                               NUMBER 13-05-00709-CR

                               COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


JUAN CARLOS GUERRERO, JR.,                                                    Appellant,

                                              v.

THE STATE OF TEXAS,                                                           Appellee.


 On appeal from the 400th District Court of Fort Bend County, Texas.


                            MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Chief Justice Valdez

          A jury convicted appellant Juan Carlos Guerrero of capital murder of a child. See

TEX . PENAL CODE ANN . § 19.03(a)(8) (Vernon Supp. 2007). The trial court assessed the

automatic life sentence. Id. § 12.31(b). Appellant asserts nine issues on appeal. We

affirm.
                                     I. BACKGROUND

       On February 7, 2003, paramedics responded to a call that a three-year old child,

D.E., was unconscious and not breathing. When the paramedics arrived at the residence,

they were met by appellant and Angela Lucario, the child’s mother. As the paramedics

initiated emergency life-saving measures, they were told by appellant that D.E. sustained

his injuries by falling off the bed. The paramedics determined that D.E.’s injuries were

severe enough to warrant a life-flight request. D.E. was life-flighted to Houston, Texas,

where he arrived in a coma and, hours later, was pronounced dead.

       Ana Lisa Lopez, M.D., medical examiner for Harris County, conducted the autopsy.

Dr. Lopez found blunt force injuries to D.E.’s head and neck; multiple contusions or bruises

on the head and face; deep soft tissue hemorrhage below the right and left sides of the

scalp; subdural and subarachnoid hemmorage of the brain; and three bruises on his chest

and abdomen. Dr. Lopez concluded that D.E. died as a result of multiple blunt force

injuries that could not have been caused by his falling off a bed.

       Other evidence showed that at the time of this incident, appellant and Angela were

living with appellant’s mother and stepfather. D.E. was Angela’s son from a previous

relationship. Angela testified that appellant resented the fact that D.E’s father was a black

man. She testified that appellant would call D.E. a “bastard” and direct various racial slurs

towards him. Angela’s and appellant’s co-workers also testified that on various occasions

appellant demonstrated racially-based animosity towards D.E. and D.E.’s father. They

further testified to various incidents where appellant would angrily grab Angela either by

the neck or by her hair and exclaim “wait until we get home.” Their co-workers also

testified that on different occasions Angela would show up to work with either rings around

                                             2
her neck or a swollen black eye.

       On the day of the incident, Angela testified that appellant was upset because he had

found out that she had been writing to a black man whom she had dated in the past.

Angela testified that the argument became physical when appellant punched her in the

face. She stated that once she fell, she grabbed her stomach because she was pregnant

with appellant’s child. According to Angela, appellant stood over her and continuously

punched and kicked her.

       Sometime after this incident, appellant demanded that Angela give D.E. a bath.

Angela asked D.E. to sit with appellant while she gathered various items for his bath, but

D.E. began “whining because he did not want to go near [appellant.]” Angela testified that

appellant then grabbed D.E. by his arms and stated, “Come here, you little motherfucker.”

As D.E. tried to fight back, appellant started to punch him in his back. Angela testified that

she pleaded with appellant to stop, but he continued, and eventually began slamming

D.E.’s head against a wall. D.E., according to Angela, then “passed out,” and his “eyes

rolled back to his head.”

       After a jury trial, appellant was found guilty of capital murder. The trial court

assessed the automatic life sentence. This appeal ensued.

                            II. CRUEL AND UNUSUAL PUNISHMENT

       In his first issue, appellant asserts that the automatic life sentence mandated by

section 12.31(a) of the Texas Penal Code violates the Texas and United States




                                              3
constitutions.1 Specifically, appellant argues that it is “cruel and unusual” to impose a

mandatory sentence of such severity, without any consideration of any mitigating factors

such as, in his case, the fact that evidence exists that he may be mildly retarded. We

disagree.

         We first note that appellant’s “required mitigation” argument is not novel, and has

been rejected by the United States Supreme Court. See Harmelin v. Michigan, 501 U.S.

957, 995 (1991) (upholding a mandatory life without parole sentence for delivery of a

controlled substance). Furthermore, Texas courts have been consistent in upholding the

constitutionality of section 12.31(a)’s automatic life sentencing provision. See Smith v.

State, 187 S.W.3d 186, 194-95 (Tex. App.–Fort Worth 2006, pet. ref’d); Cinfuegos v. State,

113 S.W.3d 481, 495-96 (Tex. App.–Houston [1st Dist.] 2003, pet. ref’d); Barnes v. State,

56 S.W.3d 221, 239 (Tex. App.–Fort Worth 2001, pet. ref’d); Buhl v. State, 960 S.W.2d

927, 935-36 (Tex. App.–Waco 1998, pet. ref’d); Laird v. State, 933 S.W.2d 707, 714 (Tex.

App.–Houston [14th Dist.] 1996, pet. ref’d); Prater v. State, 903 S.W.2d 57, 59 (Tex.

App.–Fort Worth 1995, no pet.).

         Despite this uncontroverted authority, appellant argues that the Supreme Court’s

holding in Roper v. Simmons provides a basis to revisit this well-settled issue. 543 U.S.

         1
            Under Texas law, an autom atic life sentence is m andatory for a capital offense when the State does
not seek im position of the death penalty. See T EX . P EN AL C OD E A N N . § 12.31(a) (Vernon 2005); see also T EX .
C OD E C R IM . P R O C . A N N . art. 37.071, § 1 (Vernon 2006). These statutes have both been am ended to require
a life sentence without the possibility of parole. See T EX . P EN AL C OD E A N N . § 12.31(a) (Vernon 2005); T EX .
C OD E C R IM . P R O C . A N N . art. 37.071, § 1 (Vernon 2006).

         However, because at the tim e the offense took place, “life without parole” did not exist in Texas,
appellant would be eligible for parole after serving forty years. The United States Suprem e Court has already
rejected the argum ent that it is “cruel and unusual” to im pose a m andatory sentence of life im prisonm ent
without the possibility of parole. See Harmelin v. Michigan, 501 U.S. 957 (1991). Thus, a life sentence
including the eligibility for parole is even less likely to offend constitutional strictures. Indeed, the Harmelin
m ajority specifically pointed out that a life sentence “cannot be com pared with death.” Id.

                                                          4
551 (2005). In Roper, the Supreme Court determined that the Eighth and Fourteenth

Amendments prohibit the imposition of the death penalty on offenders who were under the

age of eighteen when their crimes were committed. id. at 578. Appellant argues that the

same consideration that supports the abolishment of the imposition of the death penalty

for those who are seventeen or younger supports the setting aside of an automatic life

sentence of a “young, retarded, brain damaged person such as appellant.” The Supreme

Court, however, has long distinguished between the death penalty and all other penalties,

holding:

         [t]he penalty of death differs from all other forms of criminal punishment, not
         in degree but in kind. It is unique in its total irrevocability. It is unique in its
         rejection of rehabilitation of the convict as a basic purpose of criminal justice.
         And it is unique, finally, in its absolute renunciation of all that is embodied in
         our concept of humanity.

Harmelin, 501 U.S. at 995-96 (quoting Furman v. Georgia, 408 U.S. 238 (1972) (Stewart,

J., concurring)). The Court added that it had “drawn the line of required individualized

sentencing” at death penalty cases, and saw “no basis for extending it further.” Id.

Because its holding is limited to the application of the death penalty, Roper is inapplicable

to the present case because here, appellant received a mandatory sentence of life

imprisonment. See Cienfuegos v. State, 113 S.W.3d 481, 495-96 (Tex. App.–Houston [1st

Dist.] 2003, pet. ref’d). Thus, we are unpersuaded by appellant’s request to revisit the

issue.

         Moreover, Texas courts have traditionally held that as long as the punishment is

within the range prescribed by the legislature, the punishment is not excessive, cruel, or

unusual. See e.g., Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.–Fort Worth 2001, no



                                                  5
pet.). Here, appellant received a punishment within the statutory range. See TEX . PENAL

CODE ANN . § 12.31(a) (Vernon Supp. 2007).

       Lastly, we recognize that the Simmons Court affirmed the seventeen-year-old

offender’s sentence of life imprisonment without parole. 543 U.S. at 560. Thus, to the

extent Simmons has any bearing on this issue at all, it suggests that life imprisonment of

a seventeen-year-old capital offender does not contravene the constitutional prohibitions

against cruel and usual punishment. Accordingly, we overrule appellant’s first issue.

          III. FAILURE TO APPOINT AN EXPERT , INVESTIGATOR , AND CO -COUNSEL

       In his second issue, appellant asserts that the trial court erred in refusing to provide

funding for an expert, an investigator, and co-counsel. We disagree.

                                          A. Expert

       Appellant first asserts that the trial court erred in refusing to provide funding for Kate

Allen, Ph.D., a family sociologist. Apparently, appellant intended to use Dr. Allen to

support his theory that because Angela suffered from a severe form of depression, she

was solely responsible for D.E.’s death. Although the trial court initially denied appellant’s

motion, the record shows that after two days of trial appellant urged the trial court to

reconsider, whereby the trial court agreed and granted appellant the requested funds to

retain Dr. Allen or, in the alternative, Susana Rosin, Ph.D. Indeed, after closing arguments,

appellant’s counsel acknowledged to the trial court that he had subpoenaed Dr. Rosin to

testify but decided not to call her until after the guilt/innocence stage of the trial. Thus,

appellant is clearly incorrect to the extent that he contends he was denied the means to

retain either Dr. Allen or Dr. Rosin. We find no error.



                                               6
                                       B. Investigator

        Appellant also contends the trial court erred in denying his request for an additional

investigator. Appellant, however, points to no authority which holds that a trial court is

constitutionally or statutorily required to appoint an investigator in non-death penalty capital

murder cases. Article 26.05(d) of the code of criminal procedure entitles court-appointed

counsel to reimbursement of investigative expenses. See TEX . CODE CRIM . PROC . ANN . art

26.05(d) (Vernon Supp. 2007). Here, appellant requested and was awarded $5,000 to

retain Pamela Stites as a mitigation specialist. At various pre-trial hearings, appellant

represented to the trial court that Stites had spent considerable time interviewing witnesses

and obtaining background information on appellant, including juvenile, school, and medical

records. At one point, appellant acknowledged to the trial court that “she has done an

excellent job in doing the investigation.” The record further shows that appellant requested

and was awarded an additional $3,000 so that Stites could continue her “investigative

assistance from the date of acceptance through the end of trial.” Based on this record, we

cannot agree with appellant’s contention that the trial court erred in refusing to fund an

additional investigator. See Shelton v. State, 462 S.W.2d 285, 286 (Tex. Crim. App. 1970);

Chamberlain v. State, 453 S.W.2d 490, 494 (Tex. Crim. App. 1970).

                                   C. Additional Counsel

        Appellant next contends that the trial court erred in denying his request for the

appointment of additional counsel. Code of criminal procedure article 26.052(e) provides

that:

        the presiding judge of the district court in which a capital felony case is filed
        shall appoint two attorneys, at least one of whom must be qualified under this


                                               7
       chapter, to represent an indigent defendant as soon as practicable after
       charges are filed, unless the state gives notice in writing that the state will not
       seek the death penalty.


Appellant was indicted on April 3, 2003. The State filed its notice not to seek the death

penalty on September 17, 2004. Thus, approximately 17 months occurred between the

time appellant was indicted and the time the State gave its written notice that it would not

seek the death penalty.      During that seventeen-month time period, appellant stood

accused of capital murder and the State had not filed a written notice that it would not seek

the death penalty, yet appellant was represented by a single attorney.

       A failure to comply with article 26.052 is susceptible to a harmless error analysis.

See TEX . R. APP. P. 44.2(b); Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000).

Although appellant was not represented by two attorneys during the seventeen month

period, he cannot show that the error affected his substantial rights.              The record

establishes that at all times the case proceeded and was tried as though the State had

waived the death penalty immediately upon filing the capital charges against appellant.

Moreover, appellant’s trial counsel filed many motions and took other actions on his behalf.

See Kirk v. State, 199 S.W.3d 467, 472-73 (Tex. App.–Fort Worth 2006, pet. ref’d). Thus,

appellant has failed to demonstrate that the trial court’s failure to appoint a second attorney

has affected his substantial rights. See id.

       Appellant’s second issue is overruled.

                                 IV. ADMISSION OF EVIDENCE

       In his next two issues, appellant claims the trial court erred in admitting evidence of

extraneous acts/offenses. For each issue, appellant asserts a violation of Texas Rules of


                                               8
Evidence 404(b) and 403. See TEX . R. EVID . 403, 404(b).

                        A. Preserving a Complaint for Review

       To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion. TEX .

R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op.

on reh’g). A motion in limine will not, by itself, preserve a complaint for appellate review.

See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Jaynes v. State, 216

S.W.3d 839, 850 (Tex. App.–Corpus Christi 2006, no pet.).

       At trial, an objection must be made as soon as the basis for the objection becomes

apparent. TEX . R. EVID . 103(a)(1); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App.

1997); Polk v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). An initial objection

does not, however, relieve a party’s responsibility in preserving complaints for appellate

review. Texas law is clear in its requirement that a party must continuously object each

time inadmissible evidence is offered, with two exceptions. See Martinez v. State, 98

S.W.3d 189, 193 (Tex. Crim. App. 2003); Ethington v. State, 819 S.W.2d 854, 858-59

(Tex. Crim. App. 1991). A party need not continuously object where it obtains a running

objection or requests a hearing outside the presence of the jury. See Martinez, 98 S.W.3d

at 193. But one objection, without a requested running objection or a hearing outside the

presence of the jury, is insufficient to preserve an issue for appellate review where further

evidence on the same subject comes in without objection. See id.; Montgomery v. State,

198 S.W.3d 67, 81 (Tex. App.–Fort Woth 2006, pet. ref’d).



                                             9
                                   B. Racist Statements

       In his third issue, appellant contends the trial court erred by allowing various

witnesses to testify about racist statements he allegedly made in the past. An objection

must be made under both rules 404(b) and 403 to preserve error regarding the admission

of evidence of extraneous bad acts. Montgomery, 810 S.W.2d at 388. Here, appellant

failed to make a rule 404(b) or a rule 403 objection to the complained of testimony.

Moreover, the record reveals that appellant failed to object to the introduction of two letters

written by appellant to Angela that also contained racist statements. Thus, appellant has

forfeited his complaint that this evidence violated rule 404(b) and rule 403. See TEX . R.

APP. P. 33.1(a). Appellant’s third issue is overruled.

                            C. Extraneous Assault Offenses

       In his fourth issue, appellant complains that the trial court erred in allowing

witnesses to testify that appellant had assaulted Angela during their relationship. Here, the

record shows that appellant objected at various stages of the trial to the introduction of this

testimony; however, as the State correctly points out, appellant’s objections were sporadic,

objecting to the introduction of certain physical altercations between appellant and Angela,

while failing to object to others. For example, Marcus Richards, appellant’s and Angela’s

co-worker, testified to an incident that occurred at their place of employment. According

to Richards, he saw appellant chase Angela, grab her by her hair, and drag her out of the

building. Appellant failed to object to the introduction of this testimony.

       On the other hand, Randy Ransom, also a co-worker, testified to a similar incident

that also occurred at their place of employment. Ransom testified that he saw appellant



                                              10
grab Angela by the back of the neck and exclaim “wait until we get home.” The record

shows that appellant made an initial objection to this testimony, but failed to re-assert his

objection as the State continued to inquire about the incident in question.

       Likewise, Angela testified that appellant had previously threatened to kill her, that

appellant would “beat the hell out of her,” and that on the day in question, appellant

punched her in the face and kicked her in the back. Again, appellant initially objected to

the introduction of this evidence but failed to re-assert his objection or obtain a running

objection to the State’s subsequent questions regarding the same instances of physical

abuse.

       As noted above, after the trial court overruled appellant’s objections, a request for

running objections or a hearing on the issue outside the presence of the jury would have

preserved this alleged error for review by this court. See Martinez, 98 S.W.3d at 193. The

absence of these requests and lack of continuous objections to the State’s subsequent

inquiries about the alleged assaults, however, forfeits the issue on appeal. See id.;

Montgomery, 198 S.W.3d at 81. Appellant’s fourth issue is overruled.

                                V. EXCLUSION OF EVIDENCE

       Appellant’s fifth, sixth, and seventh issues are properly categorized as challenges

to the exclusion of particular pieces of evidence. We review a trial court’s exclusion of

evidence for an abuse of discretion. Gordon v. State, 191 S.W.3d 721, 727 (Tex.

App.–Houston [14th Dist.] 2006, no pet.) (citing Martin v. State, 173 S.W.3d 463, 467 (Tex.

Crim. App. 2005)). A trial court abuses its discretion when its decision is so clearly wrong

as to lie outside the zone within which reasonable persons might disagree. McDonald v.



                                             11
State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

                       A. Evidence of Angela’s Violent Temper

       In his fifth issue, appellant asserts the trial court improperly refused to admit

evidence of Angela’s violent temper. Appellant’s argument is not entirely clear. Apparently

appellant contends that he was entitled to present evidence of Angela’s assaultive behavior

to rebut her testimony that she used isolation techniques to control her anger. At trial,

appellant advanced rule 613(b) as his theory of admissibility but, on appeal, fails to even

mention that rule. Rather, appellant generally cites rule 404(b) and rule 107 as his basis

for admissibility. Because appellant did not advance these theories to the trial court, he

has not preserved error on appeal. See TEX . R. APP. P. 33.1; State v. Bailey, 201 S.W.3d

739, 743 (Tex. Crim. App. 2006) (an appellate court may not reverse a trial court’s decision

on a legal theory that was not presented to the trial court). Appellant’s fifth issue is

overruled.

                                 B. Hearsay Objection

       By his sixth issue, appellant contends the trial court improperly refused to admit

hearsay statements allegedly made by Angela and offered through the testimony of Rosie

Martinez and Cynthia Montoya. Both witnesses testified outside the presence of the jury.

       Martinez testified that the day after D.E. was killed she went to appellant’s

residence, and while looking through various items she came across a letter written from

Angela to appellant. The letter, according to Martinez, contained a statement that Angela’s

mother had tried to take D.E. away from her, and that she would “rather see D.E. dead

than for her mother to have him.” Montoya, appellant’s cousin, also testified that she once



                                            12
overheard Angela make a similar comment. The record shows that appellant sought to

introduce the statement as a statement against interest under Texas Rules of Evidence

803(24) and under rule 803(3) as Angela’s then existing state of mind. See TEX . R. EVID .

803(3), 803(24).2

                                   1. Statement Against Interest

        A statement against interest must be against the declarant’s pecuniary interest; or

subject him to civil or criminal liability; or render invalid a claim by him against another; or

make the declarant an object of hatred, ridicule, or disgrace, at the time of its making such

that a reasonable man in his position would not have made the statement unless he

believed it to be true. TEX . R. EVID . 803(24).

        We first note that appellant failed to argue to the trial court on which of the above

categories he relies.         Moreover, cases interpreting rule 803(24) have stated that

corroborating circumstances must be shown that prove the trustworthiness of the

statement, and the party seeking the admission has the burden to make this necessary

showing. See Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994); Manley v.

State, 28 S.W.3d 170, 175 (Tex. App. Texarkana 2000, pet. ref’d). In order to determine

if the necessary corroboration has been shown, a trial court should consider a number of


        2
           On appeal, appellant also argues that the exclusion of these statem ents denied him his due process
right to support his defensive theory. In support, appellant cites Alonzo v. State, 67 S.W .3d 346 (Tex.
App–W aco 2001, pet. dism’d as improvidently granted), 158 S.W .3d 515 (Tex. Crim . App. 2005), where the
court held the trial court erred in excluding evidence tending to show the m urder was com m itted by som eone
other than the defendant. Id. at 356. In the present case, the evidence concerns hearsay, not som eone who
was actually present at the tim e of the m urder. In Alonzo, the trustworthiness of the witness was also
evidenced by his knowledge of details that only an eyewitness m ight know, while the testim ony of the two
witnesses in the present case are m ere general statem ents which are not com parable to the excluded
eyewitness statem ent in Alonzo. Thus, to the extent appellant argues that he was denied his due process
right to support his defensive theory, we disagree. See Stevens v. State, 234 S.W .3d 748, 787-88 (Tex.
App.–Fort W orth 2007, no pet.).

                                                     13
factors: (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant,

(2) whether the declarant was so situated that he might have committed the crime, (3) the

timing of the declaration, (4) spontaneity of the declaration, (5) the relationship between

the declarant and the party to whom the statement was made, and (6) the existence of

independent corroborative facts. Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App.

1999). Appellant also failed to argue any corroborating circumstances to the trial court.

The record merely shows that an objection was made, and appellant merely declared that

it was a statement against interest. This mere declaration does not satisfy the requirement

that corroborating circumstances must show trustworthiness, and we cannot find that the

trial court abused its discretion by excluding the evidence. Manley, 28 S.W.3d at 175.

                                      2. State of Mind

       The record further indicates that appellant also sought to introduce the statement

as Angela’s then existing mental or emotional state of mind; a hearsay exception under

rule 803(3) of the Texas Rules of Evidence. See TEX . R. EVID . 803(3). On appeal,

however, appellant provides no substantive legal analysis, argument, or authority to

support his contention. As such, his point is inadequately briefed and presents nothing for

review.   Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000) (explaining that

arguments that fails to cite to authority in support of claim present nothing for review);

Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997) (concluding that court could

not adequately evaluate issue without substantive argument or supporting authorities).

       Appellant’s sixth issue is overruled.




                                               14
                                    C. Written Letters

       By his seventh issue, appellant argues the trial court erred in excluding two letters

written by appellant to Angela.      On appeal, appellant puts forth three theories of

admissibility: (1) the state of mind hearsay exception; (2) rehabilitation under rule 806 of

the Texas Rules of Evidence, and (3) the rule of optional completeness. Again, in order

to present a complaint for appellate review, the record must show that the complaint was

made to the trial court by a timely and specific request, objection, or motion, and that the

trial court ruled on the request, objection or motion. TEX . R. APP. P. 33.1; Wilson v. State,

71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Further, the error alleged on appeal must

correspond to the legal theory advanced at trial.        See Bailey, 201 S.W.3d at 743

(concluding that an appellate court may not reverse a trial court’s decision on a legal theory

that was not presented to the trial court). The record here shows that appellant’s argument

of admissibility at trial was based solely on rule 803(3), the state of mind exception.

Because appellant neither advanced a rule 806 argument or optional completeness

argument to the trial court, he has not properly preserved error on appeal with regard to

those theories.

       Moreover, at no point has appellant explained, either to the trial court or here on

appeal, how the letters fall within the state of mind exception. Indeed, his argument on

appeal is a single sentence, it is conclusory, and it fails to contain a citation to a single

authority. Because appellant offers no analysis or argument in support of his contention,

we conclude that this point is inadequately briefed. See TEX . R. APP. P. 38.1(h).

       Appellant’s seventh issue is overruled.



                                             15
                               VI. LESSER INCLUDED OFFENSE

       In his eighth issue, appellant argues the trial court erred in denying his request for

a jury instruction on the lesser included offense of criminally negligent homicide. Appellant

claims the record contains evidence from which the jury could reasonably determine that

D.E’s death was caused by his negligent conduct. We disagree.

       A defendant is entitled to a charge on a lesser included offense if: (1) the offense

is a lesser-included offense of the alleged offense, and (2) some evidence is adduced at

trial to support such an instruction. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.

2007). The first step in the lesser-included offense analysis is a question of law, which

does not depend on the evidence to be produced at trial. Id. A determination of whether

an offense is a lesser-included offense “may be, and to provide notice to the defendant

must be, capable of being performed before trial by comparing the elements of the offense

as they are alleged in the indictment or information with the elements of the potential

lesser-included offense.” Id. at 535-36.

       “The second step in the analysis should ask whether there is evidence that supports

giving the instruction to the jury.” Id. at 536. A defendant is entitled to an instruction on

a lesser-included offense if the proof for the charged offense includes the proof necessary

to establish the lesser-included offense and there is some evidence in the record that

would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the

lesser-included offense. Id. “In this step of the analysis, anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a lesser-charge.” Id. “In other words,

the evidence must establish the lesser-included offense as ‘a valid, rational alternative to



                                              16
the charged offense.’” Id.

       The court of criminal appeals has recognized that manslaughter and criminally

negligent homicide are both lesser-included offenses of capital murder. Cardenas v. State,

30 S.W.3d 384, 392-93 (Tex. Crim. App. 2000). Therefore, we next consider whether there

was evidence adduced at trial that supported giving the instruction to the jury. See Hall,

225 S.W.3d at 536.

       A person commits the offense of criminally negligent homicide if he causes the

death of an individual by criminal negligence. TEX . PENAL CODE ANN . § 19.05(a) (Vernon

2003). Like manslaughter, criminally negligent homicide requires the existence of conduct

that creates a substantial and unjustifiable risk of death. See Saunders v. State, 913

S.W.2d 564, 572 (Tex. Crim. App. 1995). In manslaughter, however, the defendant must

be aware of the risk and consciously disregard it. Id. In criminally negligent homicide, the

jury must find that “though [the defendant] ought to have been aware of the risk, he was

not.” Id.

       To support his claim that the jury should have been charged on the offense of

criminally negligent homicide, appellant relies on the following: (1) Angela testified that she

never thought appellant would murder D.E.; (2) appellant played with D.E. and talked to

him; (3) Angela would leave D.E. with appellant when she went to work; (4) Angela testified

that the assault happened very fast; (5) Angela was surprised when it happened and it

appeared that appellant “just snapped;” and (6) appellant’s family testified that they never

saw appellant verbally or physically abuse D.E..

       This evidence is not proof that appellant negligently engaged in conduct which



                                              17
placed D.E. at risk of serious bodily injury or death. On the contrary, the above evidence

indicates that appellant knew how to care for D.E. and he cared for him on a regular basis

while Angela was at work. Moreover, the statement that appellant “snapped” does not

amount to evidence that appellant was criminally negligent. See Cardenas v. State, 30

S.W.3d 384, 392 (Tex. Crim. App. 2000) (concluding that a defendant’s claim that he “lost

it” does not negate the intent to kill). Furthermore, given the medical evidence detailing the

manner in which D.E. died, the jury could not have found that if appellant was guilty, he

was guilty of only negligently causing D.E.’s death.3 The evidence does not entitle

appellant to an instruction on criminally negligent homicide. Appellant’s eighth issue is

overruled.

                                 VII. PROSECUTORIAL MISCONDUCT

        As his final issue, appellant asserts the State engaged in prosecutorial misconduct.

Appellant alleges that Angela committed perjury during the trial on the merits, the

prosecutor was aware of the perjured testimony, and the prosecutor did nothing to correct

the false testimony.

        In order to preserve error in cases of prosecutorial misconduct, the defendant must

(1) make a timely and specific objection; (2) request an instruction that the jury disregard

the matter improperly placed before the jury; and (3) move for a mistrial. See Penry v.

State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Montoya v. State, 43 S.W.3d 568, 572

(Tex. App.–Waco 2001, no pet.). Regarding specificity, a party should “let the trial judge


        3
           Moreover, crim inally negligent hom icide is a lesser included offense of both capital m urder and
m anslaughter. Because the jury was instructed on – and rejected – the standard of m anslaughter, any error
in not charging the jury on crim inally negligent hom icide was harm less. See Saunders v. State, 913 S.W .2d
564, 571 (Tex. Crim . App. 1995).

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know what he wants, why he thinks himself entitled to it, and to do so clearly enough for

the judge to understand him at a time when the court is in proper position to do something

about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

       Appellant did not object in the trial court on the grounds of prosecutorial misconduct,

nor did he receive an adverse ruling on such an objection. Appellant did not seek an

instruction that the jury disregard any false testimony that may have been admitted, nor did

appellant seek a mistrial based on any alleged prosecutorial misconduct. Thus, appellant

failed to preserve any error for appeal. See TEX . R. APP. P. 33.1; Penry, 903 S.W.2d at

764.

       Appellants ninth issue is overruled.

                                     VIII. CONCLUSION

       Having overruled all of appellant’s issues on appeal, we affirm the judgment.




                                   /s/ ROGELIO VALDEZ
                                   ROGELIO VALDEZ
                                   Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 13th day of March, 2008.




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