Affirmed and Memorandum Opinion filed November 17, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00637-CR

                     JASON CHARLES SAVOY, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1426028

                       MEMORANDUM OPINION

      In this appeal from a conviction for murder, we consider three issues of
alleged charge error. The first two issues pertain to requests for lesser-included
offenses, and the third issue pertains to the trial court’s given instruction on self-
defense. Finding no error with respect to any of the three issues, we affirm the trial
court’s judgment.
                                   BACKGROUND

         The complainant died after appellant stabbed him in the chest with a
switchblade. The knife penetrated to a depth of five inches, piercing completely
through the heart.

         The stabbing occurred at a gas station in a neighborhood known for drug
trafficking. Surveillance cameras recorded the entire incident on video. The
footage depicts the complainant exiting from the passenger side of a vehicle and
walking towards a man, later identified as appellant, who was waiting outside the
storefront. The two men negotiated briefly over the sale of cocaine. After appellant
delivered the drugs, the complainant attempted to walk back to his vehicle,
apparently without paying. Appellant moved in front of the complainant to block
his return to his vehicle. At this point, the complainant gestured towards another
passenger in the backseat of the vehicle. Appellant then pushed back at the
complainant, and in a swift movement, stabbed the complainant once in the chest.
Appellant allowed the complainant to reenter the vehicle and drive away with the
drugs.

         Police quickly identified appellant as a likely suspect and brought him in for
questioning a few hours after the stabbing. Appellant initially denied any
involvement in the incident, but after learning that the complainant had died and
that surveillance cameras had captured everything on video, appellant confessed to
the stabbing and claimed that he had acted in self-defense. Appellant explained that
he got into a tussle with the complainant because the complainant refused to pay
for his drugs. Appellant also claimed that when the complainant gestured towards
his vehicle, the complainant was telling the rear passenger to shoot and kill
appellant. According to appellant, that rear passenger had a gun, and appellant
believed that he was being robbed.

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                        LESSER-INCLUDED OFFENSES

      During the charge conference, appellant requested instructions on the lesser-
included offenses of aggravated assault and manslaughter. The trial court denied
both requests, and appellant complains of those rulings in his first and second
issues.

      We review complaints of jury-charge error under a two-step process,
considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005). If error does exist, we then analyze that error for harm under the
procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1984).

      We apply a two-part test when deciding whether a trial court erred by
denying an instruction on a lesser-included offense. See Segundo v. State, 270
S.W.3d 79, 90 (Tex. Crim. App. 2008). First, we consider whether the requested
offense is a lesser-included offense of the charged offense by comparing the
statutory elements of both offenses. Id.; see also Tex. Code Crim. Proc. art. 37.09.
This analysis is a pure question of law and does not depend on the evidence
produced at trial. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).
Second, if the requested offense is a lesser-included offense, we then consider
whether there is some evidence in the record from which a rational jury could
acquit the defendant of the greater offense while convicting him of the lesser-
included offense. See Segundo, 270 S.W.3d at 90–91. If the record contains such
evidence, then the defendant is entitled to the instruction and the trial court errs by
denying a request for the instruction. See Thomas v. State, 699 S.W.2d 845, 849
(Tex. Crim. App. 1985).

      When conducting the second part of this error analysis, we review all of the
evidence presented at trial without considering its credibility or whether it conflicts
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with other evidence. See Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
Anything more than a scintilla of evidence may be sufficient to entitle a defendant
to an instruction on the lesser-included offense. See Hall, 225 S.W.3d at 536.
However, the evidence must establish the lesser-included offense as a valid,
rational alternative to the charged offense. See Wesbrook v. State, 29 S.W.3d 103,
113 (Tex. Crim. App. 2000). If the defendant either presents evidence that he
committed no offense or presents no evidence, and there is no evidence otherwise
showing that he is guilty of only a lesser-included offense, a charge on the lesser-
included offense is not required. See Bignall v. State, 887 S.W.2d 21, 24 (Tex.
Crim. App. 1994).

      Aggravated Assault. We begin by comparing the elements of the charged
offense with the elements of aggravated assault. The indictment alleged two
theories of murder: (1) that appellant intentionally or knowingly caused the death
of the complainant by stabbing him with a deadly weapon; and (2) that appellant
intended to cause serious bodily injury to the complainant and did cause the death
of the complainant by intentionally or knowingly committing an act clearly
dangerous to human life, namely, by stabbing the complainant with a deadly
weapon. See Tex. Penal Code § 19.02(b)(1)–(2). As far as the second theory is
concerned, serious bodily injury means bodily injury that creates a substantial risk
of death or that causes death, serious permanent disfigurement, or protracted loss
or impairment of the function of any bodily member or organ. Id. § 1.07(a)(46). An
act clearly dangerous to human life is one that objectively creates a substantial risk
of death. See Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 1983).

      A person commits a regular assault if he intentionally, knowingly, or
recklessly causes bodily injury to another. See Tex. Penal Code § 22.01(a)(1). A
person commits an aggravated assault if he commits a regular assault, as just

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defined, and the person further causes serious bodily injury to another. Id.
§ 22.02(a)(1).

      The statutory elements of aggravated assault fit within the proof required of
murder. The only difference between the two offenses is the severity of the injury.
See Tex. Code Crim. Proc. art. 37.09(2). Accordingly, aggravated assault can be a
lesser-included offense of murder. See Cardenas v. State, 30 S.W.3d 384, 392
(Tex. Crim. App. 2000) (“We have recognized that manslaughter, criminally
negligent homicide and aggravated assault are lesser-included offenses of murder
and, therefore, of capital murder.”).

      We must now consider whether a rational jury could have acquitted
appellant of murder but convicted him of aggravated assault, based on the evidence
adduced at trial. To satisfy this test, there must be affirmative evidence that both
raises the lesser-included offense and rebuts or negates an element of the greater
offense. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).

      Appellant refers us to his trial testimony in which he stated that he did not
intend to kill or hurt the complainant. We conclude that this testimony is
insufficient, by itself, because it does not rebut or negate the evidence that
appellant intentionally stabbed the complainant in the chest, which is an act clearly
dangerous to human life that resulted in the complainant’s death. See Tex. Penal
Code § 19.02(b)(2). A rational jury could not rely solely on appellant’s testimony
and still conclude that appellant was not guilty of murder. See Dale v. State, 90
S.W.3d 826, 833 (Tex. App.—San Antonio 2002, pet. ref’d) (defendant’s
testimony that he did not intend to kill the complainant did not entitle him to an
instruction on the lesser-included offense of aggravated assault where there was no
testimony negating the evidence that he intentionally caused serious bodily injury
to the complainant by repeatedly kicking the complainant in the head, an act

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clearly dangerous to human life that resulted in death); see also Cardenas, 30
S.W.3d at 393 (defendant’s testimony that he “lost it” did not negate the physical
evidence showing an intent to kill).

      Appellant responds that his case is similar to Lawson v. State, 775 S.W.2d
495 (Tex. App.—Austin 1989, pet. ref’d), in which the court held that the
defendant’s testimony about his intent was sufficient to warrant an instruction on
the lesser-included offense. Lawson is distinguishable, however. In that case, the
defendant testified that he “smacked” the complainant with a loaded pistol, and the
pistol accidentally discharged. Id. at 496. The defendant’s testimony that the pistol
accidentally discharged negated the other evidence that the defendant intentionally
pulled the trigger. Id. at 499–500. There is no comparable evidence in this case
demonstrating that appellant did not intend to stab the complainant or that he
accidentally stabbed the complainant.

      The trial court did not err by denying the requested instruction for the lesser-
included offense of aggravated assault.

      Manslaughter. To obtain a conviction for manslaughter, the State must
prove that a person recklessly caused the death of another. See Tex. Penal Code
§ 19.04(a). And to establish recklessness, the State must prove that the person was
aware of but consciously disregarded a substantial and unjustifiable risk with
respect to either the nature or result of his conduct. Id. § 6.03(c).

      The only difference between causing death while consciously disregarding a
risk that death will occur (i.e., manslaughter) and intending to cause serious bodily
injury that results in death (i.e., murder) is that the former requires a lesser culpable
mental state. See Cavazos, 382 S.W.3d at 384. Therefore, manslaughter can be a
lesser-included offense of murder. See Tex. Code Crim. Proc. art. 37.09(3).


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      We now consider whether there is some evidence from which a rational jury
could have found appellant guilty of manslaughter but not guilty of murder. This
condition is satisfied when there is “some affirmative evidence that Appellant did
not intend to cause serious bodily injury when he [stabbed] the victim” and “some
affirmative evidence from which a rational juror could infer that Appellant was
aware of but consciously disregarded a substantial and unjustifiable risk that death
would occur as a result of his conduct.” See Cavazos, 382 S.W.3d at 385.

      As stated above, there is nothing in the record rebutting the evidence that
appellant intentionally stabbed the complainant. Appellant’s testimony that he did
not intend to kill or hurt the complainant does not refute the evidence that he
intended to cause serious bodily injury by stabbing the complainant with a
switchblade. See Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st
Dist.] 2000, pet. ref’d) (intent to hurt a person “with a knife is intent to cause
serious bodily injury”). Similarly, appellant never testified that he was unaware
that his switchblade was dangerous or that a person could be seriously injured if
the person were stabbed in the chest with a switchblade.

      Appellant nevertheless contends that he was entitled to an instruction on
manslaughter because he caused the death of the complainant under the immediate
influence of sudden passion arising from adequate cause. For this proposition,
appellant relies on several authorities applying the former statute for voluntary
manslaughter, the elements of which included sudden passion and adequate cause.
See Act approved June 19, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen.
Laws 3586, 3614 (deleting the former statutes for voluntary manslaughter and
involuntary manslaughter and replacing them with the current statute for
manslaughter).



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        Under the current Penal Code, there is no offense for voluntary
manslaughter, and the elements of manslaughter do not include sudden passion and
adequate cause. See Tex. Penal Code § 19.04. Accordingly, even if there were
evidence that appellant had acted under sudden passion arising from adequate
cause, that evidence would not enable a rational jury to convict appellant of a
lesser offense than murder. See Cavazos, 382 S.W.3d at 385 (holding that there
must be evidence “directly germane to recklessness” before the defendant may be
entitled to an instruction on the lesser-included offense of manslaughter).

        Because there is no evidence that appellant did not intend to cause serious
bodily injury and there is no evidence of recklessness, the trial court did not err by
denying the requested instruction for manslaughter.

                         SELF-DEFENSE INSTRUCTION

        In his final issue, appellant raises two complaints regarding the trial court’s
instruction on self-defense. In the first complaint, appellant argues that the trial
court erred by not clearly explaining that the State had the burden of disproving
self-defense beyond a reasonable doubt. In the second complaint, appellant argues
that the trial court erred by having an application paragraph for self-defense that
was separate and apart from the application paragraph for murder. Appellant did
not make these objections in the trial court, but he contends that he was
egregiously harmed by the trial court’s errors. We examine each alleged error in
turn.

        The Burden of Proof. The defendant bears the burden of producing some
evidence in support of a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589,
594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State
bears the burden of persuasion to disprove that defense. Id. The burden of


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persuasion is not one that requires the production of evidence. Id. Rather, it
requires only that the State prove its case beyond a reasonable doubt. Id.

      In this case, the self-defense portion of the charge did not specifically
identify whether appellant had the burden of proving that he acted in self-defense,
or whether the State had the burden of disproving that he acted in self-defense.
Instead, the charge contained these two application paragraphs:

             Therefore, if you find from the evidence beyond a reasonable
      doubt that [appellant] did cause the death of [the complainant], by
      stabbing [the complainant] with a deadly weapon, namely a knife; or
      did cause the death of [the complainant], by stabbing [the
      complainant] with a deadly weapon, namely an unknown sharp object,
      as alleged, but you further find from the evidence, as viewed from the
      standpoint of the defendant at the time, that from the words or
      conduct, or both of [the complainant] it reasonably appeared to the
      defendant that his life or person was in danger and there was created
      in his mind a reasonable expectation or fear of death or serious bodily
      injury from the use of unlawful deadly force at the hands of [the
      complainant], and that acting under such apprehension and reasonably
      believing that the use of deadly force on his part was immediately
      necessary to protect himself against [the complainant’s] use or
      attempted use of unlawful deadly force, he stabbed [the complainant],
      then you should acquit the defendant on the grounds of self-defense;
      or if you have a reasonable doubt as to whether or not the defendant
      was acting in self-defense on said occasion and under the
      circumstances, then you should give the defendant the benefit of the
      doubt and say by your verdict, not guilty.
             If you find from the evidence beyond a reasonable doubt that at
      the time and place in question the defendant did not reasonably
      believe that he was in danger of death or serious bodily injury, or that
      the defendant, under the circumstances as viewed by him from his
      standpoint at the time, did not reasonably believe that the degree of
      force actually used by him was immediately necessary to protect
      himself against [the complainant’s] use or attempted use of unlawful
      deadly force, then you should find against the defendant on the issue
      of self-defense.

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      Appellant argues that the charge should have contained a simple instruction
about the burden of proof, like the Pattern Jury Charge instruction for self-defense,
which provides as follows: “The defendant is not required to prove self-defense.
Rather, the state must prove, beyond a reasonable doubt, that self-defense does not
apply to the defendant’s conduct.” Texas Criminal Pattern Jury Charges: Criminal
Defenses § 32.2, at 184 (2015). Although an instruction of this type may have been
preferable, given its simplicity, it was not necessary based on the remaining
instructions in the charge.

      After the instruction on self-defense, the charge provided that appellant was
entitled to a presumption of innocence and that the “burden of proof in all criminal
cases rests upon the State throughout the trial and never shifts to the defendant.”
When these instructions are read alongside the application paragraphs for self-
defense, the charge cannot be said to have placed the burden on appellant for
proving that he had acted in self-defense. “Clearly, when the charge is viewed as a
whole, it placed the burden on the State to show beyond a reasonable doubt that
appellant was not acting in self-defense.” Luck v. State, 588 S.W.2d 371, 375 (Tex.
Crim. App. 1979).

      The trial court did not err by giving the jury the self-defense instruction as
written.

      Order of the Instruction. The charge addressed the elements of murder
before the issue of self-defense. The murder portion contained abstract and
application paragraphs, which instructed the jury that it should find appellant guilty
if all of the elements of murder had been proven beyond a reasonable doubt. These
instructions did not specifically reference self-defense. In the self-defense portion,
which immediately followed the murder portion, there were separate abstract and
application paragraphs, which provided that the jury should acquit appellant if the

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jury found or had a reasonable doubt that appellant had acted in self-defense when
he stabbed the complainant.

      Appellant asserts that the order of these instructions was confusing, and he
argues that a self-defense provision should have been incorporated into the murder
portion of the charge. For example, he suggests that the murder portion should
have instructed the jury to convict him of murder if the elements of murder were
proven and the jury did not find beyond a reasonable doubt that appellant had acted
in self-defense.

      The Court of Criminal Appeals has already rejected the argument that a self-
defense instruction must be incorporated into the application paragraph of the
charged offense. See Hernandez v. State, 375 S.W.2d 285, 288 (Tex. Crim. App.
1963) (holding that a charge was not erroneous for having an instruction on self-
defense that followed, but had not been incorporated into, an application paragraph
for assault); Ekern v. State, 200 S.W.2d 412, 415 (Tex. Crim. App. 1947) (“The
court cannot and is not required to charge all the law in each paragraph of his
charge, but such charge should be taken and considered as a whole; and an
ordinary jury is expected to and surely does take the charge as a whole and
considers it as such.”). Accordingly, we hold that the charge was not erroneous
based on the order in which the self-defense instruction appeared. See Green v.
State, 675 S.W.2d 541, 543 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d)
(“Where the court, later in its charge, gives an unrestricted charge on self-defense
(as was done in this case) it is not necessary in applying the law to the facts from
the standpoint of the state for the court to require the jury to find the accused was
not acting in self-defense.”).




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                                 CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Chief Justice Frost and Justices Boyce and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).




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