AFFIRM; and Opinion Filed May 16, 2016.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-15-00652-CR

                              WILLIAM SIMONS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the 422nd Judicial District Court
                                Kaufman County, Texas
                         Trial Court Cause No. 15-00125-422-F

                            MEMORANDUM OPINION
                        Before Justices Fillmore, Stoddart, and Schenck
                                 Opinion by Justice Fillmore

       A jury found William Simons guilty of the murder of Roxie Quilter and assessed

punishment of life imprisonment. In three issues, Simons asserts the trial court reversibly erred

in allowing the State to introduce evidence during the guilt–innocence phase of trial concerning

his prior conviction for assaulting Quilter and failing to submit to the jury instructions on the

lesser-included offenses of aggravated assault and manslaughter. We affirm the trial court’s

judgment.

                                     Factual Background

       On March 11, 2014, Quilter died of gunshot wounds inflicted by Simons, her long-time

boyfriend with whom she lived. Simons was charged with murder.

       Sergeant Phillip Stewart, a Kaufman County Sheriff’s Office criminal investigator,

testified that he arrived at the Kemp, Texas, crime scene at approximately 10:05 p.m. Quilter
was deceased and laying on the front porch of the mobile home she owned. Stewart learned

there had been a 9-1-1 call from Simons at approximately 8:34 p.m. during which Simons stated

to the police dispatcher that he had shot Quilter.

       Stewart and Texas Ranger Victor Patton interviewed Simons after he had been taken to

jail. The recording of that interview was introduced into evidence and played for the jury. In

that interview, Simons stated he had contacted the police after he shot Quilter, and he was

“guilty, otherwise I wouldn’t have turned myself in.” Simons indicated that Quilter had burned

the hamburger patties she prepared for his dinner, and he and Quilter began to argue and were

pushing and shoving one another. Quilter accused Simons of stealing radios out of her vehicles.

Simons stated in the interview that “one thing led to another” and “it just got to the point where

[he] had enough and something snapped.” Although Simons did not think his life was in danger,

he went to his room at the back of the mobile home, “got [his] pistol” (a nine millimeter semi-

automatic handgun) from a nightstand, returned to the living room where Quilter was sitting and

“shot her, plain and simple.” Simons told Stewart and Patton that he “thought [he] was just

going to threaten [Quilter],” but “[s]he got big mouth with him,” and “things got out of hand.”

He thought he would threaten Quilter by shooting next to her chair, but “it came too close.”

       Simons stated in the interview that the first shot he fired struck Quilter in her arm.

Quilter was seated and Simons was standing approximately three feet from her. Simons thought

the bullet had not struck Quilter, but she fell to the floor and Simons saw blood. Quilter grabbed

her phone but Simons took it away from her because he believed she was trying to call someone,

perhaps the police.

       Quilter crawled or backed out the front door onto the porch where she shouted “help,

help, help.” Simons followed Quilter as she backed out of the mobile home. Quilter was facing

Simons with one or both hands raised when he shot her a second time. Simons stated Quilter

                                                –2–
was fighting him, “as any person would do,” and trying to get away from him. Simons told

Stewart and Patton, “I shot her. I didn’t give her a chance to run.”

          Although Simons stated shooting Quilter was not something he had been planning to do

and was not “intentional,” he told Stewart and Patton that the second time he shot Quilter was

not an accident. Simons stated, “I’m guilty. That’s all there is to it,” and “I’ve got a conscience

and it’s a guilty conscience.” Simons stated, “I know I killed her. I think I killed her. I’m

guilty, no beating around the bush. I shot her and killed her. That’s the only way to look at it,

the only honest way to look at it.”

          Simons told Stewart and Patton that he was too scared to take Quilter’s pulse after he shot

her. After shooting Quilter the second time, Simons went back into the mobile home and called

Quilter’s daughter, Audra Harrington, to tell her what had happened.                                                  He also called his

daughter, Shannon Evans, and his former employer, Phillip Davis. 1 It did not “really cross his

mind” to call for an ambulance before he telephoned Harrington, Evans, and Davis, and he stated

he did not know if Quilter was alive or dead while he was speaking with them. Simons stated he

told each of them what he had done and that he thought Quilter was dead, although he was not

certain. Simons asked what he should do, and the responses varied from a suggestion that he

should turn himself in to a suggestion that he kill himself. Simons stated that he then placed a 9-

1-1 call no more than fifteen minutes after he shot Quilter.

          Stewart testified he did not observe any injuries to Simons, and Simons did not complain

of any injuries sustained in his argument with Quilter. The nine millimeter semi-automatic

handgun was the only weapon found in the mobile home. Based on his training, education, and

experience, Stewart testified the purpose of a firearm is to inflict bodily injury or death, and the



   1
       Although it is not clear, there is some indication in the record that Simons also may have called his sister, Sarah Orta.



                                                                      –3–
nine millimeter handgun found at the scene was capable of inflicting serious bodily injury or

death. Based on Stewart’s investigation, Simons was charged with murder.

       Harrington testified that at approximately 8:30 p.m. on March 11, 2014, she received a

telephone call from Simons. Simons told Harrington he had killed Quilter, and Harrington

became quite upset and threw her phone down. Harrington testified Quilter, who was required to

wear braces on her legs due to a muscle and nerve disease, was not a physically strong woman.

       Evans testified she received a phone call from Simons at approximately 8:30 p.m. on

March 11, 2014. Simons was agitated and nervous and sounded very upset. Simons admitted to

Evans that he had “done something” to Quilter. Simons’s speech was slightly slurred and he

stuttered; Evans could tell her father had been drinking. Evans was afraid Simons would harm

himself. She urged him to call an ambulance for Quilter. Her phone conversation with Simons

was very brief.

       Davis, who had known Simons for thirty years as a friend and former employee, also

testified regarding a telephone call he received from Simons at approximately 8:30 p.m. on

March 11, 2014. Simons sounded upset and agitated. It was not unusual for Simons to drink

alcohol at night and he was intoxicated. Simons was devastated about what had happened and

did not blame the incident on anyone else. Davis was concerned that Simons might harm

himself. Simons told Davis that he and Quilter were arguing about things that “had kind of come

to a head.” According to Davis, Quilter spoke her mind and was a “busybody” who liked a good

argument. Davis testified that Simons, on the other hand, never complained or argued and “ain’t

never said a bad word” of which Davis was aware. Rather than argue, Simons would “just be

quiet and walk away.” When confronted with a mistake he had made, Simons would “try to

explain, but he was very calm.”




                                             –4–
       The 9-1-1 telephone call placed by Simons after his telephone calls to Harrington, Evans,

and Davis, was introduced into evidence and played for the jury. On that recording, Simons

stated he “just shot [his] girlfriend” and she’s “definitely dead.” When asked by the police

dispatcher whether he meant to shoot Quilter, Simons responded, “Yes. We were fighting.”

Simons told the dispatcher that Quilter thought he was stealing radios out of her cars, and the

argument escalated; both Simons and Quilter got mad. He stated Quilter “fought like a cat,” and

he went to get his gun. Simons informed the dispatcher that he had shot Quilter twice; he first

shot Quilter in the mobile home and they fought all the way out to the front porch. He indicated

to the dispatcher that he shot Quilter about twenty minutes before placing the 9-1-1 phone call.

       Medical examiner Tracy Dyer, M.D., testified regarding the autopsy he performed on

Quilter. Dyer testified that a firearm is capable of inflicting death or serious bodily injury and it

is clearly dangerous to life to fire a projectile into a human body. According to Dyer, Quilter’s

cause of death was gunshot wounds. Dyer testified Quilter was either shot three times or was

shot twice, with one of the bullets striking her twice; he believed it was likely Quilter was shot

twice. A bullet entered the crease of Quilter’s left thigh and abdomen and exited her left thigh.

Another bullet passed through Quilter’s sternum and trachea, struck the arch of her aorta, passed

through her right lung, and exited the right side of her back. That bullet traveled in a trajectory

from front to back, left to right, and downward. Dyer did not know the sequence of the gunshots,

although the gunshot through the sternum was likely fatal and could have been immediately

fatal. Dyer also testified about a gunshot wound on the palm of Quilter’s left hand at the base of

her thumb, which was consistent with Quilter holding her hand up when the bullet struck. The

gunshot injury to Quilter’s hand contained soot from firearm combustion which indicated the

muzzle of the firearm was close to Quilter’s hand when it was fired. A toxicology screen

performed in conjunction with the autopsy indicated there were no drugs or alcohol in Quilter’s

                                                –5–
body at the time of her death. Dyer testified Quilter had no diseases that would have impeded

her life span in the near future.

        Simons testified his relationship with Quilter spanned over seventeen years. Quilter had

a nerve and tissue disease that affected her ability to walk, for which she wore leg braces, and her

fingers.   Simons confirmed that Davis’s description of Quilter’s personality was accurate.

Simons had noted a change in Quilter a couple of months before the incident: Quilter was

forgetful; she would accuse Simons of taking items she was unable to find; and she accused

Simons of having an affair. A day or two before the incident, Quilter drove Simons’s truck into

a mailbox and did not tell Simons about it. When Simons asked her about the damage to his

truck, Quilter told him someone had caused her to drive off the road. The day of the incident,

Quilter accused Simons of taking a radio out of her car.

        Simons drank a six-pack or more of beer every day, but did not begin drinking beer

before 5:00 p.m. Simons had consumed seven or eight beers on March 11, 2014. He stated he

was intoxicated when he shot Quilter, although he acknowledged that at no time in the interview

with Stewart and Patton did he tell them he had been under the influence of alcohol when he shot

Quilter.   Simons testified his argument with Quilter on March 11, 2014, resulted from a

combination of things, including the fact he remained upset about the damage done to his truck

when Quilter was driving it. The argument began after Quilter overcooked the hamburger patties

she prepared for Simons’s dinner. Simons told Quilter the hamburger patties were burned, and

she said she would make more. But when Simons handed the burnt hamburger patties to her,

Quilter threw them at him. The argument escalated to the point the couple was pushing and

shoving one another in the living room of the mobile home. They then argued on the front porch

of the mobile home and returned to the living room. Simons testified that as the argument

continued to escalate, he snapped; he testified it was as though Quilter had “pushed that red

                                                –6–
button” and he had never been that angry in his life. Quilter sat down in a chair in the living

room, and Simons went to his room to retrieve his handgun.

       According to Simons, he returned to the living room, pointed the gun at Quilter who was

seated, “and it went off.” Simons testified it was an accident, and he did not know the safety on

the handgun was not engaged. Simons thought he shot Quilter in her arm. Quilter reached for

her phone, but Simons grabbed the phone from her and threw it aside. Quilter fell to the floor

and crawled backwards on her hands and feet to the front door. After reaching up to open the

front door, Quilter crawled onto the front porch. Simons testified he thought Quilter “tripped”

on a planter, and he “just come up there and shot her.” Simons saw that Quilter’s chest and

abdomen were not moving, so he knew she was not breathing and was dead. Simons went back

into the mobile home and called Harrington, Evans, and Davis and told them he had shot Quilter.

He then placed a 9-1-1 call. At trial, Simons remembered telling the police dispatcher he had

shot his girlfriend and he had probably killed her.

       Simons admitted that shooting Quilter was unjustified. He testified that he intended to

point the handgun at Quilter. He knew that if a handgun is pointed at a person and the trigger is

pulled, death or serious bodily injury may result, and he was reasonably certain that the handgun

could cause death if he fired it at Quilter. Simons acknowledged that, insofar as he knew the

handgun could cause death, he knowingly caused Quilter’s death when he fired the handgun at

her on the porch of the mobile home.          Simons acknowledged the reason he telephoned

individuals after shooting Quilter and before placing a 9-1-1 call was he wanted to know how to

“get out of” shooting Quilter. When asked if the reason he wanted to “get out of” the situation

was because he had wrongfully shot Quilter in cold blood, Simons responded affirmatively.

       Simons recalled Davis’s testimony that Simons is mild mannered and meek and someone

who avoided arguments and conflict. He acknowledged, however, that on September 24, 2001,

                                                –7–
he pleaded guilty to assaulting Quilter. Although he was charged with assaulting Quilter by

choking her, Simons testified he did not choke Quilter but instead had pulled her hair.

                                    Procedural Background

       The jury found Simons guilty of murder. See TEX. PENAL CODE ANN. § 19.02(b)(1) &

(2) (West 2011). Simons pleaded true to a prior felony conviction for driving while intoxicated.

The jury found Simon was not acting under the influence of sudden passion when he shot Quilter

and assessed punishment of life imprisonment.          See id. § 12.42(c)(1) (West Supp. 2015).

Simons’s motion for new trial was overruled by operation of law, and he filed this appeal.

                              Admitting Evidence of Prior Assault

       In his first issue, Simons contends the trial court violated rule of evidence 403 by

permitting the State to introduce evidence during the guilt–innocence phase of trial that Simons

had previously assaulted Quilter. Simons argues on appeal that any probative value of the

evidence was substantially outweighed by unfair prejudice. See TEX. R. EVID. 403. The State

responds that Simons did not preserve that issue for appeal because he made no rule of evidence

403 objection to admission of the evidence at trial.

                                        Standard of Review

       We generally review the trial court’s admission of evidence under an abuse of discretion

standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); De La Paz v. State,

279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (admissibility of extraneous offense). As long as

the trial court’s ruling is within the “zone of reasonable disagreement,” there is no abuse of

discretion. Tillman, 354 S.W.3d at 435. A trial court’s decision to admit evidence of an

extraneous offense is generally within the zone of reasonable disagreement if the evidence shows

(1) the extraneous offense is relevant to a material, non-propensity issue, and (2) the probative




                                                –8–
value of the evidence is not substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading of the jury. De La Paz, 279 S.W.3d at 344.

                                            Discussion

       Outside the presence of the jury, the State apprised the trial court of its intention to

question Simons about his September 24, 2001 conviction for a misdemeanor assault of Quilter.

The State informed the trial court it was not seeking to introduce evidence regarding the prior

assault to show Simons acted in conformity with bad character, see TEX. R. EVID. 404(b), but

rather to controvert Davis’s testimony, elicited by the defense, describing Simons as mild

mannered and not desiring to argue, which left the impression Quilter would have been the

aggressor in an argument, and to controvert Simons’s testimony he had never been as angry as he

was on the night he shot Quilter. Simons objected to questioning regarding the prior assault

conviction, arguing that neither Davis’s testimony nor Simons’s testimony “opened the door” for

the State to impeach Simons with a misdemeanor assault conviction that occurred over ten years

previously.

       Generally, to preserve error for appellate review, a party’s objection must be sufficiently

specific so as to “let the trial judge know what he wants, why he thinks himself entitled to it, and

do so clearly enough for the judge to understand him at a time when the trial court is in a proper

position to do something about it.” Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App.

2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)); see also

Malone v. State, 405 S.W.3d 917, 925 (Tex. App.—Beaumont 2013, pet. ref’d). A complaint on

appeal must comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex.

Crim. App. 2012); see also TEX. R. APP. P. 33.1(a)(1)(A) (preservation of complaint for appellate

review requires complaint to trial court by timely request, objection, or motion with sufficient




                                                –9–
specificity to make trial court aware of complaint, unless specific grounds were apparent from

context).

          On appeal, Simons contends any probative value of the evidence of his prior conviction

for assaulting Quilter was substantially outweighed by unfair prejudice. See TEX. R. EVID. 403.

However, at trial, Simons’s objections to that evidence were that neither the testimony of Davis

nor Simons had “opened the door” to evidence controverting Simons’s mild manner and

avoidance of controversy and that the misdemeanor assault conviction was too remote in time to

be admissible. Simons failed to preserve in the trial court a rule of evidence 403 objection that

any probative value of the evidence was substantially outweighed by a danger of unfair

prejudice. Accordingly, Simons forfeited this complaint on appeal by not properly preserving

error at trial. See TEX. R. APP. P. 33.1(a)(1)(A); Clark, 365 S.W.3d at 340 (appellant failed to

preserve complaint for review when trial objection did not comport with issue raised on appeal);

see also Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g)

(objecting party must make rule of evidence 403 objection, separate and distinct from rule of

evidence 404(b) objection, to preserve rule 403 complaint on appeal). 2

          We resolve Simons’s first issue against him.

                  Lesser-Included Offenses of Aggravated Assault and Manslaughter

          In his second and third issues, respectively, Simons contends the trial court erred by

failing to submit to the jury instructions on the lesser-included offenses of aggravated assault and

manslaughter.          The State responds that Simons was not entitled to lesser-included offense

instructions on aggravated assault or manslaughter because Simons admitted to committing the




     2
       See also Balderas v. State, No. 05-14-00900-CR, 2015 WL 2329253, at *3 (Tex. App.—Dallas May 14, 2015, pet. ref’d) (mem. op., not
designated for publication); Burks v. State, No. 05-13-00852-CR, 2014 WL 5141663, at *5 (Tex. App.—Dallas Oct. 14, 2014, no pet.) (not
designated for publication).



                                                                –10–
offense as alleged in the indictment and there was no evidence in the record that Simons was

guilty of only the lesser-included offense of aggravated assault or manslaughter.

                                                        Standard of Review

          We apply the Aguilar/Rousseau test to determine whether an instruction on a lesser-

included offense should have been given to the jury. Cavazos v. State, 382 S.W.3d 377, 382

(Tex. Crim. App. 2012) (citing Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007)). 3

The first step is to determine whether the lesser offense is included within the greater offense.

Id. The State correctly concedes in this case that “manslaughter and aggravated assault by

causing serious bodily injury or by causing bodily injury with use or exhibition of a deadly

weapon are both theoretically lesser-included offenses of murder.” See id. at 386 (manslaughter

is lesser-included offense of murder); Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App.

2000) (manslaughter, criminally negligent homicide, and aggravated assault are lesser-included

offenses of murder). Consequently, we proceed to the second step, which is to determine

whether the evidence showed that if Simons is guilty, he is guilty only of the lesser offense of

aggravated assault or manslaughter. See Cavazos, 382 S.W.3d at 382, 385; McKinney v. State,

207 S.W.3d 366, 370 (Tex. Crim. App. 2006) (second step requires evaluation to determine

whether some evidence exists that would permit jury to rationally find that, if defendant is guilty,

he is guilty only of lesser offense). This second step is a question of fact and is based on the

evidence presented at trial. Cavazos, 382 S.W.3d at 383 The evidence must consist of “more

than mere speculation—[the second step] requires affirmative evidence that both raises the

lesser-included offense and rebuts or negates an element of the greater offense.” Id. at 385.

Although more than a scintilla of evidence may be sufficient to entitle a defendant to an

instruction on a lesser-included offense, Hall, 225 S.W.3d at 536, the evidence produced must be

   3
       See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).



                                                                  –11–
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 establishing a lesser-included offense also 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.” Cavazos,

382 S.W.3d at 385. We review a trial court’s decision to submit or deny a lesser-included

offense instruction for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex.

Crim. App. 2004). 4

                                                            Discussion

                                                      Aggravated Assault

          In his second issue, Simons contends the trial court abused its discretion by failing to

include an instruction in the jury charge on the lesser-included offense of aggravated assault. A

person commits assault when he “intentionally, knowingly, or recklessly causes bodily injury to

another.” TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2015). An assault becomes an

aggravated assault if the offender additionally “uses or exhibits a deadly weapon during the

commission of the assault.” Id. § 22.02(a)(2) (West 2011).

          According to Simons, if evidence at trial would permit a jury to find he intended to cause

serious bodily injury but did not intend to kill Quilter, he was entitled to a jury instruction of

aggravated assault. However, Simons’s own statements and testimony establish that he was not

entitled to an instruction on the lesser-included offense of aggravated assault. Simons testified


     4
       See also Jackson v. State, No. 05-12-01413-CR, 2014 WL 7476411, at *4 (Tex. App.—Dallas Dec. 31, 2014, pet. ref’d) (mem. op., not
designated for publication).



                                                                –12–
that shooting Quilter was unjustified; he intended to point the handgun at Quilter; he knew that if

one points a handgun at a person and pulls the trigger, it can cause death or serious bodily injury;

and he was reasonably certain that the handgun could cause Quilter’s death if he fired it at her.

Insofar as he knew the handgun could cause death, Simons acknowledged he knowingly caused

Quilter’s death when he fired the handgun at her. Simons stated to Stewart and Patton that he

shot Quilter “plain and simple.” Although Simons stated shooting Quilter was not something he

had been planning to do and was not intentional, he stated the second time he shot Quilter, it was

not an accident. In the 9-1-1 telephone call, Simons told the police dispatcher he meant to shoot

Quilter. 5

           Regardless of whether he intended to kill Quilter, Simons’s testimony shows he intended

to cause serious bodily injury to Quilter and that he committed an act clearly dangerous to human

life. See Jackson v. State, 115 S.W.3d 326, 330 (Tex. App.—Dallas 2003), aff’d 160 S.W.3d

568 (Tex. Crim. App. 2005); Smith v. State, 881 S.W.2d 727, 735 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d); see also Harrell v. State, 659 S.W.2d 825, 827 (Tex. Crim. App. 1983)

(appellant admitted shooting the deceased, but testified that he intended to hit the deceased in the

arm; under penal code section 19.02(a)(2), appellant intended to cause serious bodily injury to

the deceased and committed act clearly dangerous to human life that caused death of the

deceased; because evidence showed appellant guilty of murder, it did not constitute evidence he

was guilty of aggravated assault and it was not error to refuse charge on that offense). Because

Simons’s own statements and testimony establish he is at least guilty of murder under section

19.02(b)(2) of the penal code, the evidence would not permit a rational jury to find that if Simons

is guilty, he is guilty only of aggravated assault. Therefore, Simons was not entitled to an


     5
      Dyer testified a firearm is capable of inflicting death or serious bodily injury and it is clearly dangerous to life to fire a projectile into a
human body. According to Dyer, the second shot fired by Quilter could have been immediately fatal.



                                                                       –13–
instruction on aggravated assault and the trial court did not err by refusing to charge the jury on

that offense. See Jackson, 115 S.W.3d at 330–31; Jackson v. State, 992 S.W.2d 469, 475 (Tex.

Crim. App. 1999) (murder defendant is not entitled to an instruction on the lesser-included

offense of aggravated assault when the evidence showed him, at the least, to be guilty of a

homicide). 6

             We resolve Simons’s second issue against him.

                                                                  Manslaughter

             In his third issue, Simons contends the trial court abused its discretion by failing to

include an instruction in the jury charge on the lesser-included offense of manslaughter. Simons

was charged with murder under two definitions of that offense in the penal code: a person

commits the offense of murder if he (1) “intentionally or knowingly causes the death of an

individual,” or (2) “intends to cause serious bodily injury and commits an act clearly dangerous

to human life that causes the death of an individual.” See TEX. PENAL CODE ANN. § 19.02(b)(1),

(2) (West 2011); see also Rocha v. State, 648 S.W.2d 298, 301 (Tex. Crim. App. 1982 [Panel

Op.]) (op. on reh’g) (as relevant, the elements of murder were defined by section 19.02(b) of the

penal code as: “1) a person; 2) who intentionally or knowingly causes the death of an individual;

or 3) intends to cause serious bodily injury and commits an act clearly dangerous to human life

that causes the death of an individual”).

             “Culpable mental states are classified according to relative degrees, from highest to

lowest, as follows: (1) intentional; (2) knowing; (3) reckless; (4) criminal negligence.” TEX.

PENAL CODE ANN. § 6.02(d) (West 2011); 7 see also id. § 6.03(b) (West 2011) (person acts

knowingly with respect to the result of his conduct when he is aware his conduct is reasonably

     6
       See also Harris v. State, No. 05-03-00584-CR, 2004 WL 1447701, at *6 (Tex. App.—Dallas June 29, 2004, no pet.) (not designated for
publication).
     7
         “Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.” Id. at 6.02(e).



                                                                         –14–
certain to cause the result). While the culpable mental state for the offense of murder is

intentional or knowing conduct, the culpable mental state for the offense of manslaughter is

reckless conduct that causes another’s death. Id. § 19.04(a) (West 2011). Conduct is “reckless”

when the actor “is aware of but consciously disregards a substantial and unjustifiable risk that . . .

the result will occur.” Id. § 6.03(c).

       Here, to be entitled to an instruction on manslaughter, there must be some affirmative

evidence Simons did not intend to kill or cause serious bodily injury when he shot Quilter and

some affirmative evidence from which a rational juror could infer Simons was aware of but

consciously disregarded a substantial and unjustifiable risk that death would occur as a result of

his conduct. See id. §§ 19.02(b)(1) and 19.04(a). Simons testified that he intended to point the

handgun at Quilter. See Godsey v. State, 719 S.W.2d 578, 580 (Tex. Crim. App. 1986) (specific

intent to kill may be inferred from use of a deadly weapon); see also Cavazos, 382 S.W.3d at

384. He further testified he knew that if one points a handgun at a person and pulls the trigger, it

can cause death or serious bodily injury, and he was reasonably certain that his handgun could

cause Quilter’s death if he fired it at her. Simons testified that, insofar as he knew his handgun

could cause death, he knowingly caused Quilter’s death when he fired the handgun at her.

       Simons testified the first time he shot Quilter, it was accidental. However, Simons’s

statements to Stewart and Patton and to the police dispatcher in the 9-1-1 telephone call negate

recklessness. Simons also responded “yes” to the question at trial concerning whether he had

wrongfully shot Quilter in cold blood. Simons’s statements to the police dispatcher that he

intended to shoot Quilter and to Stewart and Patton that the second time he shot Quilter was not

an accident, and his response to questioning at trial that he had wrongfully shot Quilter in cold

blood, do not rationally support an inference that Simons acted recklessly at the moment he fired

the second shot which caused serious bodily injury to or death of Quilter. See Cavazos, 382

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S.W.3d at 385. Further, the evidence is undisputed that, at least with regard to the second time

he shot Quilter, Simons committed an act clearly dangerous to human life that caused Quilter’s

death. See TEX. PENAL CODE ANN. § 19.02(b)(2).

           Because the evidence did not establish manslaughter as a valid, rational alternative to the

charged offense, Simons was not entitled to the requested jury instruction on the lesser-included

offense of manslaughter. See Cavazos, 382 S.W.3d at 385. Simons failed to meet the second

step of the Aguilar/Rousseau test because there is no evidence that would permit a rational jury

to find that, if Simons is guilty, he is guilty only of the lesser offense of manslaughter. See id. at

386. We conclude the trial court did not abuse its discretion by refusing to instruct the jury on

the lesser-included offense of manslaughter. 8 We resolve Simons’s third issue against him.

                                                               Conclusion

           We have resolved Simons’s issues against him. Accordingly, we affirm the trial court’s

judgment.



                                                                           /Robert M. Fillmore/
                                                                           ROBERT M. FILLMORE
                                                                           JUSTICE




Do Not Publish
TEX. R. APP. P. 47.2(b)

150652F.U05




     8
       In his appellate brief, Simons states he “was not precluded from submission of sudden passion at punishment. The record supports the
submission of the lesser-included charge of manslaughter.” To the extent Simons is arguing the trial court should have instructed the jury on
manslaughter because there was evidence of sudden passion, we disagree. Sudden passion is not an element of manslaughter. See TEX. PENAL
CODE ANN. § 19.04. Rather, it is a basis for punishment mitigation at sentencing. Id. § 19.02(d); see also Castaneda v. State, Nos. 01-14-00389-
CR & 01-14-00390-CR, 2015 WL 6930466, at *6 (Tex. App.—Houston [1st Dist.] April 6, 2016, pet. ref’d) (mem. op., not designated for
publication).



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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

WILLIAM SIMONS, Appellant                             On Appeal from the 422nd Judicial District
                                                      Court, Kaufman County, Texas,
No. 05-15-00652-CR        V.                          Trial Court Cause No. 15-00125-422-F.
                                                      Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                          Justices Stoddart and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 16th day of May, 2016.




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