                                  NO. 07-06-0400-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  OCTOBER 24, 2008

                         ______________________________

                      JULIO ANTONIO NEVAREZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 51,579-E; HONORABLE ABE LOPEZ, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant Julio Antonio Nevarez appeals from his jury conviction of the offense of

murder and his resulting sentence of imprisonment for a term of twenty-five years in the

Institutional Division of the Texas Department of Criminal Justice. We affirm.
                                    Factual Background


       Appellant’s indictment charged that he intentionally and knowingly caused the death

of Edgar Alex Avila, by stabbing him with a knife.1 Following his plea of not guilty, the

matter proceeded to trial by jury. At trial, the State’s evidence showed that during the early

morning hours on a night in May 2005, bar patrons were leaving a local bar. As several

individuals approached the parking lot, the victim and a friend of appellant began fighting.

A two-minute altercation ensued and after the victim and the friend were separated by a

security guard, appellant came from behind the victim and stabbed him in the neck with a

knife. The victim later died from this wound.


       Appellant testified at trial, claiming self-defense and “accident.” At the close of the

evidence, appellant submitted proposed jury instructions on self-defense and on

manslaughter as a lesser-included offense. The court included the requested instruction

on self-defense, but denied the manslaughter charge. The jury returned a verdict of guilty

as alleged in the indictment and assessed punishment against appellant at confinement

for a term of twenty-five years. This appeal followed.


                                          Analysis


       By his sole issue on appeal, appellant contends the trial court abused its discretion

by failing to instruct the jury on the lesser-included offense of manslaughter, thereby



       1
        See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). This is a second degree
felony punishable by imprisonment for life or for any term of not more than 99 years or less
than 5 years. Tex. Penal Code Ann. § 12.32 (Vernon 2003).

                                              2
denying appellant due process and equal protection of the law. We find appellant was not

entitled to a manslaughter instruction.


       If facts are elicited during trial that raise an issue of a lesser-included offense and

a charge is properly requested, then a charge on the issue must be given. Ross v. State,

861 S.W.2d 870, 877 (Tex.Crim.App. 1992).            The Court of Criminal Appeals has

established a two-pronged test to determine whether a defendant is entitled to a charge

on a lesser-included offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App.

1997); Aevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997); Royster v. State, 622

S.W.2d 442 (Tex.Crim.App. 1981).          See also Hall v. State, 225 S.W.3d 524, 535

(Tex.Crim.App. 2007) (applying test); Baca v. State, 223 S.W.3d 478, 480

(Tex.App.–Amarillo 2006, no pet.). First, the lesser-included offense must be included

within the proof necessary to establish the offense charged, and, second, some evidence

must exist in the record that would permit a jury rationally to find that if the defendant is

guilty, he is guilty only of the lesser offense. Skinner, 956 S.W.2d at 543, citing Rousseau

v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). See also Hall, 225 S.W.3d at 535-

36; Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998).


       In deciding whether the issue of a lesser-included offense is raised, we look to all

the evidence presented at trial. Havard v. State, 800 S.W.2d 195, 216 (Tex.Crim.App.

1989); Grotti v. State, 209 S.W.3d 747, 773 (Tex.App.–Fort Worth 2006), aff’d, 2008 WL

2512832 (Tex.Crim.App. 2008).        The credibility of the evidence and whether it is

controverted or conflicts with other evidence may not be considered. Havard, 800 S.W.2d



                                              3
at 216. Furthermore, it is not enough that the jury may disbelieve crucial evidence

pertaining to the greater offense. Skinner, 956 S.W.2d at 543. Rather, there must be

some evidence directly germane to a lesser-included offense for the fact-finder to consider

before an instruction on a lesser-included offense is warranted. Id. The defendant's

testimony alone may be sufficient to raise the issue of a lesser-included offense. Lugo v.

State, 667 S.W.2d 144, 147 (Tex.Crim.App. 1984).


       The parties agree the first prong of the test is satisfied. The indictment charged

appellant with murder as defined in § 19.02(b)(1) of the Penal Code, requiring proof that

he intentionally or knowingly caused Avila’s death. Appellant could have been convicted

of manslaughter on proof that he recklessly caused Avila’s death. See Tex. Penal Code

Ann. § 19.04 (Vernon 2003) (defining manslaughter). Manslaughter thus was a lesser-

included offense of the charged murder. See Tex. Code Crim. Proc. Ann. art. 37.09(3)

(Vernon 2006) (offense is lesser-included offense if, inter alia, it differs from offense

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

commission); Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003) (voluntary

manslaughter is lesser-included offense of murder under Code of Criminal Procedure

article 37.09(3)).2


       Appellant testified that at closing time, he left the bar behind his friend. The bar’s

doorway was crowded with patrons leaving the bar. He saw the altercation between his



       2
        Courts sometimes also phrase the first prong of the test as requiring that the
asserted lesser-included offense come within the provisions of article 37.09. See Moore,
969 S.W.2d at 6-7; Baca, 223 S.W.3d at 480.

                                             4
friend and the victim. He testified that he was sensitive to such situations because he and

his brother had been injured in a bar assault in 2003. As he was leaving the bar, someone

hit him in the back, causing him to fall to one knee. He was punched in the forehead and

the back of his head and was kicked in the buttocks. His sunglasses were knocked off the

back of his head and his medallion was broken and ripped off his neck. He “panicked” and

reached for and opened his pocket knife. He testified that when he took the knife out he

“was scared. [He] didn’t know what was going on. [He] didn’t know what was happening

to [his] friend. [He] didn’t know what was going to happen to [him].” He yelled out twice “get

away, I have a knife” and swung the knife fast, making contact. He testified that while he

knew the knife was making contact, he “didn’t think it was that bad.” 3


           Appellant further testified that at some point, he realized he was struggling with the

victim. The victim was pushing him down and hitting him in the back of his head.

Appellant continued his erratic movements with the knife until he felt blood on him. He saw

the victim holding his neck, realized that he injured the victim, and pushed away.4 Later

in his testimony, appellant characterized the stabbing as “an accident,” then said he “was

just trying to protect myself.”


           Application of the second prong of the test requires that there exist in the record

some evidence that appellant was reckless in causing the death of the victim, but did not



           3
       The record indicates that the victim sustained several superficial stab wounds and
abrasions in addition to the stab wound in his neck.
           4
               The record also reflects that appellant cut another individual across the cheek and
nostril.

                                                   5
act intentionally or knowingly.      See Adanandus v. State, 866 S.W.2d 210, 232

(Tex.Crim.App. 1993) (applying second prong analysis). Section 6.03(c) of the Texas

Penal Code provides that a person's conduct is reckless when he “is aware of but

consciously disregards a substantial and unjustifiable risk . . . the result will occur.” Tex.

Penal Code Ann. § 6.03(c) (Vernon 2003). In contrast, one acts intentionally “when it is

his conscious objective or desire to engage in the conduct or cause the result” or knowingly

“when he is aware that his conduct is reasonably certain to cause the result.” Id. In other

words, for appellant to receive an instruction on the lesser included offense of

manslaughter, a rational jury must be able to find that appellant behaved in such a way that

he consciously disregarded a substantial and unjustifiable risk toward the victim, but was

not aware that his conduct was reasonably certain to cause the victim's death. Id.; Chavez

v. State, No. 07-03-0509-CR, 2005 WL 1403992 (Tex.App.–Amarillo June 15, 2005, no

pet.) (mem. op., not designated for publication).


       Appellant points to his statement that the stabbing was “an accident.”              In

determining whether there is evidence to support a requested recklessness charge, courts

have found a statement that a defendant did not intend to kill the victim “cannot be plucked

out of the record and examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584

(Tex.Crim.App. 1986); see Martinez, 16 S.W.3d at 847. Neither is appellant’s statement

that the stabbing “was an accident” properly plucked from the record and examined in a

vacuum.5 Viewed in context, we do not agree it provides evidence appellant was aware


       5
        The context of appellant’s statement was the following:
       Q: (by counsel):   What was your feeling about this today as we sit here?
       A: (by appellant): If I could take it back, I wish–I wish I would never have been
                          there.

                                              6
of but consciously disregarded a substantial and unjustifiable risk that his actions would

result in Avila’s death. In response to the very next question, appellant asserted he “was

just trying to protect myself,” returning to his consistent theme that he was responding to

the attacks on him, and was acting in fear of his life.


       Moreover, this court and others have held that the justification of self-defense is

inconsistent with a claim that the defendant acted only recklessly. See Chavez v. State,

2005 WL 1403992 at *2, citing Martinez v. State, 16 S.W.3d 845, 848 (Tex.App.–Houston

[1st Dist.] 2000, pet. ref’d]); Johnson v. State, 915 S.W.2d 653, 659 (Tex.App.–Houston

[14th Dist.] 1996, pet. ref’d) (all holding “one cannot accidentally or recklessly act in self-

defense”); accord, Avila v. State, 954 S.W.2d 830, 843 (Tex.App.–El Paso 1997, pet. ref’d)

(holding defendant’s testimony he acted in self-defense precluded an instruction on

reckless discharge of weapon). We find that holding applicable here.


       As did the defendant in Chavez, 2005 WL 1403992 at *2, appellant here relies on

O’Brien v. State, 89 S.W.3d 752 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d). There, the

defendant intentionally aimed a gun at the victim in self-defense but was struck over the

head with a board, causing him to clench and fire the gun accidentally. Id. at 755-56. The

court determined the evidence was sufficient to suggest the defendant recklessly caused




       Q:     Do you wish that you never had been there because of what has happened
              to you or because of what has happened to Mr. Avila?
       A:     I do not think it should have turned out like that. It was an accident.
       Q:     It was an accident?
       A:     Yes, sir.
       Q:     Did you have any idea that you were going to cause the damage that you
              caused in this particular incident?
       A:     No sir, I was just tying to protect myself. If I could take it back, I would.

                                              7
the death of the victim and entitled him to an instruction on the lesser offense of involuntary

manslaughter. Id. O’Brien is of the category of cases that involve evidence a weapon

accidentally discharged. See, e.g., Hayes v. State, 728 S.W.2d 804, 809-10

(Tex.Crim.App. 1987), cited in Johnson, 915 S.W.2d at 659. This is not such a case, and

O’Brien is inapposite.


       For these reasons, we find the second prong of the test is not satisfied. The trial

court did not err in refusing to instruct the jury on the lesser included offense of

manslaughter. Accordingly, we overrule appellant’s issue on appeal, and affirm his

conviction and sentence.




                                           James T. Campbell
                                               Justice




Publish.




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