Affirmed and Memorandum Opinion filed May 31, 2012




                                          In The


                      Fourteenth Court of Appeals

                                  NO. 14-11-00378-CR




                        JEWEN LATRELL PRICE, Appellant,


                                             V.

                          THE STATE OF TEXAS, Appellee.


                       On Appeal from the 180th District Court
                                   Harris County
                           Trial Court Cause No. 1211489



                         MEMORANDUM OPINION

       Appellant Jewen Latrell Price was indicted for murder and convicted by a jury of
the lesser-included offense of manslaughter. On appeal, he asserts the trial court erred by
refusing to instruct the jury on three additional lesser-included offenses. We affirm.

                                             I

       On April 12, 2009, Price confronted Laquita Hudson when she left her church’s
Easter service. The two argued heatedly about the custody of their son. Price and Oneal
Hudson—one of Laquita’s brothers—engaged in a fistfight and were eventually
separated. The police detained Price briefly.

       That evening, Price arrived uninvited at Laquita’s mother’s house as the family
was preparing for Easter dinner. Laquita, her mother, and her two brothers—Oneal and
Arthur Hudson—approached Price, who remained in his car. Price demanded his son and
warned Laquita and her family that they would be “in trouble” if they did not give him
his son. Price was brandishing his pistol throughout the argument. As the argument
escalated, Laquita picked up a beer bottle and threw it at Price’s car, shattering the back
window. Price responded by firing once, hitting Arthur. He sped off after Arthur fell to
the ground.

       Price requested jury instructions on several lesser-included offenses, but was
granted an instruction on manslaughter only. The jury convicted him of manslaughter. On
appeal, he raises three issues: (1) the trial court erred in failing to instruct on felony
deadly conduct; (2) the trial court erred in failing to instruct on criminally negligent
homicide; and (3) the trial court erred in failing to instruct on misdemeanor deadly
conduct.

                                                II

                                                A

       In deciding whether the jury should have been charged on a lesser-included
offense, we apply a two-prong test. Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App.
2007); Nickerson v. State, 312 S.W.3d 250, 260 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d). First, we determine whether the offense is a lesser-included offense of the
alleged offense. Hall, 225 S.W.3d at 535; Nickerson, 312 S.W.3d at 260. Second, we
determine whether there is some evidence in the record that would permit a jury
rationally to find that, if the defendant is guilty, he is guilty only of the lesser-included
offense. Hall, 225 S.W.3d at 536; Nickerson, 312 S.W.3d at 260. The evidence must
establish the lesser-included offense as a valid, rational alternative to the charged offense.
                                              2
Hall, 225 S.W.3d at 536; Nickerson, 312 S.W.3d at 260. The evidence need not be
particularly convincing; anything more than a mere scintilla of evidence will suffice.
Hall, 225 S.W.3d at 536; Nickerson, 312 S.W.3d at 260.

                                             B

                                             1

       We address Price’s two issues on deadly conduct together. Without deciding
whether Price preserved any error on the misdemeanor deadly-conduct instruction, we
conclude that he was not entitled to an instruction on either misdemeanor or felony
deadly conduct.

       A person commits the Class A misdemeanor offense of deadly conduct when he
“recklessly engages in conduct that places another in imminent danger of serious bodily
injury,” Tex. Penal Code § 22.05(a). A person commits the third-degree felony offense of
deadly conduct when he “knowingly discharges a firearm at or in the direction of one or
more individuals.” Id. § 22.05(b)(1). We have said in a similar case that two things
distinguish deadly conduct from murder. See Ortiz v. State, 144 S.W.3d 225, 233–34
(Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (en banc). Prosecution for deadly
conduct “reliev[es] the State of proving (1) an intentional act and (2) the death of an
individual,” both of which it would need to prove for a murder conviction. Id. Price
concedes Arthur’s death but argues that he did not have the requisite intent.

       Price contends that, because he was so frightened, he did not aim at any particular
person and instead fired wildly at the family members. He testified that he had no idea
which family member his bullet would hit, but admitted they were all in danger: “It could
have been anybody.” Price asserts that, because the bullet was just as likely to hit the
other family members, a jury could have rationally found that he did not have the intent
to kill Arthur, and as a result, he was entitled to an instruction on deadly conduct as a
lesser included offense. See Tex. Code Crim. Proc. art. 37.09(a). We disagree.


                                             3
       It is true that deadly conduct may be a lesser-included offense of murder, but our
analysis does not end there. A defendant is entitled to an instruction on a lesser-included
offense only when there is some evidence in the record that would permit a jury
rationally to find that, if the defendant is guilty, he is guilty only of the lesser-included
offense. Hall, 225 S.W.3d at 536; Nickerson, 312 S.W.3d at 260. There is no such
evidence in the record before us. Price admits to shooting his gun and does not allege that
anything else could have caused Arthur’s death. He only disputes the State’s
characterization of his mental culpability when he pulled the trigger. There is no evidence
at all that Price did anything other than cause Arthur’s death, so no rational jury could
find him guilty of deadly conduct without finding him guilty of homicide. See Jackson v.
State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999) (per curiam). A murder defendant is
not entitled to an instruction on the lesser-included offense of deadly conduct when the
evidence showed him, at the least, to be guilty of homicide. See id. The trial court did not
err in refusing to instruct the jury on deadly conduct, and we overrule Price’s first and
third issues.

                                             2

       Price’s second issue is the trial court’s refusal to instruct the jury on criminally
negligent homicide. A person commits the state-jail felony offense of criminally
negligent homicide when he “causes the death of an individual by criminal negligence.”
Tex. Penal Code § 19.05. A person acts with criminal negligence “with respect to
circumstances surrounding his conduct or the result of his conduct when he ought to be
aware of a substantial and unjustifiable risk that the circumstances exist or the result will
occur.” Tex. Penal Code § 6.03(d).

       Criminally negligent homicide is a lesser-included offense of murder. Jackson v.
State, 248 S.W.3d 369, 371 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Again, our
analysis does not end there. The key to criminal negligence is the failure of the actor to
perceive the risk created by his conduct. Id. Before an instruction on criminally negligent

                                             4
homicide is required, the record must contain evidence showing the unawareness of the
risk. Id. at 371–72. Evidence that a defendant knows a gun is loaded, that he is familiar
with guns and their potential for injury, and that he points a gun at another, indicates a
person who is aware of the risk created by that conduct and disregards that risk. Thomas
v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985); Trujillo v. State, 227 S.W.3d 164,
168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Such a person is at least reckless.
Thomas, 699 S.W.2d at 850; Trujillo, 227 S.W.3d at 168.

      Testimony indicated that Price “always carried a gun,” and Price has not claimed
he was unaware of the danger posed by his conduct. Instead, his testimony indicated that
he was acutely aware that his conduct put several people in danger: “So many of them
was [sic] moving around, I didn’t know Arthur was going to be right there. That could
have been [Laquita’s mother], Arthur, Quita. It could have been anybody.” He repeatedly
says that he fired in self-defense, but self-defense does not equate to an unawareness of
risk. See Johnson v. State, 915 S.W.2d 653, 658–59 (Tex. App.—Houston [14th Dist.]
1996, pet ref’d). Because the evidence does not raise the issue of criminally negligent
homicide, the trial court did not err in refusing the instruction Price requested. We
overrule Price’s second issue.

                                          ***

      For the foregoing reasons, we affirm the trial court’s judgment.




                                         /s/       Jeffrey V. Brown
                                                   Justice



Panel consists of Justices Frost, Brown, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
                                               5
