                                NUMBER 13-10-00124-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

MICHAEL ANTHONY MANCHA,                                                                Appellant,

                                                 v.

THE STATE OF TEXAS                                                                      Appellee.


                      On appeal from the 139th District Court
                            of Hidalgo County, Texas.


              DISSENTING MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Wittig1
           Dissenting Memorandum Opinion by Justice Benavides

       I respectfully dissent from the majority’s opinion because I conclude that there is

no evidence in this case that would permit a rational jury to find Mancha guilty only of the

lesser offense of manslaughter.          See Mathis, 67 S.W.3d at 925 (citing Moore, 969

       1
         Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of
Texas pursuant to the government code. See TEX. GOV’T CODE ANN. § 74.003 (Vernon 2005).
S.W.2d at 8; Rousseau, 855 S.W.2d at 672) (discussing our standard of review in

questions of lesser-included offense jury charge error).

        I recognize, as the majority points out, that Mancha need only demonstrate ―some

harm‖ in this case and, further, that ―regardless of its strength or weakness, if any

evidence raises the issue that the defendant was guilty only of the lesser offense, then

the charge must be given.‖ See Ngo, 175 S.W.3d at 743-44; Saunders, 840 S.W.2d at

391.    Here, however, when evaluated under the proper framework, there was no

evidence that would allow a rational jury to find Mancha guilty only of manslaughter and

not murder.      As the majority makes clear, there was at least some evidence that

Mancha lacked the mens rea to be found guilty of murder under sections 19.02(b)(1) and

19.02(b)(2) of the Texas Penal Code.2 However, the majority fails to recognize the

additional requirement that the jury was also required to rationally find that Mancha was

not engaged in a felony—namely, robbery—at the time of the homicide.                            See TEX.

PENAL CODE ANN. § 19.02(b)(3) (Vernon 2003) (―A person commits [murder] if he . . .

commits or attempts to commit a felony, other than manslaughter, and in the course of

and in furtherance of the commission or attempt . . . he commits or attempts to commit

an act clearly dangerous to human life that causes the death of an individual.‖).

        Under section 19.02(b)(3), no culpable mental state is required in order for a jury




        2
           Section 19.02(b)(1) provides that a person commits the offense of murder if he ―intentionally or
knowingly causes the death of an individual.‖ TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003).
Section 19.02(b)(2) provides that a person commits the offense of murder if he ―intends to cause serious
bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.‖
Id. § 19.02(b)(2) (Vernon 2003). There was at least some evidence from Mancha’s statement that he did
not intentionally or knowingly kill Cahue and that he did not intend to cause serious bodily harm to Cahue
when he struck Cahue in the head, and it was within the province of the jury to resolve the conflict between
this evidence and the inferences regarding Mancha’s intent that the jury could draw from his actions.


                                                     2
to find a defendant guilty of felony murder. In Lomax, the court of criminal appeals

made this proposition clear, writing that in that case, the:

       [a]ppellant argue[d] that interpreting [s]ection 19.02(b)(3) to dispense with
       a culpable mental state renders murder under [s]ection 19.02(b)(3) a ―strict
       liability‖ offense and that ―murder is never a strict liability crime in Texas.‖
       While [s]ection 19.02(b)(3) might contain some features not normally
       associated with ―strict liability‖ offenses, on balance these features do not
       overcome the clear legislative intent to plainly dispense with a culpable
       mental state. And, deciding that [s]ection 19.02(b)(3) dispenses with a
       culpable mental state is consistent with the historical purpose of the
       felony-murder rule, the very essence of which is to make a person guilty of
       an ―unintentional‖ murder when he causes another person's death during
       the commission of some type of a felony. We hold that [s]ection
       19.02(b)(3) plainly dispenses with a culpable mental state.

Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim. App. 2007) (citations omitted).

Therefore, the majority’s distinction between a ―reckless‖ mental state and an ―intentional

or knowing‖ one is irrelevant if the defendant was indicted for an offense under which he

could be found guilty of felony murder under section 19.02(b)(3). To make the point

more salient, section 19.02(b)(3) of the penal code provides, by logical extension, that if

a defendant could be found guilty of manslaughter, and that manslaughter occurred in

furtherance or commission of another felony, the defendant would be guilty of murder

and could not rationally be found guilty only of the lesser offense.     See id.; TEX. PENAL

CODE ANN. § 19.02(b)(3).

       In this case, it was undisputed, and admitted by Mancha himself, that Mancha and

his cohorts were engaged in a second-degree-felony robbery of Miguel Cahue when the

homicide occurred; no evidence to the contrary was presented.          See TEX. PENAL CODE

ANN. § 29.02 (Vernon 2003) (robbery statute).         Additionally, it was undisputed that

Mancha sat on Cahue’s chest and hit Cahue in the head several times—though it was

disputed to what extent he hit Cahue with a foreign object.       Regardless, Texas courts

                                              3
have continuously held that strikes to the head and body are ―clearly dangerous to

human life‖ if delivered with enough force.       See, e.g., Ales v. State, 587 S.W.2d 686,

687 (Tex. Crim. App. 1979) (finding that ―strik[ing the deceased] about the body, legs

and arms with a board‖ was sufficient to constitute an act clearly dangerous to human

life); Depauw v. State, 658 S.W.2d 628, 634 (Tex. App.–Amarillo 1983, pet. ref’d)

(―[S]ince there is evidence that the deceased was hit in the head with a severe and

tremendous force, we believe that the jury could reasonably conclude that a kick to the

head by a person wearing a boot, at least when the kick is delivered with severe and

tremendous force, was an act clearly dangerous to human life.‖).

       Accordingly, in my view, it was not error in this case for the trial court to refuse to

instruct the jury on manslaughter because, even if the jury believed that Mancha had

only recklessly committed the homicide, the fact that he was engaged in a felony at the

time of the homicide would prevent any rational jury from finding him guilty only of the

lesser offense of manslaughter, and there was no evidence presented to create a fact

issue on the question.   See TEX. PENAL CODE ANN. § 19.02(b)(3); Lomax, 233 S.W.3d at

305.

       I should note, however, that the jury in this case was not instructed on the

definition of murder under section 19.02(b)(3).     The jury charge provided that ―a person

commits the offense of Murder when the person intentionally or knowingly causes the

death of an individual,‖ which is the proper definition of murder under section 19.02(b)(1).

No additional means by which the offense could be committed were included in the jury

charge, though all three means defined in section 19.02(b) (intentional murder, intent to

cause serious bodily injury murder, and felony murder) were authorized either as


                                              4
lesser-included offenses or directly by the indictment which provided that Mancha

―intentionally caused the death of an individual, namely, Miguel Cahue, by striking the

victim with his hand [or an object unknown to the grand jurors] and the defendant was

then and there in the course of committing or attempting to commit the offense of

robbery.‖    However, the fact that the jury was not instructed on a means of commission

of the offense that was authorized by the indictment is immaterial on appeal because our

review should be based on a hypothetically correct jury charge.

      In Malik, the court of criminal appeals held that our sufficiency review must be

under a hypothetically correct jury charge.       Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). Before Malik, we reviewed sufficiency based on the elements of the

offense as they were actually charged to the jury.     Id. at 238-40 (discussing the previous

rule under the Benson/Boozer standard).           The court was dissatisfied with this rule

because it

      produced different measurements for evidentiary sufficiency depending
      upon whether the State or the defendant benefitted from the instructions
      given. If the jury charge requires more than the law requires, and the
      State fails to object, then the State acquiesces in an increase in its burden
      of proof, and sufficiency of the evidence is measured by the charge. But,
      if the jury charge requires less than the law requires, and the defendant
      fails to object, the defendant is not treated as having acquiesced in a lesser
      burden of proof, and sufficiency of the evidence is measured by the
      elements of the offense rather than the charge. Presiding Judge Onion
      concluded that there appear to be different standards applied depending
      upon whose ox is gored.

Id. at 238-39 (internal citations and quotations omitted). The court additionally noted

that basing sufficiency review on the jury charge was problematic because it was at odds

with the goal of sufficiency review—namely, to guarantee that no person is convicted

upon insufficient evidence.    Id. at 239.    The court continued by noting that basing


                                              5
review on the jury charge ―permits, and in fact contemplates, that persons who are guilty

of the crime charged and convicted by a jury may nevertheless be acquitted on appeal

because the State failed to object to an erroneous and/or unnecessary instruction

favorable to the defendant.‖      Id. The Malik court concluded that the proper review,

therefore, should be based not on the jury charge, but rather, on the hypothetically

correct jury charge for the case.      Id. at 240.   This is defined as a jury charge that

―accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried.‖ Id.

       Although we are not dealing with a sufficiency review in this case, our standard of

review for charge error involving a lesser-included offense is an ―evaluation of the

evidence to determine whether there is some evidence that would permit a jury rationally

to find that the defendant is guilty only of the lesser offense.‖   See Mathis, 67 S.W.3d at

925 (citing Moore, 969 S.W.2d at 8; Rousseau, 855 S.W.2d at 672) (emphasis in

original).    If we limit our evaluation of this evidence to the language in the jury charge,

we allow the same harm in jury charge error reviews that the court of criminal appeals

found unacceptable in a sufficiency review.           Most importantly, such a limitation

undermines the goal of our jury charge error review in this case which seeks to ensure

that the jury did not convict the defendant of a more serious offense simply because a

lesser-included offense was not given as an option.       Cf. Malik, 953 S.W.2d at 239.     In

this case specifically, a failure to evaluate this case based on a hypothetically correct jury

charge requires that Mancha receive a new trial, even though he was found guilty of an


                                               6
offense which, had a hypothetically correct jury charge been given, would make it

completely irrational for the jury to find him guilty of only the lesser offense.

       Accordingly, when we evaluate the evidence presented in this case against a

hypothetically correct jury charge, no rational jury could find Mancha guilty only of

manslaughter because the evidence was clear and undisputed that Mancha committed

the homicide—whether reckless or intentional—in furtherance of a felony.            Therefore,

even if he would otherwise be guilty only of manslaughter, section 19.02(b)(3) requires

that he be found guilty of murder.      See TEX. PENAL CODE ANN. § 19.02(b)(3); Lomax,

233 S.W.3d at 305.      I consider Mancha’s other issues on appeal to be wholly without

merit, and therefore, I would affirm the trial court’s judgment.




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

Delivered and filed the
14th day of April, 2011.




                                               7
