Opinion issued April 20, 2017




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-15-00393-CR
                           ———————————
            CHRISTOPHER ERNEST BRAUGHTON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 228th District Court
                           Harris County, Texas
                       Trial Court Case No. 1389139


                         OPINION ON REHEARING

      We issued our original opinion in this case on December 29, 2016.

Appellant, Christopher Braughton, filed a motion for rehearing. We overrule the

motion for rehearing, withdraw our previous opinion, and issue this substitute

opinion. The disposition remains the same.
      Chris Braughton, age 21, shot Emmanuel Dominguez, age 27, on the street

outside Chris’s parents’ home at approximately 10:00 p.m. The shooting followed

an episode of road rage between Dominguez and Chris’s father, Christopher

Braughton Sr., age 40, while Braughton Sr. was driving home with his wife and

other son, age 13. According to the statement of Chris’s mother, Dominguez “cut

us off and then pulled up beside us and followed us home.” Although many of the

events after that point are disputed, it is undisputed that Dominguez and Braughton

Sr. engaged in a physical altercation in which Dominguez punched Braughton Sr.,

that Chris ran out of the house brandishing a gun in an attempt to protect his father,

and that the fight stopped at least momentarily when Dominguez knocked

Braughton Sr. to the ground and Chris first spoke. The evidence is mixed on

whether Dominguez said he had a gun, but the evidence is undisputed that no gun

was found on Dominguez or within his reach and that Chris aimed his gun at

Dominguez and shot him once, killing him.

      A jury found Chris guilty of murder and assessed his punishment at 20

years’ confinement.1 In three issues, Chris argues that (1) the evidence is legally

insufficient to establish that he had the required mental state to commit murder;

(2) the evidence is legally insufficient to reject his claims of self-defense and

defense of others; and (3) the trial court committed reversible error by denying his


1
      See TEX. PENAL CODE § 19.02(b)(1)–(2).
                                          2
request to provide an instruction in the jury charge on the lesser-included offense

of deadly conduct.

      We affirm.

                                    Background

A.    The Braughton family encounters Dominguez

      Emmanuel Dominguez, the complainant, was a United States Marine,

preparing to leave the Marine Corps and using up his vacation time until his

discharge. In early May 2013, Dominguez moved to Spring, Texas and rented a

house with his girlfriend, Jessica Cavender, who was also a United States Marine

and had recently been assigned as a recruiter in Conroe, Texas. Their house was on

Greenland Oak Court.

      On May 24, 2013, Dominguez and Cavender went to a restaurant, where

they ate, drank beer, and socialized. While there, they met another Marine who

invited them to an icehouse, where they continued drinking. Sometime later, yet

another veteran invited them to a karaoke bar, where they continued socializing

and drinking. While at the karaoke bar, Dominguez and Cavender got into a verbal

disagreement, and Cavender refused to accompany him to their home. Dominguez,

who was intoxicated, left alone on his motorcycle.2



2
      At the time of his death, Dominguez had a blood alcohol concentration of 0.17
      grams per deciliter, which is more than twice the statutory limit of 0.08 grams per
                                           3
      That same evening, Chris’s father (“Braughton Sr.”), mother (“Mrs.

Braughton”), and younger brother were dining out while Chris, age 21, stayed

home at his parents’ house. The Braughtons, like Dominguez, lived on Greenland

Oak Court, but Chris had never met Dominguez. After dinner, at approximately

10:00 p.m., Braughton Sr. began driving home, with Mrs. Braughton and their

younger son riding in the family vehicle.

      Braughton Sr. testified that, as they were nearing their home, he was driving

approximately 15 to 18 miles per hour in an area with a 20-mile-per-hour speed

limit when he saw a “big bright light” immediately behind his vehicle. He testified

that he then heard “a really loud revving sound,” and then a vehicle alarm alerted

that there was an object very close to the vehicle’s rear bumper. He determined

from the light, the engine sound, and the vehicle’s alarm that a motorcycle was

very close behind his car.

      According to Braughton Sr., Dominguez, who was driving the motorcycle,

came around the side of the car, “tried to swerve into the side of the car,” then

came around the front of the car and “slam[med] on his brakes.” The vehicle’s

proximity sensors again sounded. Braughton Sr. “slam[med]” on his own brakes to

avoid hitting the motorcycle, then sped around the motorcycle and continued



      deciliter for driving while intoxicated. See TEX. PENAL CODE §§ 49.01(2)(B),
      49.04(a).
                                            4
heading home. Dominguez followed the Braughton family onto Greenland Oak

Court, where, unknown to either driver, they both lived.

       As the Braughtons approached their house in their vehicle, Mrs. Braughton

called Chris and told him they were being chased. Braughton Sr. testified that his

wife said, “Son, there’s a guy chasing us. I’m scared,” while Mrs. Braughton

recalled saying, “Son, this guy is chasing us. We are right by the house.” The call

lasted less than seven seconds, and Mrs. Braughton did not tell Chris to come

outside, arm himself, or indeed to do anything at all. Braughton Sr. and Mrs.

Braughton testified that they believed that Dominguez was attempting to rob or

carjack them. No one, however, called either 9-1-1 or a non-emergency police line

at that time.

       According to Braughton Sr., the motorcycle “start[ed] coming around the

car” again and blocked the Braughtons’ driveway. Braughton Sr. drove around the

cul-de-sac at the end of Greenland Oak Court, stopping on the opposite side of the

street from his home. Dominguez stopped his motorcycle near the driveway to the

home of Robert Bannon, who lived in the home between the Braughton residence

and the house rented by Dominguez. Bannon, who was sitting in his driveway at

the time, noticed that the motorcycle was only one or two feet away from the

Braughtons’ car and “thought [Dominguez] didn’t know how to drive a motorcycle

because he looked like he was kind of wobbling.” Dominguez dismounted or fell


                                         5
off the motorcycle without engaging the kickstand, and then he either threw down

the motorcycle or let it fall to its side in the street.

B.     Braughton Sr. and Dominguez confront each other

       According to Glen Irving, a neighbor who witnessed the events, Dominguez

“rather quickly” approached the Braughtons’ car, and Braughton Sr. got out of his

vehicle. But according to Bannon, Braughton Sr. “quickly” got out of the car and

“immediately yelled” at Dominguez, demanding to know, “Why the f___ you

following me so close for?” Both Bannon and Irving testified that the two men

yelled and swore at each other. Irving also testified that Dominguez began

punching Braughton Sr. in his face and “beating him up,” while Braughton Sr.

attempted to defend himself.

       Braughton Sr. testified that, while these events were unfolding, he was

yelling to his wife, “Get inside,” and, “Call 9-1-1,” at which point Dominguez

began punching him. Braughton Sr. testified that Dominguez hit him two or three

times. Dominguez then knocked Braughton Sr. to the ground. This altercation

occurred closer to the motorcycle than to the Braughtons’ car.3

       Meanwhile, Chris, who was inside the Braughtons’ home, had run to the

front door and heard a “loud motorcycle noise.” He went to his parents’ bedroom,

3
       Two independent witnesses, Bannon and “Gina” (a pseudonym, as stated in note
       4, infra), did not see any physical fight between Braughton Sr. and Dominguez. A
       photograph taken by police showed Braughton Sr. with a bloody lip.

                                              6
where he kept a 9-millimeter handgun that he had purchased approximately three

months earlier. He retrieved the gun and the magazine, which was kept separately,

inserted the magazine into the gun, and pulled back the slide to chamber a bullet.

At this point, according to Chris, the safety mechanism on the gun was disengaged

and the gun was ready to fire.

      During the altercation between Dominguez and Braughton Sr., Chris came

out of his parents’ house with the loaded gun, saw Dominguez hitting Braughton

Sr., and said two or three times, “I have a gun,” or, “Stop, I have a gun.” Chris

testified that, when he left the house, he had not seen or heard that anyone outside

had a weapon of any kind and did not know who had started the fight. There is no

evidence in the record that Chris knew that a physical fight was underway before

he left the house with a gun. And Chris conceded at trial that the fight was closer to

the motorcycle than to the car, indicating that his father had moved farther than had

Dominguez. Braughton Sr. did not see Chris exit the house; rather, he first saw him

when Chris was three feet away from Dominguez, pointing the gun at Dominguez.

According to Mrs. Braughton’s sworn statement, she said around this time, “Chris,

go, you know, take the gun inside. Take the gun inside.”

C.    Dominguez reacts to the gun

      Witnesses at trial gave conflicting accounts of what happened next. Chris,

Braughton Sr., Mrs. Braughton, and Irving all testified that Dominguez then


                                          7
verbally responded to Chris and either moved toward or reached into the

saddlebags on the motorcycle. The details of their testimony, however—whether

Dominguez indicated that he had a gun and whether he actually reached his

motorcycle, which was some unspecified distance away from the fight—conflicted.

Specifically, Chris testified that Dominguez said, “Oh, you have a gun,

m_____f_____. I have a gun for you,” then reached into a saddlebag on the

motorcycle. He later testified, however, that Dominguez used the word

“something,” not “a gun.”

      According to Braughton Sr., Dominguez “reache[d] down and he [said],

‘You got a gun, m_____f_____, I have something for your f______ a__.’”

Elsewhere in his testimony, however, Braughton Sr. recalled that Dominguez said

“gun,” not “something.” Braughton Sr. specifically testified that Dominguez

“reache[d] in[to]” the saddlebag before he was shot.

      Mrs. Braughton testified that Dominguez “reache[d] towards his bike, the

boxes on his bike,” and quoted him as saying, “You have a gun, m_____f_____. I

have something for your a__.” Elsewhere in her testimony, she reported the second

sentence as, “I have a gun for your a__.” She also testified that she saw Dominguez

reaching toward his motorcycle while she was running into her home.

      Neighbor Irving testified that Dominguez “turned and started back towards

the motorcycle, and [Irving] heard a voice say, ‘Yeah, I got a gun, too . . . .’” When


                                          8
pressed to “recall exactly what [he] heard,” Irving said that he heard either “I got a

gun, too,” or possibly, “I’ve got something for you . . . .” He testified that he could

not “say 100 percent positively” which statement he heard. Although Irving

testified that Dominguez moved toward the motorcycle, he did not see Dominguez

reach into the saddlebags. He testified that, if Dominguez had done so, he “should

have been able to see it” from his vantage point, but he could not “say positively

that [he] would have seen it.”

      Chris testified that Dominguez was positioned with the saddlebag to his left,

reached across his body with his right arm, turning as he did so, and began to

straighten up. Similarly, Braughton Sr. testified that Dominguez reached toward a

saddlebag on the motorcycle, “just grab[bed] the box and open[ed] it,” then

reached into it.

      Gina,4 a high-school junior who also lived on Greenland Oak Court, testified

with a different account. Gina watched events unfold from her second-story

bedroom window in a house across the street. Gina testified that she could not see

many details of the scene “clearly” because a light-blocking screen on her window

made her view of the street “blurry.” She could not see faces clearly and did not

see a gun, but testified that she heard Mrs. Braughton tell Chris, “Put the gun

down.” Gina further testified that, instead of complying, Chris replied, “No, I got a

4
      Because the witness was a minor at the time of the shooting, we use a pseudonym.

                                          9
gun now,” and walked toward Dominguez, who “stopped and put his hands up”

and “slowly back[ed] up.” Gina physically demonstrated the shooting at trial on

direct examination, but the record does not reflect any testimony regarding the

orientation of Dominguez’s body with respect to either Chris or Chris’s gun.5 Gina

did not see Dominguez approach the motorcycle, open a saddlebag, or reach for

anything.

D.    Chris kills Dominguez

      The remaining sequence of events is undisputed. Chris testified that he

“pointed [the gun] towards [Dominguez’s] arm” without “aiming at a specific area

on him” and pulled the trigger. He shot Dominguez one time. The bullet hit

Dominguez under his right armpit, toward the back of his body. It traveled right to

left, “very slightly upward,” and “slightly back to front,” puncturing both of

Dominguez’s lungs and damaging his “aorta, the major artery coming out from the

heart,” resulting in the loss of at least three liters of blood. The medical examiner

who later examined Dominguez, Dr. Morna Gonsoulin, testified that such injuries

can kill a person “within seconds.”




5
      Chris argues that Gina’s testimony “can only be read to say that Dominguez was
      facing [Chris] when the shot was fired,” but she did not expressly give such
      testimony. The State acknowledges that Dominguez must have turned before he
      was shot. No witness expressly stated that Dominguez was facing Chris when or
      just before he was shot.
                                         10
      Dominguez fell to the ground. According to Gina, Mrs. Braughton then said

to Chris, “What did you do?”

      Mrs. Braughton dialed 9-1-1 on her cell phone and handed the phone over to

Braughton Sr., who talked to dispatch. Braughton Sr. explained several times

during the call that a man had chased his family and attacked him and that his

son—that is, Chris—shot the attacker. He did not mention any verbal threats by

Dominguez, nor did he say that anyone feared a carjacking or robbery at any time.

Although Mrs. Braughton and Bannon attempted to perform CPR, Dominguez died

on the scene. Chris placed the gun in the house, waited for the police, and

identified himself as the shooter to police when they arrived at the scene.

      The investigating officers took statements from a number of witnesses,

including Gina. The officers made an audio recording of their interview with Gina.

Sergeant A. Alanis of the Harris County Sheriff’s Office testified that he attempted

to take statements from Braughton Sr. and Mrs. Braughton, but both declined to

give statements. Braughton Sr. testified that he attempted to write a statement, but

an officer took away the clipboard that he was writing on. Mrs. Braughton gave a

written statement in which she wrote that Dominguez “trie[d] to pull something out

of his box on his bike” but did not mention any threats by Dominguez. At the time

of the shooting, officers did not identify Irving as a witness.




                                          11
E.    Evidence at trial

      The State charged Chris with murder. At trial, Gina testified that she did not

have a relationship with or know the names of any of the individuals involved,

although she recognized them as her neighbors and was able to associate them with

their respective homes. She identified the participants by the color of the clothing

that they wore on the night in question and their respective genders. Using those

descriptions, she testified that she saw Braughton Sr. and Dominguez arguing

when Chris came from the direction of the Braughtons’ house “with his right arm

stretched out with a gun in his hand.” She testified that Chris “just walk[ed]

straight to [Dominguez] and then he stop[ped].” Gina stated that Dominguez was

backing up with his arms raised when Chris shot him.

      Gina confirmed that her memory of events “would be better whenever I

made the statement” to police on the night of the shooting than at trial and that

everything she had said in her statement was true and correct. Her statement was

admitted into evidence and played for the jury. In it, as at trial, she described the

participants in the confrontation by clothing and gender, though she stated that the

person in black—that is, Chris—argued and engaged in a shoving match with the

person in red—that is, Dominguez. She stated that the person in black had a gun

and shot the person in red one time. At trial, she testified that she had misspoken




                                         12
and that the person in orange—that is, Braughton Sr.—was the person who had

argued with Dominguez.

      The State also presented testimony by Bannon, who testified that he did not

“see anyone throw a punch or kick at each other,” though he was “maybe 20 feet

away” from the confrontation and had “a good view” of both men. Rather, he

testified that Braughton Sr. and Dominguez were “[j]ust yelling.” Bannon heard

Chris say, “I have a gun,” then heard a woman, possibly Mrs. Braughton, say,

“‘We’re recording you,’ or ‘We’re recording this.’” He testified that he “thought

there was a fight about to break out” at the moment when Chris came out of the

house. When Bannon saw that Chris had a gun, he went into his home to retrieve a

rifle to “try to [defuse] the situation [and] have [Chris] put his gun down.” He

testified that he neither saw nor heard the shot being fired. By the time Bannon

returned to his front door, Dominguez was lying on the ground, so Bannon went

outside without the rifle.

      The State called three investigating law enforcement officers: Corporal J.

Talbert of the Constable’s Office, Precinct 4; Sergeant Alanis; and Harris County

Sheriff’s Deputy D. Medina. All three had responded to the scene of the shooting.

Corporal Talbert authenticated several photographs as fair and accurate

representations of the scene as it appeared when he arrived. Several of these

photographs show one of the two saddlebags on Dominguez’s motorcycle open.


                                       13
Deputy Medina testified that she found no gun or other weapons on Dominguez’s

person or in his saddlebags but that one of the saddlebags was open when she

arrived on the scene.

      Corporal Talbert specifically noted “a cell phone . . . towards the middle of

the cul-de-sac.” He testified, “Somebody tried to pick up the cell phone that was in

the cul-de-sac” but he “told them to leave it where it was.” Sergeant Alanis also

testified that law enforcement collected a cell phone in the cul-de-sac and that he

“was advised it was the defendant’s father’s.” He also testified, “The father

requested the phone back, and I told him it was going to be evidence until it was

downloaded.” By the time Alanis attempted to search the phone, it “had been

wiped” and “appeared like when you buy a brand new phone.” Alanis was not able

to recover any information from the phone.

      Dr. Gonsoulin, the assistant medical examiner who conducted Dominguez’s

autopsy, testified that Dominguez died from a single gunshot wound and that the

path of the bullet went “basically from the right armpit to the left armpit.” For the

bullet to follow its trajectory, Dominguez had to have exposed his right armpit and

had his left side slightly lower than the right when he was shot. According to Dr.

Gonsoulin, this meant that Dominguez could have been shot while bending,

reaching, or extending his right arm across his body toward his left side. She

testified that the gun could not have been “straight ahead pointing” at Dominguez’s


                                         14
chest. Dominguez could have been shot while turning, but it was “impossible” for

him to be “shot facing the shooter with his arms up.” She also testified, however,

that in general reaching down and across the body would not sufficiently expose

the armpit, explaining, “There might be an angle where you could just be reaching

down and [the wound area] would be exposed, but you would have to at least

extend your shoulders slightly to get the differential in the arms.” Dr. Gonsoulin’s

testimony was supported by photographic evidence showing that the gunshot

wound was under Dominguez’s right arm, an X-ray image showing the bullet

inside the left side of Dominguez’s chest, and the autopsy report describing the

bullet’s trajectory.

       The State presented further testimony. Harris County Sheriff’s Deputy F.

Williams testified that he unsuccessfully attempted to recover video from the

Braughtons’ home security system. S. Williams, a forensic chemist, testified that

Chris had gunshot residue on both of his hands when samples were taken shortly

after the shooting. A firearms examiner testified regarding the operation of Chris’s

gun. A DNA analyst, Z. Phillips, testified that she found DNA consistent with

Braughton Sr.’s DNA on a knuckle on Dominguez’s right hand but did not find

any DNA consistent with Chris’s DNA on Dominguez.

       The State presented testimony from Cavender regarding her relationship

with Dominguez, their move to Spring, and the time they spent together the day


                                        15
Dominguez died. Cavender testified that Dominguez did not have any weapons on

his person or on his motorcycle on the day he died. Her phone and keys were in the

motorcycle’s saddlebags at the time of the shooting.

      The defense presented testimony from Glen Irving, Braughton Sr., and Mrs.

Braughton that Dominguez was chasing the Braughtons erratically down the street

and riding “almost on [their] bumper.” The Braughtons all testified that Mrs.

Braughton frantically called Chris while Dominguez was chasing them. Irving and

the Braughtons testified that Dominguez and Braughton Sr. fought. According to

Irving, Dominguez was “punching and beating up” Braughton Sr. The Braughtons

each testified that at that time they were afraid for their lives. Irving and the

Braughtons testified that Chris warned Dominguez as the latter was hitting

Braughton Sr., “Stop, I have a gun.” They all testified that Dominguez knocked

down Braughton Sr. and went toward his motorcycle, cursing and threatening that

he had “a gun” or “something for” Chris. Each of these witnesses also testified,

however, that they never saw a gun or other weapon in Dominguez’s possession.

      Braughton Sr. testified that he lost his phone on the evening in question.

Specifically, he testified that it fell out of his back pocket when Dominguez

punched him. He testified that the police took the phone and that the Braughtons

“kept asking” where the phone was but that they never regained possession of it.

Mrs. Braughton tracked the phone belonging to her youngest son, which was also


                                        16
missing, using an app on her own phone and found that it was “on the next street

and was driving away.” An officer returned with that phone but said he did not

have Braughton Sr.’s phone. According to Braughton Sr., when the Braughtons

tracked his phone, they found that it was in Pasadena, assumed it was stolen, and

remotely reset it to its factory state.

       The defense also presented Gary Gross, who installed the solar screen in

Gina’s bedroom window. He testified that the screen was a “90 percent Suntex

solar screen,” meaning that it would “block 90 percent of visible light,” was

designed to provide privacy, and would be difficult to see through at night.

According to Gross, at 10:00 p.m., it would be possible to see “some visible light”

through the screen and to “see something,” but not to “make out what it is.” He

confirmed that it would “probably not” be possible for anyone looking through the

screen at that time to “make out what they are seeing.”

       Chris testified that he “was just pointing [the gun] at [Dominguez’s] arm”

and “just wanted to stop him.” According to Chris, he had the gun in the air

initially, but he brought it down to his hip to fire. He testified that is not the same

way that he would “fire at a gun range.” He testified that he was “[n]ot behind

[Dominguez but] on the side of him” when he fired the shot. He conceded that he

pointed the gun at Dominguez, pulled the trigger, and thought “that a bullet was

going to hit” Dominguez. He also testified as follows:


                                          17
      Q.     You’re aware that a bullet hitting somebody can cause serious
             bodily injury, correct?

      A.     Sometimes, yes, sir.

      Q.     So you were aware that—you were aware that you were
             intending to cause serious bodily injury to Manny Dominguez?

      A.     Yes, sir.

He also explained that he had “receive[d] some basic information about the

operation of the gun” from the salesperson and had fired it at a shooting range on

two occasions.

      The trial court charged the jury, instructing it on the offense of murder and

the lesser-included offense of manslaughter. Additionally, the trial court instructed

the jury on the law of self-defense, defense of a third person, and defense of

property. Chris requested that the trial court also include an instruction on the

lesser offenses of misdemeanor and felony deadly conduct, but the trial court

refused.

      The jury convicted Chris of murder and assessed his punishment at 20 years’

confinement. This appeal followed.

                           Sufficiency of the Evidence

      In his first two issues, Chris argues that the evidence was legally insufficient

to support his conviction. In the first issue, he argues that no evidence, whether

direct or circumstantial, establishes that he possessed the required mental state to


                                         18
commit murder. In the second issue, he argues that the evidence was insufficient to

prove beyond a reasonable doubt that he did not act in self-defense or in defense of

others.

A.    Standard of review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the prosecution to determine whether any rational

factfinder could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); see Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011)

(holding that Jackson standard is only standard to use when determining

sufficiency of evidence); Nelson v. State, 405 S.W.3d 113, 122 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d). The jury is the exclusive judge of the facts

and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150

(Tex. Crim. App. 2008). A jury, as the sole judge of credibility, may accept one

version of the facts and reject another, and it may reject any part of a witness’s

testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see

also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d) (“Even when a witness’s testimony is uncontradicted, the jury can

choose to disbelieve a witness.”).




                                        19
      We     afford   almost   complete    deference    to   the   jury’s   credibility

determinations. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We

may not re-evaluate the weight and credibility of the evidence or substitute our

judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999)). Rather, we determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App.

2014). We resolve any inconsistencies in the evidence in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports

conflicting inferences, we presume that the factfinder resolved the conflicts in

favor of the prosecution and therefore defer to that determination.”).

      Circumstantial evidence is as probative as direct evidence in establishing

guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells

v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); Clayton, 235 S.W.3d at

778. “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.


                                          20
Crim. App. 2007). “Evidence is legally insufficient when the ‘only proper verdict’

is acquittal.” Nelson v. State, 405 S.W.3d 113, 122 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d) (quoting Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct.

2211, 2218 (1982)).

      The jury’s ultimate conclusion must be rational in light of all the evidence.

See, e.g., Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Matlock v. State, 392 S.W.3d

662, 673 n.45 (Tex. Crim. App. 2013); Adames, 353 S.W.3d at 860; Nelson, 405

S.W.3d at 122–23. In reviewing the sufficiency of the evidence when a jury has

rejected claims of self-defense or defense of others, we must “determine whether

after viewing all the evidence in the light most favorable to the prosecution, any

rational trier of fact would have found the essential elements of murder beyond a

reasonable doubt and also would have found against appellant on the self-defense

issue beyond a reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex.

Crim. App. 1991).6 When some evidence, if believed, supports a self-defense

claim, but other evidence, if believed, supports a conviction, we, as an appellate

court, “will not weigh in on this fact-specific determination, as that is a function



6
      We agree with the dissent’s summary of this standard as requiring us to determine
      whether it was “rational both for the jury to have found appellant guilty of murder,
      looking at the evidence in the light most favorable to the verdict, and for it to have
      rejected the defenses of self-defense and defense of a third person.” Accordingly,
      we consider whether the jury could rationally have made both such findings,
      taking all the evidence in the light most favorable to the prosecution.
                                            21
reserved for a properly instructed jury.” Reeves v. State, 420 S.W.3d 812, 820

(Tex. Crim. App. 2013).

B.    Mens rea

      In his first issue, Chris argues that the evidence was insufficient to support a

finding that he possessed the required mental state to have committed the offense

of murder.

      1.     Applicable law

      A person has the requisite mens rea for the offense of murder when he

“intentionally or knowingly causes the death of an individual” or “intends to cause

serious bodily injury and commits an act clearly dangerous to human life that

causes the death of an individual.” TEX. PENAL CODE § 19.02(b)(1)–(2). A person

acts “intentionally” with respect to the nature or result of his conduct “when it is

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

§ 6.03(a). A person acts “knowingly” “with respect to a result of his conduct when

he is aware that his conduct is reasonably certain to cause the result.” Id. § 6.03(b).

When, as in this case, the charge presents two legal theories of murder—

knowingly causing death or intending to cause serious bodily injury and

committing an act clearly dangerous to human life that causes death—the theories

are alternative manners and means of committing the offense of murder, rather




                                          22
than distinct offenses. See Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App.

1982) (en banc) (op. on rehearing).

      A conviction may be based upon circumstantial evidence, which is just “as

probative as direct evidence in establishing the guilt of an actor.” Temple v. State,

390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper, 214 S.W.3d at 13).

As explained by the Court of Criminal Appeals, “a jury may infer intent from any

facts which tend to prove its existence . . . [and a] jury may also infer knowledge

from such evidence.” Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002)

(quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)). This

evidence may include acts, words, and conduct of the accused. Id.; see Robbins v.

State, 145 S.W.3d 306, 309 (Tex. App.—El Paso 2004, pet. ref’d) (“[T]he jury

may infer the intent to kill from the defendant’s words or conduct.”).

      Further, a “jury may infer the intent to kill from the use of a deadly weapon

unless it would not be reasonable to infer that death or serious bodily injury could

result from the use of the weapon.” Jones v. State, 944 S.W.2d 642, 647 (Tex.

Crim. App. 1996); see Pitonyak v. State, 253 S.W.3d 834, 844 (Tex. App.—Austin

2008, pet. ref’d) (“When, as in this case, the evidence shows that a deadly weapon

was used in a deadly manner, ‘the inference is almost conclusive that [the

defendant] intended to kill.’” (quoting Godsey v. State, 719 S.W.2d 578, 581 (Tex.

Crim. App. 1986))). A firearm is a deadly weapon per se. TEX. PENAL CODE


                                         23
§ 1.07(a)(17)(A). In consideration of the evidence, “[i]ntent may also be inferred

from the means used and the wounds inflicted, and is a factual matter to be

determined by the jury from all the facts and circumstances.” Ervin v. State, 333

S.W.3d 187, 200 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

      2.     Whether there is sufficient evidence that Chris possessed the
             required mental state

      The State and Chris agree—and Chris testified—that he came out of the

house with a gun and ultimately shot Dominguez with a firearm, killing him. Chris

does not challenge the evidentiary support of these undisputed facts. Rather, Chris

points to the following evidence to argue there was no mens rea evidence:

(1) Chris feared for his father’s safety upon seeing the fight; (2) he pointed the gun

in the air and told Dominguez to stop because he had a gun; (3) Dominguez

threatened to pull a gun on him; (4) the forensic examiner testified that Chris shot

Dominguez at an angle, not facing face-to-face; (5) Chris testified that the only

reason that he discharged the gun was “to stop” Dominguez; and (6) Chris did not

flee the scene but instead waited for the police, voluntarily identified himself as the

shooter and directed the police to the gun he used.

      But this evidence is not relevant to the mental state of intent to kill or cause

serious bodily injury; rather, it supports his defenses of self-defense and defense of

another person. The evidence shows that Chris came out of the house with a loaded

weapon and inserted himself into a dispute between Braughton Sr. and Dominguez

                                          24
in which no deadly force had been used or threatened and which had not caused

any serious injury to his father. And he ultimately fired that gun with the intention

of striking Dominguez. The “jury [could] infer the intent to kill from the use of a

deadly weapon unless it would not be reasonable to infer that death or serious

bodily injury could result from the use of the weapon.” Jones, 944 S.W.2d at 647;

see Pitonyak, 253 S.W.3d at 844.

      Chris also argues that evidence about his cooperation with police after the

shooting coupled with a lack of prior animosity between the two demonstrates

insufficient circumstantial evidence of the requisite mental state for murder under

Penal Code sections 19.02(b)(1) and 19.02(b)(2). But Chris used a firearm, a

deadly weapon per se, to kill Dominguez. TEX. PENAL CODE § 1.07(a)(17)(A).

Intent is determined by the jury from all the facts and circumstances in evidence.

Ervin, 333 S.W.3d at 200. Thus, purposeful use of a deadly weapon could

reasonably lead a jury to conclude that Chris possessed the required mental state.

See id; Jones, 944 S.W.2d at 647; Pitonyak, 253 S.W.3d at 844.

      To support his contention that the jury reached an irrational conclusion here,

Chris points to the “robbery-at-a-convenience-store” illustration in Brooks v. State,

323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.). The court explained the

hypothetical as follows:

      The store clerk at trial identifies A as the robber. A properly
      authenticated surveillance videotape of the event clearly shows that B
                                         25
      committed the robbery. But, the jury convicts A. It was within the
      jury’s prerogative to believe the convenience store clerk and disregard
      the video. But based on all the evidence the jury’s finding of guilt is
      not a rational finding.

323 S.W.3d at 906–07 (quoting Johnson v. State, 23 S.W.3d 1, 15 (Tex. Crim.

App. 2000) (McCormick, P.J., dissenting)). The Brooks court identified this

example as “a proper application of the Jackson v. Virginia legal-sufficiency

standard.” Id.

      This case is not analogous. There is no evidence that “clearly” contradicts

the jury’s conclusion that Chris killed Dominguez with the requisite intent. Nor

does a review of all the evidence in the light most favorable to the verdict

demonstrate that the jury’s finding was irrational. Even were we to agree with

Chris that the medical examiner’s findings regarding the trajectory of the

gunshot—the bullet traveling from one armpit to the other—were incontrovertible

and that Gina’s testimony regarding Dominguez’s orientation could be completely

disregarded because it conflicted with those findings, the jury rationally could have

concluded that Chris acted with the required culpable mental state for murder. And

Chris himself acknowledges that there is some evidence indicating a culpable

mental state, such as his use of a firearm at close range and his own

acknowledgments that he was “intending to cause serious bodily injury to”

Dominguez.



                                         26
      Viewing the evidence in the light most favorable to the jury’s finding, we

conclude that a rational jury could have found that Chris intentionally or

knowingly caused Dominguez’s death. See Jackson, 443 U.S. at 319; see also TEX.

PENAL CODE §§ 6.03(a)–(b) (definitions of “intentionally” and “knowingly”),

19.02 (elements of murder). The evidence is thus legally sufficient to support the

jury’s finding that Chris acted with the required mental state to commit murder.

We overrule Chris’s first issue.

C.    Defenses of self-defense and defense of others

      In his second issue, Chris argues that “the State failed to carry its burden of

persuasion on his claims that he acted in self-defense and in defense of others.”

      1.     Applicable law

      Both self-defense and defense of a third party are statutorily defined and

provide a defense to prosecution when the conduct in question is “justified.” TEX.

PENAL CODE § 9.02. Under Chapter 9, “a person is justified in using force against

another when and to the degree the actor reasonably believes the force is

immediately necessary to protect the actor against the other’s use or attempted use

of unlawful force . . . .” Id. § 9.31(a). Similarly, “[a] person is justified in using

deadly force against another . . . when and to the degree the actor reasonably

believes the deadly force is immediately necessary . . . to protect the actor against

the other’s use or attempted use of unlawful deadly force.” Id. § 9.32(a) (emphasis


                                         27
added); see Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d).

      A person is justified in using deadly force in defense of others “[s]o long as

the accused reasonably believes that the third person would be justified in using

[deadly force] to protect himself.” Smith, 355 S.W.3d at 145 (quoting Hughes v.

State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986)); see TEX. PENAL CODE § 9.33.

Both of these defenses—self-defense and defense of others—may be raised as

justifications for a defendant’s actions and in support of an acquittal against a

charge of murder or manslaughter. See, e.g., TEX. PENAL CODE §§ 9.31–.33;

Alonzo v. State, 353 S.W.3d 778, 779–81 (Tex. Crim. App. 2011) (self-defense is

defense to both murder and manslaughter charges); Smith, 355 S.W.3d at 145

(defense of third person as defense to murder).

      The use of force against another is not justified in response to verbal

provocation alone7 or when the person using force provoked the person against

whom the force was used.8 And the use of deadly force is only appropriate under

these defenses to protect the actor or a third person from another’s “use or

attempted use of unlawful deadly force” or “to prevent the other’s imminent

commission of aggravated kidnapping, murder, sexual assault, aggravated sexual

assault, robbery, or aggravated robbery.” See TEX. PENAL CODE §§ 9.32(a), 9.33.

7
      See TEX. PENAL CODE § 9.31(b)(1).

                                          28
      In a claim of self-defense or defense of others, “a defendant bears the burden

of production,” while “the State . . . bears the burden of persuasion to disprove the

raised defense.” Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The

defendant’s burden of production requires the defendant to adduce some evidence

that would support a rational jury finding for the defendant on the defensive issue.

See Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013); Shaw v.

State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007); see also TEX. PENAL

CODE § 2.03(c) (“The issue of the existence of a defense is not submitted to the

jury unless evidence is admitted supporting the defense.”). “[E]ven a minimum

quantity of evidence is sufficient to raise a defense as long as the evidence would

support a rational jury finding as to the defense.” Krajcovic, 393 S.W.3d at 286

(citing Shaw, 243 S.W.3d at 657–58). “[A] defense is supported (or ‘raised’) if

there is evidence in the record making a prima facie case for the defense.” Shaw,

243 S.W.3d at 657. “A prima facie case is that ‘minimum quantum of evidence

necessary to support a rational inference that [an] allegation of fact is true.’” Id.

(quoting Tompkins v. State, 774 S.W.2d 195, 201 (Tex. Crim. App. 1987), aff’d,

490 U.S. 754, 109 S. Ct. 2180 (1989)). By contrast, the State’s “burden of

persuasion is not one that requires the production of evidence, rather it requires




8
      See id. § 9.31(b)(4) (providing general rule and exception).
                                           29
only that the State prove its case beyond a reasonable doubt.” Zuliani, 97 S.W.3d

at 594 (citing Saxton, 804 S.W.2d at 913–14).

      In light of these burdens of production and proof, “[w]hen a jury finds the

defendant guilty, there is an implicit finding against the defensive theory.” Id. A

jury, however, is not permitted to reach a speculative conclusion. Elizondo v. State,

487 S.W.3d 185, 203 (Tex. Crim. App. 2016). Nor is it permitted to disregard

undisputed facts that allow only one logical inference. Evans v. State, 202 S.W.3d

158, 162 (Tex. Crim. App. 2006); Satchell v. State, 321 S.W.3d 127, 132 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d).

      2.     Whether there is sufficient evidence that Chris’s actions were not
             justified

      Chris adduced evidence that he acted in self-defense or in defense of his

family. According to multiple witnesses, Chris received a frantic phone call from

his mother that Dominguez was chasing his family on a motorcycle. By several

accounts, when Chris came out of the house, Dominguez was punching Braughton

Sr. in the face. Braughton Sr. ultimately had a bloody lip. Chris relies on his own

testimony and the testimony of his family members and Irving that when he came

out of the house with a gun and told Dominguez, “Stop, I have a gun,” Dominguez

responded by acknowledging, “[Y]ou have a gun,” stating that he had “a gun” or

“something for” Chris, and moving towards his motorcycle, which prompted Chris

to shoot him. In addition, Bannon testified that the overall situation was one in

                                         30
which Chris was “just trying to defend his dad.” This testimony was consistent

with the physical evidence presented. As Dr. Gonsoulin testified, the bullet

trajectory was at least plausibly consistent with a shot fired while Dominguez was

bending or reaching downward with his right hand, as that would expose his armpit

if his shoulders were sufficiently extended.

      In light of the above testimony, Chris met his burden of production. See

TEX. PENAL CODE § 2.03(c); Krajcovic, 393 S.W.3d at 286; Shaw, 243 S.W.3d at

657–58. That is, this evidence, if credited by the jury, would support a rational jury

finding that Chris was not guilty because (1) he justifiably acted in self-defense in

response to the statement “I got a gun for you” and Dominguez’s subsequent

motions; (2) he justifiably acted in defense of others, in particular in defense of his

father, mother, and younger brother; or (3) both defenses applied.

      Because Chris met his burden of production, the State was required to prove

beyond a reasonable doubt that his actions were not justified under either defensive

theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14. Although the

State was not required to produce evidence refuting Chris’s theories, it still had the

obligation to present evidence sufficient to permit the jury to reach its verdict of

guilty, implicitly rejecting those theories. E.g., Alonzo, 353 S.W.3d at 781 (“If

there is some evidence that a defendant’s actions were justified under one of the

provisions of Chapter 9 [of the Penal Code], the State has the burden of persuasion


                                          31
to disprove the justification beyond a reasonable doubt.”); Zuliani, 97 S.W.3d at

594–95; Saxton, 804 S.W.2d at 913–14.

      The jury rationally could have rejected Chris’s self-defense and defense-of-

others theories. The use of deadly force for defense of third parties is justified only

“when and to the degree the actor reasonably believes the deadly force is

immediately necessary . . . to protect the [third party] against [another’s] use or

attempted use of unlawful deadly force.” TEX. PENAL CODE §§ 9.32(a)(2), 9.33.

Taking the evidence in the light most favorable to the prosecution, the jury could

have discredited the testimony that Mrs. Braughton called Chris before the fight

began—testimony that was undermined by the absence of any phone records

demonstrating that it occurred or any data retrieved from any phone found at the

scene. Although no witness testified that the call did not occur, the jury was free to

disbelieve all or any part of any witness’s testimony and was not required to accept

the testimony of Chris’s witnesses, even when those witnesses were not

contradicted. See Sharp, 707 S.W.2d at 614; Henderson, 29 S.W.3d at 623.

      In the same light, the cut on Braughton Sr.’s lip and presence of Braughton

Sr.’s DNA on Dominguez’s hand indicates only that Dominguez punched

Braughton Sr. once. Even were we to credit the testimony of Braughton Sr. that he

was punched three times, the jury rationally could have concluded that Chris’s use

of deadly force was not immediately necessary for Chris to protect his father. By


                                          32
all accounts, Braughton Sr. was on the ground after the third punch, and

Dominguez had no weapon, was not using his hands as deadly weapons, and was

not kicking or jumping on Braughton Sr. And Braughton Sr.’s injuries—a bloody

lip—were not serious—indeed, Braughton Sr. did not receive any medical

treatment for his injuries. The defense-of-others theory is also undermined by

Chris’s mother’s statement to him to put the gun down and go back inside and her

immediate reaction to observing Chris shoot Dominguez: “What did you do?”

      Indeed, at the moment of the shooting, Dominguez had ceased using any

force at all, and the punches he had landed on Braughton Sr. up to that point do not

amount to deadly force that could create a reasonable belief that deadly force was

necessary. See Bedolla v. State, 442 S.W.3d 313, 317 (Tex. Crim. App. 2014)

(distinguishing between purportedly defensive punching as force and running over

victim with car as deadly force); see also Bundy v. State, 280 S.W.3d 425, 435

(Tex. App.—Fort Worth 2009, pet. ref’d) (stating that “attempt to punch

appellant . . . was not deadly force” justifying defensive deadly force); Schiffert v.

State, 257 S.W.3d 6, 14 (Tex. App.—Fort Worth 2008, pet. ref’d) (holding that

reasonable jury could not have found that actor was justified in using deadly force

when other person’s only use of force was striking with fist); cf. Rue v. State,

No. 01-11-00112-CR, 2012 WL 3525377, at *3 (Tex. App.—Houston [1st Dist.]

Aug. 16, 2012, pet. ref’d) (mem. op., not designated for publication) (“Hands are


                                         33
not deadly weapons per se, but they can become deadly weapons depending on

how the actor uses them.”). In sum, Chris adduced no evidence that Dominguez

used his hands in a deadly manner or used or threatened to use deadly force of any

kind before Chris brought a gun to the encounter.

      We next turn to whether the jury likewise could have rationally found that

Chris was not justified in using deadly force in light of evidence that Dominguez

appeared to be reaching for a gun in the saddlebag of his motorcycle. Chris,

Braughton Sr., and Mrs. Braughton each testified that, in response to Chris’s

announcement that he had a gun, Dominguez responded that he also had “a gun.”

But each of these witnesses also testified that Dominguez might have said, instead,

that he had “something.” No witness ever saw a gun in Dominguez’s possession,

and law enforcement did not recover any weapon other than Chris’s gun. Thus,

although the jury could have credited testimony that Chris reasonably believed that

deadly force was immediately necessary, it was also free to reject the testimony

that Dominguez threatened Chris with and attempted to retrieve a gun, particularly

when no gun other than Chris’s was ever recovered. Saxton, 804 S.W.2d at 914.

      Chris next assails the testimony of Gina, the neighbor who observed the

events unfold from her bedroom window. First, Chris points out inconsistencies

between her statement to police and her trial testimony. Second, he argues that her

testimony is unreliable because the window covering obstructed her vision. Third,


                                        34
through his examination of Dr. Gonsoulin, the assistant medical examiner, he

attacks Gina’s contention that Dominguez was backing up with his arms raised

above his head and was not reaching towards his motorcycle’s saddlebag when he

was shot. Dr. Gonsoulin conceded that—given the path of the bullet which went

“basically from the right armpit to the left arm pit” in a “very slightly upward”

direction9—it was “possible” that Dominguez was “slightly bent” and “reaching”

with his right arm when he was shot. Dr. Gonsoulin also testified that the bullet,

which came primarily from a shooter facing Dominguez’s right side, entered

“slightly” from Dominguez’s back, not from a gun pointing “straight ahead” at

Dominguez’s chest. While this possibility was consistent with Chris’s testimony

that Dominguez was reaching into his motorcycle’s saddlebags when Chris fired

the gun, this does “not render the State’s evidence insufficient [because] the

credibility determination of such evidence is solely within the jury’s province and

the jury is free to accept or reject the defensive evidence.” Id.10




9
      She also described the path as “almost straight across” and that the left side was
      “down by just a hair” or “minimally.”
10
      The dissent asserts that Gina’s testimony was “irreconcilable with the physical
      evidence,” specifically Dr. Gonsoulin’s testimony about the bullet’s trajectory. We
      disagree. As explained above, Dr. Gonsoulin testified that she could not exclude
      the possibility that Dominguez had his hands up, but could only say that the gun
      could not have been pointed at his chest from the front. And Gina did not
      specifically testify that the gun was in front of Dominguez.
                                           35
      Indeed, Dr. Gonsoulin’s testimony was in some ways supportive of Gina’s

account. The area of the bullet’s entry under the right armpit generally “is covered

whenever that person’s arm is down.” She testified:

      Q.    So let’s go back and talk about the gunshot wound. What does
            the position of the gunshot wound on Emmanuel Dominguez
            being about right here; is that correct?

      A.    A little higher.

      Q.    What does that tell you as far as the position of his right arm
            whenever the bullet entered his body?

      A.    At the time of the discharge, his armpit was exposed, which
            means that his shoulders were at least raised to expose that area
            of the body.

She also testified that while the armpit would be exposed if someone was reaching

far enough, it would not be exposed if someone was reaching across and down

because reaching down “cover[s] up that armpit.” The inference from this

testimony, combined with testimony and photographic evidence that Dominguez’s

motorcycle was laid on the ground, was that Dominguez likely was not reaching

down when he was shot. Chris did not present any expert witness to support his

contention that Dominguez was reaching down when he was shot.

      Chris urges us to discredit Gina’s testimony because Gina was mistaken

when she apparently testified that Dominguez was facing Chris when he was shot.

But a jury may disregard mistakes by a witness on one portion of the witness’s

testimony and still credit other portions of the witness’s testimony—here that

                                        36
Dominguez had his hands up. See Sharp, 707 S.W.2d at 611; Henderson, 29

S.W.3d at 616. Moreover, Dr. Gonsoulin testified that Dominguez could have

turned shortly before the shooting.

      To the extent that the evidence conflicted regarding Dominguez’s orientation

with respect to Chris when the shot was fired, the resolution of such conflicts is the

province of the jury, and the jury could have resolved such conflicts in a number of

ways, including by crediting other parts of Gina’s testimony or Chris’s own

testimony that he was standing to Dominguez’s side. See Bartlett, 270 S.W.3d at

150 (jury is exclusive judge of facts proved and weight to be given to testimony);

Sharp, 707 S.W.2d at 614 (“[A] witness may be believed even though some of his

testimony may be contradicted and part of his testimony recorded, accepted, and

the rest rejected.”); Henderson, 29 S.W.3d at 623. With the testimony presented,

the jury could have believed that Dominguez backed away at an angle to Chris or

that, while Dominguez was backing directly away, he turned before the bullet

struck him.11


11
      The dissent states that Gina’s testimony that Dominguez put his hands up and
      backed away without making any threats is “[t]he only evidence that is
      inconsistent with [Chris’s] defensive theories.” We disagree. The evidence shows
      that Chris had little to no knowledge of unfolding events when he emerged from
      the house with a gun, that the physical confrontation between Dominguez and
      Braughton Sr. ended before Chris fired a shot, that Bannon did not see a fight at
      all, and that Mrs. Braughton made numerous statements from which a reasonable
      jury could infer that Chris’s use of deadly force was unnecessary. These facts,
      among others, are also inconsistent with Chris’s theory that defensive, deadly
      force was immediately necessary.
                                          37
      As we observed in another case involving a claim of self-defense,

      The jury’s decision to reject [the] defensive claims . . . ultimately
      hinges on the credibility of the witnesses. As factfinder, the jury is
      entitled to judge the credibility of witnesses, and can choose to believe
      all, some, or none of the testimony presented by the parties. The
      statements of the defendant and his witnesses do not conclusively
      prove a claim of self-defense or defense of a third party.

Smith v. State, 355 S.W.3d 138, 146 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d) (citations and internal quotation marks omitted).

      In conclusion, taking the evidence in the light most favorable to the verdict,

the jury rationally could have chosen not to believe Chris and his family’s

testimony that would have supported a finding that Chris reasonably believed

deadly force was immediately necessary to protect himself or third persons from

Dominguez’s impending attempted use of deadly force. We cannot substitute our

view of these witnesses’ credibility based on a cold record for that of the

factfinder. Smith, 355 S.W.3d at 144; see Brooks, 323 S.W.3d at 899 (jury is sole

judge of witnesses’ credibility and weight to be given their testimony). Nor can we

conclude that the imperfections in Gina’s testimony by themselves are sufficient to

conclusively establish a reasonable doubt. See Williams, 235 S.W.3d at 750. Even

without Gina’s testimony, the jury was not required to accept Chris’s defensive

claims. Indeed, additional testimony—from Gonsoulin, Bannon, and even the

Braughtons—cast doubt on Chris’s claim that he had a reasonable belief in the

need to use deadly force.

                                         38
      As an appellate court, our review is limited. First, we review the evidence in

the light most favorable to the prosecution. Saxton, 804 S.W.2d at 914. Second, we

may not “act as a ‘thirteenth juror’ by overturning a jury’s duly-delivered verdict

simply because we ‘disagree with [that] verdict.’” Thornton, 425 S.W.3d at 303.

We may set aside the jury’s guilty verdict only if no reasonable juror could reach

the verdict the jury reached. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Saxton, 804 S.W.2d at 914. We must affirm, however, if, “after viewing all the

evidence in the light most favorable to the prosecution, any rational trier of fact

would have found the essential elements of murder beyond a reasonable doubt and

also would have found against appellant on the self-defense issue beyond a

reasonable doubt.” Saxton, 804 S.W.2d at 914. Applying these standards, after

reviewing all the evidence, we conclude that legally sufficient evidence supports

the verdict, and therefore overrule Chris’s second issue.

                                   Charge Error

      In his third issue, Chris argues that the trial court committed reversible error

by refusing his request for an instruction on the lesser-included offense of felony

deadly conduct. In response, the State argues that Chris was not entitled to the

instruction because there was no evidence to support it. Alternatively, the State

argues that any error was harmless because the charge included an instruction on

the intervening lesser-included offense of manslaughter, which the jury rejected,


                                         39
indicating that it would have also rejected the even lesser-included offense of

deadly conduct.

A.    When a lesser-included-offense instruction is required

      The Code of Criminal Procedure provides that an offense is a lesser-included

offense of a charged offense if

      (1)    it is established by proof of the same or less than all the facts
             required to establish the commission of the charged offense;

      (2)    it differs from the charged offense only in the respect that a less
             serious injury or risk of injury to the same person, property, or
             public interest suffices to establish its commission;

      (3)    it differs from the charged offense only in the respect that a less
             culpable mental state suffices to establish its commission; or

      (4)    it consists of an attempt to commit the charged offense or an
             otherwise included offense.

TEX. CODE CRIM. PROC. art. 37.09.

      A defendant is entitled to an instruction on a lesser-included offense if the

lesser-included offense satisfies a two-prong test. Bullock v. State, 509 S.W.3d

921, 924 (Tex. Crim. App. 2016); Cavazos v. State, 382 S.W.3d 377, 382–83 (Tex.

Crim. App. 2012).

      Under the first prong, the lesser-included offense must actually be a lesser-

included offense of the charged offense. Palmer v. State, 471 S.W.3d 569, 570

(Tex. App.—Houston [1st Dist.] 2015, no pet.). That is, the lesser-included offense

must be included “within the proof necessary to establish the offense charged.”

                                          40
Bullock, 509 S.W.3d at 924; see Cavazos, 382 S.W.3d at 382; Hall v. State, 225

S.W.3d 524, 536 (Tex. Crim. App. 2007). Whether a lesser-included offense

satisfies the first prong is a question of law, which we review de novo without

considering the evidence. Bullock, 509 S.W.3d at 924; Hall, 225 S.W.3d at 535;

Palmer, 471 S.W.3d at 570.

      Under the second prong, the lesser-included offense must be “a valid,

rational alternative to the charged offense.” Bullock, 509 S.W.3d at 925. To be a

valid, rational alternative, the lesser-included offense must be supported by some

evidence in the record that would permit the jury rationally to find the defendant

guilty of only the lesser charge. Cavazos, 382 S.W.3d at 383. That is, there must be

“some evidence in the record that would permit a jury to rationally find that, if the

defendant is guilty, he is guilty only of the lesser-included offense.” Bullock, 509

S.W.3d at 925.

       “Anything more than a scintilla of evidence is adequate to entitle a

defendant to a lesser charge.” Id. Although “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 [the defendant]

is guilty, he is guilty only of the lesser-included offense.” Cavazos, 382 S.W.3d at

385. Satisfying this standard “requires more than mere speculation—it requires




                                          41
affirmative evidence that both raises the lesser-included offense and rebuts or

negates an element of the greater offense.” Id.

       In reviewing the evidence to determine whether the lesser-included offense

satisfies the second prong, “we may not consider ‘[t]he credibility of the evidence

and whether it conflicts with other evidence or is controverted.’” Goad v. State,

354 S.W.3d 443, 446–47 (Tex. Crim. App. 2011) (quoting Banda v. State, 890

S.W.2d 42, 60 (Tex. Crim. App. 1984)). The second prong “may be satisfied if

some evidence refutes or negates other evidence establishing the greater offense or

if the evidence presented is subject to different interpretations.” Sweed v. State, 351

S.W.3d 63, 68 (Tex. Crim. App. 2011). If the record contains more than a scintilla

of evidence from which a jury could rationally find the defendant guilty of only the

lesser-included offense, the defendant is entitled to the instruction—even if finding

the defendant guilty of the lesser-included offense “would require the jury to

believe only portions of certain witnesses’ testimony.” Bullock, 509 S.W.3d at 929.

       Whether a lesser-included offense satisfies the second prong is a question of

fact, which we review for an abuse of discretion, considering all the trial evidence.

Bullock, 509 S.W.3d at 929; Cavazos, 382 S.W.3d at 383; Palmer, 471 S.W.3d at

570.




                                          42
B.    When the omission of a lesser-included-offense instruction is harmful

      “The erroneous refusal to give a requested instruction on a lesser-included

offense is charge error subject to an Almanza harm analysis.” Nangurai v. State,

507 S.W.3d 229, 234 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); see

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on rehearing).

When, as here, error has been properly preserved, we will reverse if the error

resulted in some harm to the defendant. Nangurai, 507 S.W.3d at 234.

      Ordinarily, if the trial court’s refusal to submit an instruction on the lesser-

included offense “left the jury with the sole option either to convict the defendant

of the charged offense or to acquit him, some harm exists.” Id. The harm from

omitting an instruction on a lesser-included offense “stems from the potential to

place the jury in the dilemma of convicting for a greater offense in which the jury

has reasonable doubt or releasing entirely from criminal liability a person the jury

is convinced is a wrongdoer.” Masterson v. State, 155 S.W.3d 167, 171 (Tex.

Crim. App. 2005). Thus, the submission of an instruction on an intervening lesser-

included offense—an offense that is between the requested lesser-included offense

and the charged offense—may serve as “an available compromise, giving the jury

the ability to hold the wrongdoer accountable without having to find him guilty of

the charged (greater) offense.” Id. When a trial court instructs on one lesser-

included offense but refuses to instruct on a separate lesser-included offense, the


                                         43
inclusion of one lesser-included offense “may, in appropriate circumstances, render

a failure to submit the requested lesser offense harmless.” Id.

      In determining whether the submission of an instruction on an intervening

lesser-included offense rendered the trial court’s error harmless, we consider

whether the jury rejected the intervening lesser-included offense. Id. at 171–72. If

the jury rejected the intervening lesser-included offense, and the rejection indicates

that the jury legitimately believed that the defendant was guilty of the greater

charged offense, the trial court’s refusal to submit the requested instruction on

another lesser-included offense was harmless. Id.; Saunders v. State, 913 S.W.2d

564, 573–74 (Tex. Crim. App. 1995) (holding “that because the jury did not opt to

convict appellant of involuntary manslaughter, failure to authorize conviction for

negligent homicide was harmless”); Flowers v. State, No. 01-12-00527-CR, 2013

WL 4081412, at *8 (Tex. App.—Houston [1st Dist.] Aug. 13, 2013, no pet.) (mem.

op., not designated for publication) (“[W]hen the jury is charged on a lesser-

included offense, albeit not one that the defendant requested, the jury’s decision to

convict of the charged offense, instead of convicting of the ‘intervening lesser-

included offense,’ may render a failure to submit the requested lesser-included

offense harmless.”).

      We also consider the plausibility of the intervening lesser-included offense.

Masterson, 155 S.W.3d at 171. If the jury rejected the intervening lesser-included


                                          44
offense, and the intervening submitted lesser-included offense was just as plausible

as the requested but refused lesser-included offense, then the trial court’s refusal to

submit the requested instruction was harmless. Id. (explaining that inclusion of

instruction on intervening lesser offense does not automatically foreclose harm

because in some circumstances intervening lesser offense may be least plausible

theory under evidence); Saunders, 913 S.W.2d at 573 (explaining that jury’s

conviction for murder instead of lesser-included offense of involuntary

manslaughter does not establish, a fortiori, that jury would not have convicted for

negligent homicide because jury may have found conscious disregard of risk to be

least plausible theory under evidence).

        Here, the offense charged was murder, the intervening lesser-included

offense included in the charge was manslaughter, and the requested even-lesser-

included offense omitted from the charge was felony deadly conduct. In

descending level of seriousness based on the possible punishment ranges, the

offenses were as follows:

       Murder             →           Manslaughter           →         Deadly Conduct
     (1st Degree)                     (2d Degree)                       (3d Degree)12

12
        The punishment range for murder, a first-degree felony, is confinement for life or
        for any term of not more than 99 years or less than 5 years and a fine not to exceed
        $10,000. TEX. PENAL CODE §§ 12.32 (establishing punishment range for first
        degree felony), 19.02(c) (establishing murder as first degree felony). The
        punishment range for manslaughter, a second-degree felony, is confinement for
        not more than 20 years or less than 2 years and a fine not to exceed $10,000. Id. §§
        12.33 (establishing punishment range for second degree felony), 19.04(b)
                                             45
      A person commits murder if he either (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 . . . .” TEX. PENAL CODE § 19.02(b)(1)–(2).

      A person commits manslaughter “if he recklessly causes the death of an

individual.” Id. § 19.04(a). “A person acts recklessly, or is reckless, with respect to

circumstances surrounding his conduct or the result of his conduct when he is

aware of but consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.”13 Id. § 6.03(c).

      A person commits third-degree felony deadly conduct “if he knowingly

discharges a firearm at or in the direction of . . . one or more individuals . . . .”

Id. § 22.05(b)(1); see id. § 22.05(e).

C.    Whether deadly conduct is a lesser-included offense of murder

      We begin our analysis by determining whether deadly conduct is a lesser-

included offense of murder. Chris was charged with committing murder by

      (establishing manslaughter as second degree felony). And the punishment range
      for felony deadly conduct, a third-degree felony, is confinement for not more than
      10 years or less than 2 years and a fine not to exceed $10,000. Id. §§ 12.34
      (establishing punishment range for third degree felony), 22.05(e) (establishing
      felony deadly conduct as third degree felony).
13
      “The risk must be of such a nature and degree that its disregard constitutes a gross
      deviation from the standard of care that an ordinary person would exercise under
      all the circumstances as viewed from the actor’s standpoint.” Id. § 6.03(c).

                                           46
intentionally and knowingly shooting Dominguez with a firearm, killing him.

Murder requires both a more culpable mental state (intentionally or knowingly

killing another) and a more serious injury to Dominguez (death) than felony deadly

conduct. Thus, deadly conduct by recklessly or knowingly discharging a firearm in

the direction of an individual is a lesser-included offense of intentional murder by

means of discharging a firearm. See Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d). We conclude that deadly conduct is a

lesser-included offense of murder as charged in this case.

D.    Whether the evidence supports a finding of only deadly conduct

      We next consider whether the record contains evidence that “both raises the

lesser-included offense” of deadly conduct and “rebuts or negates an element of

the greater offense,” murder. See Cavazos, 382 S.W.3d at 385.

      When, as here, a person intentionally points a firearm at or in the direction

of one or more people, fires it, and kills a person, “deadly conduct is distinguished

from murder . . . only by relieving the State of proving (1) an intentional act and

(2) the death of an individual.” Ortiz, 144 S.W.3d at 234. Thus, to be entitled to an

instruction on the lesser-included offense of felony deadly conduct, Chris was

required to show that the record contained some evidence that would permit the

jury rationally to find that he knowingly discharged a firearm at or in the direction

of Dominguez but did not intend to kill Dominguez or cause him to suffer serious


                                         47
bodily injury. TEX. PENAL CODE §§ 19.02(b)(1)–(2), 22.05(b)(1). While Chris

never explicitly testified that he did not intend to shoot Dominguez, he argues that

if the jury believed certain portions of his testimony and disbelieved others, it

could have rationally found that he knowingly discharged his firearm in the general

direction of Dominguez but did not intend to kill or seriously injure him.

      The testimony that Chris contends the jury would have to believe to find him

guilty of only deadly conduct occurred during his direct examination, when Chris

answered the questions of his defense counsel while the two reenacted the

shooting:

      Q.     As [Dominguez] reaches, go ahead and reach as he did.

      A.     (Witness complies.)

      Q.     And then did he come up at all?

      A.     He began to come up.

      Q.     Go ahead and show that if you would to the ladies and
             gentlemen of the jury.

      A.     He reached over (demonstrating). I think I shot him as he was
             coming up.

      Q.     I’m you right here. Let’s change positions now. I’ll be
             Dominguez. As he’s coming up, what are you shooting at?

      A.     Towards his arm.

      Q.     When you say “arm,” is this it?

      A.     Yes.
                                         48
      Q.    This thing here?

      A.    Yes, sir.

      Q.    Okay. Is the saddlebag here?

      A.    Yes, sir.

      Other testimony Chris contends the jury would have to believe to find him

guilty of only deadly conduct occurred during his cross-examination, when Chris

explained why he shot from the hip:

      Q.    And it’s your testimony today you had the gun at your hip?

      A.    I had it up initially and I just kind of went down.

      Q.    Is that how you fire at a gun range?

      A.    No, sir. Like I said, I mean, I wasn’t—I just had it pointed
            towards his arm. I wasn’t aiming at a specific area on him.

                                       *        *   *

      Q.    When you shot him, you were intending to hit him, correct?

      A.    I was just pointing at his arm. I just wanted to stop him, like I
            said, sir.

Chris contends that this testimony, combined with several other pieces of evidence,

would have permitted a jury to rationally find him guilty of only deadly conduct.14


14
      According to Chris, this includes evidence that: (1) Chris did not meet Dominguez
      until the night of the shooting; (2) Chris was inexperienced with
      firearms; (3) Chris came outside with the gun pointed “in the air”; (4) Chris
      repeatedly said or yelled, “Stop I have a gun”; (5) Chris fired only once even
                                           49
      The potentially inconsistent testimony that Chris contends the jury would

have to disbelieve occurred during his cross-examination when Chris answered the

prosecutor’s questions about Chris’s knowledge and intent:

      Q.    Well, you had the gun pointed at him and you pulled the
            trigger, right?

      A.    Yes, sir.

      Q.    Did you think that a bullet was going to hit Manny Dominguez?

      A.    Yes, sir.

      Q.    You’re aware that a bullet hitting somebody can cause serious
            bodily injury, correct?

      A.    Sometimes, yes, sir.

      Q.    So you were aware that—you were aware that you were
            intending to cause serious bodily injury to Manny Dominguez?

      A.    Yes, sir.

      According to Chris, the jury could have rationally determined that he was

not guilty of murder and was guilty only of felony deadly conduct if it (1) believed

his testimony that he shot in the general direction of Dominguez’s arm but was not

aiming at any specific part of his body, (2) disbelieved his testimony that he

intended to hit Dominguez and cause him serious bodily injury, and (3) inferred


      though his gun held fourteen rounds; (6) Chris remained at the scene and
      identified himself as the person who shot Dominguez; and (7) Dominguez was not
      standing immediately in front of Chris when he fired the gun.

                                        50
from the evidence that Chris was inexperienced with firearms and intended to

shoot in the general direction of Dominguez but did not intend to actually hit him.

See Bullock, 509 S.W.3d at 926 (noting that jury could have concluded defendant

was not guilty of theft and was guilty only of attempted theft if it believed parts of

defendant’s testimony and disbelieved other parts).

      Because Chris did not testify that he shot “at” Dominguez, but only shot

“towards his arm,” and because the evidence showed that Chris was inexperienced

with firearms and shot from a position that compromised his accuracy, Chris

argues that his testimony can and should be interpreted as meaning that he only

intended to stop or scare off Dominguez, not seriously injure him. For the reasons

stated below, we conclude that we need not determine whether Chris is correct.

E.    Whether the omission of a deadly-conduct instruction was harmful

      Even if we accept Chris’s distinction between shooting “towards” and “at”

someone15 and hold that Chris was entitled to an instruction on the lesser-included

offense of felony deadly conduct, Chris is not entitled to reversal because he has

not shown that the error was harmful.

      First, the trial court included an instruction on an intervening lesser-included

offense, and the jury rejected it. The Texas Court of Criminal Appeals has


15
      Compare WEBSTER’S NEW WORLD COLLEGE DICTIONARY (5th ed. 2014) 1532
      (defining “toward” as “in the direction of”) with id. at 89 (defining “at” as “to or
      toward as the goal or object”).
                                           51
observed that an appellate court “can conclude that the intervening offense

instruction renders the error harmless if the jury’s rejection of that offense

indicates that the jury legitimately believed that the defendant was guilty of the

greater, charged offense.” Masterson, 155 S.W.3d at 171–72 (holding that denial

of instruction on criminally negligent homicide was harmless when jury rejected

intervening offense of manslaughter and convicted defendant of capital murder).

      Here, the charge included the following instruction on the intervening lesser-

included offense of manslaughter:

      Unless you so find from the evidence beyond a reasonable doubt [that
      Chris is guilty of murder], or if you have a reasonable doubt thereof,
      or if you are unable to agree, you will next consider whether the
      defendant is guilty of the lesser offense of manslaughter.

      Our law provides that a person commits the offense of manslaughter if
      he recklessly causes the death of an individual.

      A person acts recklessly, or is reckless, with respect to the result of his
      conduct when he is aware of but consciously disregards a substantial
      and unjustifiable risk that the result will occur. The risk must be of
      such a nature and degree that its disregard constitutes a gross
      deviation from the standard of care that an ordinary person would
      exercise as viewed from the defendant’s standpoint.

      Therefore, if you find from the evidence beyond a reasonable doubt
      that on or about the 24th day of May, 2013, in Harris County, Texas,
      the defendant, Christopher Ernest Braughton, did then and there
      unlawfully, recklessly, as that term is hereinbefore defined, cause the
      death of Emmanuel Dominguez by shooting Emmanuel Dominguez
      with a deadly weapon, namely, a firearm, then you will find the
      defendant guilty of manslaughter.



                                          52
      Thus, the jury was not placed in the position of either convicting for a

greater offense in which it had reasonable doubt or releasing entirely from criminal

liability a person it was convinced was a wrongdoer. See Masterson, 155 S.W.3d at

171. The intervening lesser-included offense of manslaughter served as an

available compromise, affording the jury the opportunity to hold Chris accountable

without having to find him guilty of murder. Id. If the jury believed Chris lacked

the requisite intent for murder, it would have convicted him only of manslaughter;

its rejection of manslaughter (and Chris’s defenses) indicates that it legitimately

believed he committed murder. See id. at 171–72 (holding that any error caused by

not instructing jury on criminally negligent homicide was harmless when

defendant was convicted of charged offense of capital murder and jury rejected

lesser-included intermediate offense of manslaughter).16



16
      See also Orona v. State, 341 S.W.3d 452, 462 (Tex. App.—Fort Worth 2011, pet.
      ref’d) (holding that conviction for murder despite availability of manslaughter
      showed that jury believed defendant possessed specific intent required for
      murder); Flores v. State, 215 S.W.3d 520, 530–31 (Tex. App.—Beaumont 2007)
      (holding that any error in not instructing jury on felony murder was harmless when
      trial court instructed jury on manslaughter and injury to child and jury found
      defendant guilty of greater charged offense), aff’d, 245 S.W.3d 432 (Tex. Crim.
      App. 2008); Reed v. State, No. 01-13-00768-CR, 2014 WL 3697797, at *5 n.3
      (Tex. App.—Houston [1st Dist.] July 24, 2014, no pet.) (mem. op., not designated
      for publication) (“Even assuming that [the defendant] was entitled to the
      manslaughter instruction, the omission of that instruction was harmless because
      the jury rejected the lesser-included intermediate offense of felony murder and
      found sufficient evidence to convict him of the charged offense of capital
      murder.”).

                                          53
      Second, the intervening lesser-included offense that the jury rejected,

manslaughter, was just as plausible as the omitted lesser-included offense, deadly

conduct. Manslaughter’s intent requirement is lower than that of felony deadly

conduct. Compare TEX. PENAL CODE § 19.04(a) (manslaughter requires proof of

recklessness), with id. §§ 22.05(b)(1), 22.05(e) (felony deadly conduct requires

knowing conduct). And it is undisputed that at the time of his deliberate firing of

the gun he had loaded, Chris was aware that he was (1) an inexperienced shooter,

(2) shooting at close range, (3) from a posture that compromised his aim, while (4)

aiming in the general direction of Dominguez’s arm. Accepting Chris’s argument

that the jury could have concluded that he intended only to scare Dominguez and

lacked an intent to actually hit him, it would have been equally plausible for the

jury to believe he was reckless about the substantial and unjustified risk that he

would actually hit Dominguez and kill him, so as to find him guilty of

manslaughter.17 See Britain, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013)

(“Manslaughter is a result-oriented offense: the mental state must relate to the

results of the defendant’s actions.”); Schroeder v. State, 123 S.W.3d 398, 400 (Tex.

Crim. App. 2003) (noting that examples of manslaughter include “an accidental

discharge of a firearm, a lack of intent to kill, or a physical struggle between the


17
      The jury’s rejection of Chris’s claims that he acted in self-defense and in defense
      of others shows that the risk was unjustified.

                                          54
defendant and the victim”); Shanklin v. State, 190 S.W.3d 154, 159–60 (Tex.

App.—Houston [1st Dist.] 2005, pet. dism’d) (holding that defendant who “shot in

the group’s direction” to “scatter” them was entitled to manslaughter instruction);

Hernandez v. State, 742 S.W.2d 841, 843 (Tex. App.—Corpus Christi 1987, no

pet.) (holding defendant who fired “to scare” entitled to involuntary manslaughter

charge).

      Because manslaughter was just as plausible a theory as deadly conduct, and

because the jury rejected manslaughter under the evidence presented, we hold that

Chris was not harmed by the trial court’s refusal to include his requested

instruction on the lesser-included offense of deadly conduct. Accordingly, we

overrule Chris’s third issue.




                                        55
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Keyes, Brown, and Huddle.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




                                        56
