           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD–1675–10



                          ABRAHAM CAVAZOS, Appellant

                                            v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE EIGHTH COURT OF APPEALS
                         EL PASO COUNTY

             M EYERS, J., delivered the opinion of the Court in which P RICE,
W OMACK, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J.,
filed a concurring opinion. J OHNSON, J., concurred.

                                      OPINION

       A jury found Appellant, Abraham Cavazos, guilty of murder and imposed a

punishment of twenty-eight years’ confinement and a $5,000 fine. Cavazos v. State, 329

S.W.3d 838 (Tex. App.—El Paso 2010). Appellant appealed, claiming that the trial court

erred by refusing his requested jury instruction on the charge of manslaughter. Id. at 840.

The court of appeals held that manslaughter is not a lesser-included offense of murder
                                                                               Cavazos–Page 2

under Texas Penal Code Section 19.02(b)(2) and thus the trial court did not err by failing

to instruct the jury on manslaughter. Cavazos, 329 S.W.3d at 845. The court of appeals

also concluded that, even if manslaughter were a lesser-included offense of the type of

murder charged in this case, there is no evidence in the record that if Appellant is guilty,

he is guilty only of manslaughter. Id. at 846. Appellant filed a petition for discretionary

review asking us to consider whether the court of appeals erred in holding that

manslaughter was not a lesser-included offense of the charged murder and in holding that

the trial court did not err by denying Appellant’s request to instruct the jury on

manslaughter. We agree with Appellant that the court of appeals erred in concluding that

manslaughter was not a lesser-included offense of the charged murder. However,

because there is no evidence that would permit a rational jury to find that, if Appellant is

guilty, he is guilty of only the lesser offense, the court of appeals properly held that the

trial court did not err in denying Appellant’s request for a jury instruction on

manslaughter. We will affirm.

                                           FACTS

       The victim, Rogelio Terrazas, was attending a birthday party for Camille Martinez

in December of 2004. Camille had previously met Appellant at a night club and had

invited him to the party. When Appellant arrived at the party wearing a pink and white

striped shirt, Terrazas and his friends teased Appellant about the color of his shirt and

called him a “faggot.” Terrazas also told Appellant he would show him something pink
                                                                                  Cavazos–Page 3

and exposed his penis. Terrazas then threw a plastic beer cup at Camille and Appellant,

who were sitting together on the couch. Terrazas and Appellant exchanged words, and

Appellant stepped in front of Camille and shot Terrazas twice. Appellant left the party

with his friends, and Terrazas subsequently died at the scene.

       Several days later, Appellant called his friend, Leonor Salais, and told her that he

got drunk at a party and shot a guy who kept provoking him. He also told her that he did

not mean to shoot anyone. Appellant fled to Mexico, but was extradited back to the

United States three years later to stand trial.

       Appellant was charged with murder. The indictment stated, in relevant part, that

“Abraham Cavazos . . . did then and there, with intent to cause serious bodily injury to an

individual, namely, Rogelio Terrazas, commit an act clearly dangerous to human life, to

wit: shooting Rogelio Terrazas with a firearm, that caused the death of the said Rogelio

Terrazas.”

       A jury found Appellant guilty of murder in violation of Texas Penal Code Section

19.02(b)(2).1 The jury assessed punishment at 28 years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice and imposed a fine of $5,000.

Appellant timely appealed the conviction, contending that the trial court erred in denying

his requested jury instruction on the lesser-included offense of manslaughter.


       1
         A person commits murder if he “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)(2). Unless otherwise noted, all future references to sections refer to the Texas
Penal Code.
                                                                                   Cavazos–Page 4

                                    COURT OF APPEALS

       The court of appeals concluded that manslaughter is not a lesser-included offense

of murder under Texas Penal Code Section 19.02(b)(2) and thus the trial court did not err

by denying Appellant’s request to instruct the jury on manslaughter. Cavazos, 329

S.W.3d at 845. The court of appeals further held that, even if manslaughter were a lesser-

included offense of the type of murder charged in this case, there is no evidence in the

record that if Appellant is guilty, he is guilty only of manslaughter. Id. at 846. According

to the court, regardless of whether Appellant intended to kill the victim, evidence shows

that he did intend to cause serious bodily injury to the victim by pointing the gun at him

and pulling the trigger, which is an act clearly dangerous to human life.

       The court of appeals stated that, similar to felony murder under Section

19.02(b)(3), the murder charged in this case does not require a culpable mental state for

causing the victim’s death–it just requires intent to cause serious bodily injury. The court

points out that neither Section 19.02(b)(2) nor the indictment required a culpable mental

state for committing an act clearly dangerous to human life. In contrast, manslaughter

requires proof that Appellant recklessly caused the victim’s death.2 Thus, the elements of



       2
        A person commits manslaughter if he “recklessly causes the death of an individual.”
TEX . PENAL CODE ANN . § 19.04(a). “A person acts recklessly, or is reckless, with respect to
circumstances surrounding his conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist or 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.” Id. § 6.03(c).
                                                                               Cavazos–Page 5

manslaughter are not established by proof of the same or less than all of the elements

required to establish the charged offense, nor does manslaughter differ from the charged

offense only in that a less culpable mental state is sufficient to establish its commission.

See T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1), (3).

       Based on this analysis, the court of appeals overruled Appellant’s issues,

concluding that manslaughter is not a lesser-included offense of murder under Section

19.02(b)(2), and that even if it were, there is no evidence that if Appellant is guilty, he is

guilty of only manslaughter. Cavazos, 329 S.W.3d at 845-46.

                           ARGUMENTS OF THE PARTIES

       Appellant argues that the court of appeals erred when it held that manslaughter

was not a lesser-included offense of the charged murder. Appellant contends that, under

the rationale advanced by the court of appeals, any killing using a deadly weapon can be

murder since no culpable mental state is required. Appellant argues that Section

19.02(b)(2) does, in fact, require a culpable mental state–the intent to cause serious bodily

injury. Appellant states that the court of appeals appears to say that he is guilty of felony

murder with the felony being the discharge of a firearm, but that is not how he was

charged or how the jury was instructed. Appellant asserts that the cases cited by the court

of appeals do not support its holding and that there is no support in Texas law for

eradicating the mens rea requirement from Section 19.02(b)(2).

       Appellant argues that he was entitled to a jury instruction on the charge of
                                                                               Cavazos–Page 6

manslaughter because there was some testimony that he did not intend to kill anyone,

which rebuts or negates one of the crucial elements of murder. Therefore, there was

evidence from which a rational jury could have found him guilty of only the lesser-

included offense.

       The State contends that the plain language of Section 19.02(b)(2) indicates an

intent to dispense with a culpable mental state as it relates to the result of the conduct–

death of an individual. Manslaughter requires a culpable mental state, recklessness, as to

the individual’s death while murder under Section 19.02(b)(2) requires that the defendant

intend to cause serious bodily injury. Because manslaughter requires proof of a culpable

mental state as to the result of the conduct and murder does not, the State argues that

manslaughter is not a lesser-included offense of murder under Section 19.02(b)(2), so it

was not error for the trial court to refuse the instruction.

       The State argues that Appellant mischaracterized the lower court’s opinion. The

State says that the court of appeals did not hold or conclude that Section 19.02(b)(2) lacks

a culpable mental state, rather it said that the mens rea for murder under Section

19.02(b)(2) is intent to cause serious bodily injury. The clearly dangerous act under

Section 19.02(b)(2) is what causes the death, but the actor must intend to cause only the

serious bodily injury, not the resulting death. The State concludes that evidence that

Appellant did not mean to shoot anyone does not indicate that he was guilty only of

manslaughter because his statement does not establish that he recklessly caused the
                                                                                 Cavazos–Page 7

victim’s death.

                               CASELAW AND STATUTES

       Courts apply the Aguilar/Rousseau test to determine whether an instruction on a

lesser-included offense should be given to the jury. Hall v. State, 225 S.W.3d 524, 535-

36 (Tex. Crim. App. 2007); McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App.

2006); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). First, the court

determines if the proof necessary to establish the charged offense also includes the lesser

offense. Hall, 225 S.W.3d at 535-36. If this threshold is met, the court must then

consider whether the evidence shows that if the Appellant is guilty, he is guilty only of

the lesser offense. The first step is a question of law, and it does not depend on the

evidence raised at trial. In fact, it may be performed by the trial judge before trial

commences or, as here, on appeal. In this step, the court compares the elements alleged

in the indictment with the elements of the lesser offense.

       Code of Criminal Procedure Article 37.093 says 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;” or “(3) it differs from the offense

charged only in the respect that a less culpable mental state suffices to establish its

commission.” To determine whether an offense qualifies as a lesser-included offense

under Article 37.09(1), we use the cognate-pleadings approach. Ex parte Watson, 306

       3
       Unless otherwise specified, all future reference to Articles refer to the Texas Code of
Criminal Procedure.
                                                                                Cavazos–Page 8

S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh’g). In Watson, we explained that

       An offense is a lesser-included offense of another offense, under Article
       37.09(1) of the Code of Criminal Procedure, if the indictment for the
       greater-inclusive offense either: 1) alleges all of the elements of the lesser-
       included offense, or 2) alleges elements plus facts (including descriptive
       averments, such as non-statutory manner and means, that are alleged for
       purposes of providing notice) from which all of the elements of the lesser-
       included offense may be deduced. Both statutory elements and any
       descriptive averments alleged in the indictment for the greater-inclusive
       offense should be compared to the statutory elements of the lesser offense.
       If a descriptive averment in the indictment for the greater offense is
       identical to an element of the lesser offense, or if an element of the lesser
       offense may be deduced from a descriptive averment in the indictment for
       the greater-inclusive offense, this should be factored into the lesser-
       included-offense analysis in asking whether all of the elements of the lesser
       offense are contained within the allegations of the greater offense.

Id. at 273 (citations omitted).

       As we pointed out in Watson, the elements of the lesser-included offense do not

have to be pleaded in the indictment if they can be deduced from facts alleged in the

indictment. In this situation, the functional-equivalence concept may be part of the lesser-

included-offense analysis. Using functional-equivalence, the court must “examine the

elements of the lesser offense and decide whether they are functionally the same or less

than those required to prove the charged offense.” McKithan v. State, 324 S.W.3d 582,

588 (Tex. Crim. App. 2010) (citing Farrakhan v. State, 247 S.W.3d 720, 722-23 (Tex.

Crim. App. 2008)).

       An offense may also be a lesser-included offense if it differs from the charged

offense only in the respect that a less culpable mental state is sufficient to establish its
                                                                               Cavazos–Page 9

commission. See T EX. C ODE C RIM. P ROC. A NN. art. 37.09(3).

       If the offense is a lesser-included offense under either Article 37.09(1) or (3), the

court moves to the second step of the Aguilar/Rousseau test and considers 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. Hall, 225 S.W.3d at 536; Mathis v. State, 67 S.W.3d

918, 925 (Tex. Crim. App. 2002). This second step is a question of fact and is based on

the evidence presented at trial. 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. Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985).

                                        ANALYSIS

       Applying the cognate-pleadings approach, we must determine whether the

indictment charging Appellant with murder under Section 19.02(a)(2) alleges all the

elements of manslaughter, or elements and facts from which all the elements of

manslaughter may be deduced.

       The statutory elements of murder under Section 19.02(b)(2), as listed in the

indictment, are

       (1) Abraham Cavazos [Appellant]
       (2) with intent to cause serious bodily injury to an individual, Rogelio
       Terrazas
       (3) committed an act clearly dangerous to human life; shooting Rogelio
       Terrazas with a firearm
       (4) caused the death of Rogelio Terrazas
                                                                            Cavazos–Page 10

We compare these allegations with the elements of manslaughter, which are

       (1) A person [Appellant]
       (2) recklessly
       (3) caused the death of an individual [Rogelio Terrazas]

We then ask the question posed by Article 37.09(1):

       Are the elements of manslaughter established by proof of the same or less
       than all the facts required to establish the commission of murder under
       Section 19.02(b)(2)?

Or the question posed by Article 37.09(3):

       Does manslaughter differ from murder under Section 19.02(b)(2) only in
       the respect that a less culpable mental state suffices to establish its
       commission?

Hall, 225 S.W.3d at 536.

       Because there are allegations in the indictment that are not identical to elements of

the lesser offense, we apply the functional-equivalence test to determine whether

elements of the lesser offense are functionally the same or less than those required to

prove the charged offense. McKithan, 324 S.W.3d at 588. The differences here are the

following: Murder as alleged in the indictment included the intent to cause serious bodily

injury and the commission of an act clearly dangerous to human life (shooting with a

firearm) whereas manslaughter includes recklessness, which is a conscious disregard of a

substantial and unjustifiable risk regarding circumstances or results surrounding the

conduct. The commission of an act clearly dangerous to human life, shooting with a

firearm, is the circumstance surrounding the conduct, which would be the same under
                                                                            Cavazos–Page 11

either murder or manslaughter. This leaves us with the only difference being intent

versus recklessness.

       We disagree with the court of appeals’s contention that the murder charged in this

case does not require a culpable mental state for causing another’s death. Cavazos, 329

S.W.3d at 845. As we have previously held, the specific intent to kill may be inferred

from the use of a deadly weapon. Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim.

App. 1986) (citing Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1984); Bell

v. State, 501 S.W.2d 137, 138 (Tex. Crim. App. 1973)). Here, the indictment specified

that Appellant shot the victim with a deadly weapon, so it can be inferred that he had the

intent to cause the victim’s death. Although the only mens rea specified in Section

19.02(b)(2) is the intent to cause serious bodily injury and the statute does not add a

culpable mental state to the conduct that caused the death, murder under Section

19.02(b)(2) is a “result” crime. See Lugo-Lugo v. State, 650 S.W.2d 72, 82 (Tex. Crim.

App. 1983) (op. on reh’g) (stating that the statute “focuses the mental state of the

individual on the particular result and not on the conduct that causes death”).4 And,

because the definition of recklessness is disregarding a risk that circumstances exist or the

result will occur, the reckless mens rea for manslaughter applies to either the nature of the

conduct or the result of the conduct.



       4
        At the time Lugo-Lugo was handed down, murder by intent to cause serious bodily harm
was section 19.02(a)(2). When definitions were added to 19.02(a), the statute in question
became section 19.02(b)(2), but the substance and wording of the statute remains unchanged.
                                                                           Cavazos–Page 12

       We conclude that causing death while consciously disregarding a risk that death

will occur differs from intending to cause serious bodily injury with a resulting death only

in the respect that a less culpable mental state establishes its commission. See T EX. C ODE

C RIM. P ROC. A NN. art. 37.09(3).

       Next we must examine all the evidence to determine if a lesser-included-offense

instruction on manslaughter was warranted in this case. A defendant is entitled to an

instruction on every issue raised by the evidence. Bell, 639 S.W.2d 442. “Thus,

regardless of the strength or weakness of the evidence, if any evidence raises the issue

that the defendant was guilty only of the lesser offense, then the charge must be given.”

Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). We also explained in

Saunders that there are two ways that evidence may indicate that a defendant is guilty of

only the lesser offense. First, evidence may have been raised that refutes or negates other

evidence establishing the greater offense. Second, the evidence presented regarding the

defendant’s awareness of the risk may be subject to two different interpretations, in which

case the jury should be instructed on both inferences.

       Under the second prong of the Aguilar/Rousseau test, we must consider whether

there was some evidence raised at trial from which a rational jury could acquit Appellant

of the greater offense of murder and convict him of the lesser-included offense of

manslaughter. There must be some affirmative evidence that Appellant did not intend to

cause serious bodily injury when he shot the victim, and must be some affirmative

evidence from which a rational juror could infer that Appellant was aware of but
                                                                              Cavazos–Page 13
consciously disregarded a substantial and unjustifiable risk that death would occur as a

result of his conduct. At this point in the analysis, anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a charge on a lesser offense. Hall,

225 S.W.3d at 536. However, the evidence produced must be sufficient to establish the

lesser-included offense as a “valid, rational alternative” to the charged offense. Id. (citing

Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)). If the evidence raised at

trial casts doubt on the greater offense, a lesser-included offense instruction allows the

jury to vote for a rational alternative. Forest, 989 S.W.2d at 367. While it is true that the

evidence may be weak or contradicted, the evidence must still be directly germane to the

lesser-included offense and must rise to a level that a rational jury could find that if

Appellant is guilty, he is guilty only of the lesser-included offense. Meeting this

threshold requires more than mere speculation–it requires affirmative evidence that both

raises the lesser-included offense and rebuts or negates an element of the greater offense.

       The evidence in question here is Leonor Salais’s testimony that Appellant told her

that he did not mean to shoot anyone. Appellant claims that there is no evidence that he

intentionally pulled the trigger and that Salais’s testimony is evidence that he did not

mean to shoot anyone, which negates the intent element of the greater offense. He says

pulling out a loaded gun in a room full of people is a reckless act and that shooting

directly at a person twice is still reckless as long as the evidence shows no intent to do so.

The trial court concluded that testimony from a phone conversation that took place the

day after the shooting during which Appellant said he did not mean to shoot anyone does
                                                                               Cavazos–Page 14
not indicate that his conduct was reckless. The trial court also noted that there was no

evidence to indicate that this was a reckless discharge of a firearm. We agree.

       There was no evidence directly germane to recklessness. Pulling out a gun,

pointing it at someone, pulling the trigger twice, fleeing the scene (and the country), and

later telling a friend “I didn’t mean to shoot anyone” does not rationally support an

inference that Appellant acted recklessly at the moment he fired the shots. The evidence

here does not support a finding of recklessness and does not rise to level that would

convince a rational jury to find that if Appellant is guilty, he is guilty of only the lesser-

included offense.

       Without additional evidence supporting a finding of recklessness, Salais’s

testimony alone is insufficient to require an instruction on the lesser-included offense of

manslaughter. Because the facts did not raise manslaughter as a valid, rational alternative

to the charged offense, Appellant was not entitled to the requested jury instruction.

       Appellant failed to meet the second prong of the Aguilar/Rousseau test because

there is no evidence that would permit a rational jury to find that, if Appellant is guilty, he

is guilty only of the lesser offense. The court of appeals properly held that the trial court

did not err by denying Appellant’s requested instruction on the lesser-included offense of

manslaughter.

                                       CONCLUSION

       The court of appeals improperly concluded that manslaughter is not a lesser-

included offense of murder under Section 19.02(b)(2) as alleged in the indictment.
                                                                                Cavazos–Page 15
Appellant demonstrated that manslaughter “differs from the offense charged only in the

respect that a less culpable mental state suffices to establish its commission,” and thus

meets the requirements set out in Article 37.09(3) of the Code of Criminal Procedure.

Although Appellant satisfied the first step of the Aguilar/Rousseau test, he was not

entitled to a lesser-included-offense instruction because there was no evidence raised at

trial that would permit a rational jury to find that, if Appellant is guilty, he is guilty only

of manslaughter. The judgment of the court of appeals is affirmed.


                                                            Meyers, J.


Delivered: October 31, 2012

Publish
