                                     NO. 07-03-0520-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                    JANUARY 4, 2006
                            ______________________________

                              STEPHEN ZARATE, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE
                          _________________________________

               FROM THE 110TH DISTRICT COURT OF DICKENS COUNTY;

                   NO. 2261; HONORABLE JOHN R. HOLLUMS, JUDGE
                          _______________________________


Before QUINN, C.J., and CAMPBELL, J., and BOYD, S.J.1


                                 MEMORANDUM OPINION


      Appellant Stephen Zarate appeals his conviction for the felony offense of

manslaughter and jury-assessed punishment of twenty years confinement and a $10,000

fine. We affirm.


      Appellant’s prosecution arose from the shooting death of Martin Garcia, Jr. in

Dickens County on the evening of June 30, 2003. The evidence presented at trial was



      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
undisputed. It showed Martin and his cousin David Garcia were each working on land in

Dickens County owned by their families. They went to a store in Dickens together to

purchase beer and whisky.       At the store they met appellant, with whom each was

acquainted. Appellant told them he might stop by to visit with them later that afternoon.

Martin and David returned and divided their time between working and drinking. Appellant

arrived about 4 p.m. and the conversation turned to a new scope appellant had purchased

for his rifle. He brought out the rifle and the three men took turns firing it at a fencepost.

David also fired a pistol appellant had with him.


       David said he was not knowledgeable about firearms but appellant seemed “to know

what he was talking about.” David left about 6 p.m., leaving Martin and appellant together.

A neighbor of Martin’s stopped and visited with the two men for about an hour. The

neighbor left between 8:30 and 9 p.m. Both David and the neighbor said there was no

dispute between appellant and Martin. Subsequent events were presented through the

unchallenged testimony of Dickens County sheriff Ken Brendle and deputy Jimmy Land

based on separate statements appellant made to them. Appellant and Martin discussed

appellant’s purchase of cattle from Martin. Appellant related they went to see the cattle and

Martin became angry when appellant said he would have to speak to relatives about the

sale first. They returned to their previous location and had another beer together before

the argument reignited. According to appellant’s statements, Martin threatened to shoot

appellant. Appellant retrieved his rifle from his truck and, in one version of his statement,

pointed the rifle in the direction of Martin and fired. His other statement was that he fired

the rifle into the ground.


                                              2
       Martin’s daughter and son-in-law discovered his body late that evening. When he

heard of Martin’s death the next day, David tried to reach appellant at work and contacted

the Dickens County Sheriff’s Office to tell them he had last seen Martin with appellant.

Later that day appellant came to the sheriff’s office because he had heard officers wanted

to speak with him. He spoke to deputy Land first. After being advised of his constitutional

rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), appellant initially said he did not want to talk, but then “slowly started relating a

story” without any interrogation by Land. When Brendle arrived he simply asked appellant

if he wanted to talk, and appellant repeated the same story. Appellant refused to make a

written statement for either officer.


       Appellant was subsequently indicted for the offense of murder. The case was tried

to a jury. The jury charge, submitted without objection, included a charge and instructions

on the offenses of murder, manslaughter, aggravated assault and deadly conduct. The jury

found appellant guilty of manslaughter and further found he used or exhibited a deadly

weapon during the commission of the offense. The jury also assessed punishment of

twenty years confinement in the Institutional Division of the Department of Criminal Justice

and a $10,000 fine. The trial court rendered judgment in conformity with the jury’s verdicts,

including an affirmative finding on use of a deadly weapon.


       Appellant’s three issues on appeal are that the evidence is legally and factually

insufficient to support the conviction, there was no evidence supporting submission of the

jury charge on manslaughter, and that the trial court erred in including a deadly weapon

finding in the judgment.

                                             3
       A person commits the offense of manslaughter by recklessly causing the death of

another. Tex. Penal Code Ann. § 19.04(a) (Vernon 2003). A person acts recklessly when

he is aware of but consciously disregards a substantial and unjustifiable risk a result will

occur. Tex. Penal Code Ann. § 6.03(c) (Vernon 2003). The risk must be of such a nature

and degree that its disregard constitutes a gross deviation from the care an ordinary person

in the actor’s position would exercise. Id.


       Appellant presents no challenge to the State’s factual allegations or supporting

evidence. He argues that those facts are no evidence he was aware of but consciously

disregarded a substantial and unjustifiable risk of death from his conduct. Appellant offers

no authority in support of that position.2 He agrees that a defendant’s mental state is

generally proven through circumstantial evidence and by inferences drawn from his acts

and surrounding circumstances. Salazar v. State, 131 S.W.3d 210, 213 (Tex.App.–Fort

Worth 2004, pet. ref’d).


       There is ample authority that pointing a loaded firearm in the direction of another and

firing it meets the Penal Code’s definition of recklessness. As the State correctly notes, in

defining the offense of deadly conduct the Penal Code provides, “Recklessness and danger



       2
         Based on State v. Lee, 818 S.W.2d 778 (Tex.Crim.App. 1991), overruled on other
grounds, Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998), the State initially responds
that appellant is estopped from asserting the insufficiency of the evidence supporting
conviction of any lesser-included offense because he failed to object to the submission of
those issues to the jury. Cf. Otting v. State, 8 S.W.3d 681 (Tex.App.–Austin 1999, pet.
ref’d, untimely filed), with McLendon v. State, 167 S.W.3d 503, 508 (Tex.App.–Houston
[14th Dist.] 2005, no pet.) (declining to apply Lee to factual sufficiency challenge).
Resolution of appellant’s appeal does not require us to address the application of Lee to
his challenges to the sufficiency of the evidence.

                                              4
are presumed 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.” Tex. Penal Code Ann. §

22.05(c) (Vernon 2003).


       Moreover, recklessness findings have been affirmed in factually similar cases. In

Gaona v. State, 733 S.W.2d 611 (Tex.App.–Corpus Christi 1987, pet ref’d), the court

upheld a conviction based on evidence that included the defendant’s statement to officers

he fired a .22 caliber rifle at the ground. Id. at 614-15. The court relied on other facts also

shown here: that the defendant was familiar with firearms and knew the gun was loaded.

Id. See also Rodriquez v. State, 699 S.W.2d 358, 359 (Tex.App.–Dallas 1985, no pet.)

(firing in general direction of victim sufficient to show recklessness).


       Findings of recklessness have been upheld even when the defendant did not intend

to point a firearm at the victim. Davis v. State, 757 S.W.2d 386, 388 (Tex.App–Dallas

1988, no pet.) (victim shot while defendant was twirling gun he believed to be unloaded);

Sadler v. State, 728 S.W.2d 829, 831 (Tex.App.–Dallas 1987, no pet.) (spouse shot in

struggle for handgun). See also Yates v. State, 624 S.W.2d 816, 817 (Tex.App.–Houston

[14th Dist.] 1981, no pet.) (victim shot in “quick-draw” contest). The evidence was legally

sufficient to support the jury’s finding that appellant acted recklessly. It was not so weak

that it fails to support the finding of guilt beyond a reasonable doubt. Zuniga v. State, 144

S.W.3d 477, 485 (Tex.Crim.App. 2004) (discussing standards for determining factual

sufficiency). Appellant has failed to identify, and our review does not disclose, any contrary

evidence, precluding a determination that the strength of contrary evidence rendered the



                                              5
evidence of guilt factually insufficient. See id. at 485. Finding no merit in his challenges

to the legal or factual sufficiency of the evidence, we overrule appellant’s first issue.


       In his second issue appellant assigns error to the trial court’s inclusion of a jury

charge on the offense of manslaughter. He does not deny that manslaughter is a lesser-

included offense of murder. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App.

2003) (manslaughter is a lesser-included offense of murder). His challenge is based on

his position there was no evidence of recklessness. Our disposition of appellant’s first

issue is also dispositive of his second issue. The trial court did not err in submitting the

charge on manslaughter. In accordance with the procedure for reviewing charge error, we

do not reach the question of whether appellant preserved this complaint by timely objection.

See Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003) (preservation of charge

error is not an issue until harm is assessed). We overrule appellant’s second issue.


       Appellant’s third issue presents a challenge to the trial court’s inclusion of a deadly

weapon finding in its judgment. He cites Ex parte Flannery, 736 S.W.2d 652 (Tex.Crim.

App. 1987), as listing the only three ways in which a deadly weapon finding may be made,

specifically that (1) the indictment specifically alleges the words "deadly weapon" in

describing the weapon used, and the verdict reads "guilty as charged in the indictment”;

(2) the indictment names a weapon which is per se a deadly weapon and the verdict reads

"guilty as charged in the indictment”; and (3) a special issue is submitted to the trier of fact

and answered affirmatively. Id. (following Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.

App. 1985)).



                                               6
        The indictment alleged appellant shot the victim with a firearm. The jury’s verdict

stated: “We, the jury, find the defendant, STEPHEN ZARATE, guilty of manslaughter. We

further find that the defendant did use or exhibit a deadly weapon, to-wit: a firearm during

the commission of the offense.” Appellant argues that because he was not found guilty “as

charged in the indictment” and trial court failed to require a separate finding on the use of

a deadly weapon, the jury’s verdict was insufficient to meet the requirements of Flannery.


        Since its opinion in Flannery, the Court of Criminal Appeals has clarified the ways

in which the requirement of an express finding of a deadly weapon by a jury may be

satisfied when a defendant is found guilty of a lesser-included offense. In Lafleur v. State,

106 S.W.3d 91 (Tex.Crim.App. 2003), the Court held a deadly weapon allegation in the

indictment,3 together with a deadly weapon allegation in the application paragraph of a

lesser-included charge and an express deadly weapon finding in the jury’s verdict are

sufficient evidence of an express finding by the jury. Id. at 99. Each of those elements was

present here. The inclusion of a deadly weapon finding in the trial court’s judgment




was proper. We overrule appellant’s third and final issue and affirm the judgment of the

trial court.




        3
         The indictment did not specifically allege the firearm was a deadly weapon. That
allegation was unnecessary because a firearm is a deadly weapon per se. Tex. Penal
Code Ann. §1.07(a)(17) (Vernon 2005). Thomas v. State, 821 S.W.2d 616, 618 (Tex.Crim.
App. 1991).

                                             7
                      James T. Campbell
                          Justice




Do not publish.




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