. State, 699 S.W.2d 845, 850 (Tex.Crim.App. 1985), Trevino specifically states in his brief that "[t]his is not an `accidental discharge' case." Instead, Trevino argues that because there was evidence that he "was not looking in the direction that he discharged the weapon, and that he discharged the weapon away from the `crowd' that he had fired the first shot past," he was entitled to a charge on criminally negligent homicide. We disagree. Bonnie Sanchez's testimony that Trevino was not looking in the direction he was pointing when he fired the second shot is not evidence that Trevino was unaware that his conduct created a substantial and unjustifiable risk of injury or death. See Mendieta, 706 S.W.2d at 653; De Los Santos, 2006 WL 2352545, at *2. Further, Stephanie's Sanchez's testimony that Trevino "was swinging" the gun is not evidence that Trevino was unaware that his conduct created a substantial and unjustifiable risk of injury or death. It is undisputed that immediately before Trevino fired the second shot that killed Joe Rodriguez, he pointed and discharged his weapon into a crowd of people. He, therefore, knew the gun was loaded and operational. Further, there is undisputed testimony from Angel Rodriguez that Trevino pointed his gun at Angel and then discharged his pistol. See Thomas, 699 S.W.2d at 850 ("Evidence that a defendant knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another, indicates a person who is aware of a risk created by that conduct and disregards the risk."). Moreover, even if the trial court had erred in refusing to submit a charge on criminally negligent homicide, any such error would be harmless. Because Trevino preserved error by objecting to the charge, we must reverse as long as the error is not harmless. Druery v. State, 225 S.W.3d 491, 504 (Tex.Crim.App.) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)), cert. denied, 128 S. Ct. 627 (2007). The court of criminal appeals has interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal. Id. (citing Almanza, 686 S.W.2d at 171). The court of criminal appeals has also held that a jury's failure to find a defendant guilty of an intervening lesser-included offense, i.e. an offense between the requested lesser-included offense and the charged offense, may render the trial court's failure to give the requested charge harmless. Masterson v. State, 155 S.W.3d 167, 171 (Tex.Crim.App. 2005), cert. denied, 546 U.S. 1169 (2006). This is so because the harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer. 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. While the existence of an instruction regarding an intervening lesser offense (such as manslaughter interposed between murder and criminally negligent homicide) does not automatically foreclose harm — because in some circumstances that intervening lesser offense may be the least plausible theory under the evidence — a court can conclude that the intervening offense instruction renders the error harmless if the jury's rejection of that offense indicates that the jury legitimately believed that the defendant was guilty of the greater, charged offense. Id. (citations omitted). Thus, in Saunders v. State, 913 S.W.2d 564, 573-74 (Tex.Crim.App. 1995), the court of criminal appeals held that the failure of the trial court to charge the jury on criminally negligent homicide was harmless. In Saunders, the trial court denied the defendant's request to include in the jury charge an instruction on criminally negligent homicide but did include an instruction on a reckless, killing — manslaughter. Id. at 565-66. In holding that any error committed by the trial court was harmless, the court of criminal appeals reasoned that because there was significant evidence in the record that the defendant was aware of the risk of death, manslaughter was a realistic option for the jury. Id. at 573-74. "Consequently, the jury's conviction of the defendant for murder, despite the availability of involuntary manslaughter, indicated that the jury did in fact believe that the defendant harbored the specific intent required for the charged offense [of murder]." Masterson, 155 S.W.3d at 172 (discussing Saunders). Likewise, in Masterson v. State, the trial court denied an instruction on criminally negligent homicide but did instruct the jury on manslaughter. Id. And, like the court in Saunders, the court of criminal appeals in Masterson found significant evidence in the record of the appellant's awareness of the risk of death. Id. Thus, the court reasoned that if the jury had believed that the appellant had performed a "sleeper hold" as a sexual maneuver and did not intend to kill the victim, it "could easily have given effect to that belief by acquitting appellant of capital murder and convicting him of manslaughter." Id. "That the jury chose not to do so shows that it did not believe appellant's story." Id. Therefore, the court of criminal appeals held that any error was harmless. Here, like in both Saunders and Masterson, the jury was charged with murder and the lesser-included offense of manslaughter, but was not charged with the offense of criminally negligent homicide. The jury then found Trevino guilty of murder. And, as in both Saunders and Masterson, there is significant evidence in the record of Trevino's awareness of the risk of death. Immediately before shooting the victim, Trevino had discharged the weapon into a crowd of people and was, therefore, aware that the weapon was loaded and in working order. Thus, manslaughter was a realistic option for the jury. That the jury convicted Trevino for murder despite the availability of manslaughter shows that it believed that Trevino possessed the specific intent required for murder. Therefore, any error by the trial court was harmless. See Levan v. State, 93 S.W.3d 581, 586-87 (Tex.App.-Eastland 2002, pet. ref'd) (holding that where jury was charged with both murder and manslaughter, omission of the charge on criminally negligent homicide was harmless).