                                  MEMORANDUM OPINION
                                          No. 04-11-00327-CR

                                      Ismael Marcos GARZA, Sr.,
                                              Appellant

                                                     v.

                                          The STATE of Texas,
                                                Appellee

                      From the 79th Judicial District Court, Brooks County, Texas
                                   Trial Court No. 10-07-10507-CR
                            Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: March 14, 2012

AFFIRMED

           Ismael Marcos Garza, Sr. appeals from his conviction for manslaughter and sentence of

twenty years’ imprisonment. We affirm the trial court’s judgment.

                                                ANALYSIS

           Garza raises a single issue on appeal, asserting the trial court erred in refusing his request

for a lesser-included offense instruction on criminally negligent homicide. Garza was indicted

for murder, but was convicted of the lesser-included offense of manslaughter. See TEX. PENAL
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CODE ANN. § 19.02(b)(2) (West 2011) (a person commits 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. at § 19.04(a) (West 2011) (a person commits manslaughter if he recklessly causes

the death of an individual). In addition to the submitted instruction on manslaughter as a lesser-

included offense of murder, Garza also requested a jury instruction on criminally negligent

homicide as a lesser-included offense. See TEX. PENAL CODE ANN. § 19.05(a) (West 2011) (a

person commits criminally negligent homicide if he causes the death of an individual by criminal

negligence). The trial court denied the request, finding that criminally negligent homicide was

not raised by the evidence.

       In reviewing a trial court’s denial of a requested instruction on a lesser-included offense,

we engage in a two-part analysis, determining (1) whether the offense is a lesser-included

offense of the charged offense, which is a question of law, and, (2) if so, whether there is some

evidence in the record that supports giving the lesser-included offense instruction. Goad v. State,

No. PD-0435-11, 2011 WL 5375119, at *2 (Tex. Crim. App. Nov. 9, 2011); Hall v. State, 225

S.W.3d 524, 535-37 (Tex. Crim. App. 2007). “A defendant is entitled to an instruction on a

lesser-included offense where the proof for the offense charged includes the proof necessary to

establish the lesser-included offense and there is some evidence in the record that would permit a

jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included

offense.” Hall, 225 S.W.3d at 536 (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.

App. 1994)); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).

       Under the first step of the analysis, the court compares the elements of the greater offense

as alleged in the indictment with the elements of the potential lesser-included offense as stated in

the Penal Code. Hall, 225 S.W.3d at 535 (holding the cognate pleadings approach is the correct



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test for determining whether an offense is a lesser-included offense of a greater charged offense);

see TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006) (defining a lesser-included offense). In

the second step, we ask whether any evidence was adduced at trial that would permit a jury to

rationally find that the defendant, if guilty, is guilty only of the lesser-included offense. Hall,

225 S.W.3d at 536; Bignall, 887 S.W.2d at 23-24. There must be some evidence directly

germane to the lesser-included offense before an instruction is warranted. Goad, 2011 WL

5375119, at *2 (citing Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)).

Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser-included

charge, and a defendant’s testimony alone may be sufficient to raise an issue. Hall, 225 S.W.3d

at 536; Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). The evidence must also

establish that the lesser-included offense is “a valid, rational alternative to the charged offense.”

Hall, 225 S.W.3d at 536 (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999)

(quoting Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997)). The court determines

whether the lesser offense is a valid, rational alternative to the charged offense by examining the

evidence tending to support the lesser offense in the context of all the evidence presented at trial;

the court does not make any credibility assessments when conducting the lesser-included

analysis. Goad, 2011 WL 5375119, at *2; Young v. State, 283 S.W.3d 854, 875-76 (Tex. Crim.

App. 2009).

       Turning to the second prong first, we consider the record to determine whether there is

some evidence which would permit a jury to rationally find that Garza is guilty only of

criminally negligent homicide. Hall, 225 S.W.3d at 536. The degree of culpable mental state

required for criminally negligent homicide is less than the culpable mental states required for

murder and manslaughter, which require intentional conduct and reckless conduct, respectively.



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TEX. PENAL CODE ANN. §§ 6.03(a) (West 2011), 19.02(b)(2) (murder); id. at §§ 6.03(c) (West

2011), 19.04 (manslaughter). A person engages in intentional conduct when it is his conscious

desire to cause the result. Id. at § 6.03(a). A person acts recklessly when he is aware of, but

consciously disregards, a substantial and unjustifiable risk that his conduct will cause a certain

result to occur. Id. at § 6.03(c). A person acts with criminal negligence if he ought to be aware

of a substantial and unjustifiable risk that his conduct will cause a particular result, but fails to

perceive the risk. Id. at § 6.03(d) (West 2011) (“[T]he risk must be of such a nature and degree

that the failure to perceive it 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.”).

       Garza argues that because he testified he did not intend to kill Munoz, and stabbed him

because he thought Munoz “was going to mess with him,” that shows he acted negligently,

failing to perceive the substantial risk that his conduct could cause Munoz’s death; therefore, he

was entitled to a charge on the lesser offense of criminally negligent homicide. Garza overlooks

the requirement that there must be evidence that he was guilty only of criminally negligent

homicide; in other words, there must be some evidence on which the jury could have rationally

acquitted Garza of the greater offenses of murder and manslaughter, while convicting him of the

lesser offense of criminally negligent homicide. See Mathis v. State, 67 S.W.3d 918, 925 (Tex.

Crim. App. 2002). To make such a finding, the evidence must establish criminally negligent

homicide as a valid, rational alternative to the two greater offenses. Hall, 225 S.W.3d at 536.

       At trial, Garza admitted stabbing Munoz once in his upper chest, and it was undisputed

that Munoz suffered serious bodily injury, the severance of a major artery, which resulted in his

death shortly after being stabbed. Garza testified to prior interactions with Munoz in the months



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preceding the stabbing, stating that Munoz had stolen a guitar from Garza’s house, had stolen

Garza’s wallet, and used to “mess with” Garza by poking him with a screwdriver; Garza also

testified that Munoz was a gang member. On the day of the stabbing, Garza, who had been

drinking beer, was a backseat passenger in a parked car when a truck pulled up alongside the car

with Munoz in the passenger seat. Garza testified he saw Munoz bend down as if looking for

something under the seat and he thought Munoz was reaching for his screwdriver, so Garza got

out of the car. Garza stated he pulled out his knife as soon as he stepped out of the car, walked

over to the passenger side of the truck, and reached into the car and stabbed Munoz in the upper

right chest; Munoz fell back in the seat and died shortly after. Garza admitted this was the first

time he had seen Munoz since Munoz stole his wallet, but denied he was angry. Garza also

testified that he did not want to kill Munoz, but thought Munoz was going to hurt him. Garza

conceded that Munoz did not say or do anything to him on the day of the stabbing. The driver of

the truck testified he heard Garza say, “You stole my wallet” before he stabbed Munoz; he did

not hear Munoz say anything to Garza. Other witnesses testified they saw Garza walk up to the

truck where Munoz was seated and reach into the open window, make a quick action, and walk

away. Finally, Garza stated that he carries the knife for protection when he leaves the house, has

had the knife for quite a while, and uses it every day at his ranch; he has never had to use the

knife to defend himself. Garza received an instruction on self-defense and a lesser-included

instruction on recklessly causing Munoz’s death, i.e., manslaughter, based on his direct

testimony he did not intend to kill Munoz. The jury rejected Garza’s claim of self-defense, and

found him guilty of manslaughter.

       There is no evidence that Garza was unaware of the risk that death could result from his

act of stabbing Munoz. Garza admitted to the intentional act of stabbing Munoz; he never said



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the stabbing was an accident. Although Garza stated he did not mean to kill Munoz, Garza never

stated he did not know that stabbing someone could cause their death. The evidence that Garza

used the knife often and had owned it for a long time supports a reasonable inference that he was

familiar with its properties and aware of its ability to cause serious bodily injury and death.

Further, the evidence showed Garza was the aggressor on that day. Instead of remaining in the

car, Garza got out, immediately pulled out his knife, and directly walked up to the passenger

window of the truck, reached inside and stabbed Munoz. All the witnesses testified the incident

was over in a matter of seconds, and that Munoz did not say or do anything to provoke Garza.

There was no evidentiary basis for the jury to acquit Garza of the greater offenses of murder and

manslaughter, while convicting him of criminally negligent homicide because it is not a valid,

rational alternative to the two greater offenses. See Hall, 225 S.W.3d at 536; see also Mathis, 67

S.W.3d at 925. Because we conclude there is no evidence that Garza was guilty only of

criminally negligent homicide, we conclude the trial court did not err in denying Garza’s request

for an instruction on criminally negligent homicide. Accordingly, we overrule Garza’s sole issue

on appeal.

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



                                                     Phylis J. Speedlin, Justice

DO NOT PUBLISH




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