                                                                            ACCEPTED
                                                                       12-14-00255-CR
                                                           TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                  4/2/2015 11:53:14 PM
                                                                          CATHY LUSK
                                                                                CLERK

             NUMBER 12-14-00255-CR
                                                       FILED IN
                                                12th COURT OF APPEALS
IN THE TWELFTH DISTRICT COURT OF                APPEALS
                                                     TYLER, TEXAS
              TYLER, TEXAS                      4/2/2015 11:53:14 PM
                                                     CATHY S. LUSK
                                                         Clerk

           DENNIS MONTRELL BENDY,
                       Appellant

                            v.

              THE STATE OF TEXAS,
                        Appellee

   From the 241st District Court of Smith County, Texas
            Trial Cause Number 241-1575-13


                   STATE’S BRIEF


     ORAL ARGUMENT NOT REQUESTED

                 D. MATT BINGHAM
                Criminal District Attorney
                 Smith County, Texas

                   AARON REDIKER
                Assistant District Attorney
          State Bar of Texas Number 24046692
           Smith County Courthouse, 4th Floor
                   Tyler, Texas 75702
                 Phone: (903) 590-1720
                  Fax: (903) 590-1719
           Email: arediker@smith-county.com
                                              TABLE OF CONTENTS

Index of Authorities ....................................................................................................2
Statement of Facts ......................................................................................................3
Summary of Argument ...............................................................................................4
I.Issue: As there was at least some non-accomplice evidence that tended to connect
appellant with the victim’s murder, the accomplice witness testimony introduced at
trial was sufficiently corroborated. ..............................................................................5
Standard of Review .....................................................................................................5
Argument ....................................................................................................................6
   A) Accomplice Witness Testimony ........................................................................7
   B) Non-accomplice Evidence .................................................................................9
II.Issue Two: As appellant did not present affirmative evidence raising the lesser-
included offense or that rebutted or negated his intent to commit murder, the trial court
properly refused a jury instruction on manslaughter. ................................................13
Standard of Review ...................................................................................................13
Argument ..................................................................................................................14
Certificate of Compliance ........................................................................................20
Certificate of Service ................................................................................................20




                                                              1
                                        INDEX OF AUTHORITIES

Texas Cases

Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994)..........................................14
Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) ........................................10
Brown v. State, 672 S.W.2d 487 (Tex. Crim. App. 1984) ........................................11
Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) ......................................14
Cocke v. State, 201 S.W.3d 744 (Tex. Crim. App. 2006) .........................................12
Cockrum v. State, 758 S.W.2d 577 (Tex. Crim. App. 1988).....................................11
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) .......................................12
Gill v. State, 873 S.W.2d 45 (Tex. Crim. App. 1994) ...............................................12
Godsey v. State, 719 S.W.2d 578 (Tex. Crim. App. 1986) .......................................18
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ............................................13
Hatton v. State, 31 Tex. Crim. 586, 21 S.W. 679 (1893) ..........................................18
Joubert v. State, 235 S.W.3d 729 (Tex. Crim. App. 2007) .........................................6
Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001) ..........................................14
McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) ............................... 5, 6, 9
Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999) ...........................................18
Patterson v. State, 950 S.W.2d 196 (Tex. App.—Dallas 1997, pet. ref’d) ... 16, 17, 19
Rojas v. State, 171 S.W.3d 442 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)19
Roys v. State, 416 S.W.3d 229 (Tex. App.—Amarillo 2013, pet. ref’d) ...................11
Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011) ........................... 5, 7, 11, 12
Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App. 1992) ........................................18
Wortham v. State, 412 S.W.3d 552 (Tex. Crim. App. 2013) ....................................13


Texas Statutes

Tex. Code Crim. Proc. Ann. art. 36.14.....................................................................13
Tex. Code Crim. Proc. Ann. art. 38.14.......................................................................6
Tex. Penal Code Ann. § 19.02 ..................................................................................15
Tex. Penal Code Ann. § 19.04 ..................................................................................15
Tex. Penal Code Ann. § 6.03 ....................................................................................15




                                                        2
                           NUMBER 12-14-00255-CR


            IN THE TWELFTH DISTRICT COURT OF APPEALS
                          TYLER, TEXAS


                         DENNIS MONTRELL BENDY,
                                 Appellant

                                          v.

                             THE STATE OF TEXAS,
                                   Appellee

             From the 241st District Court of Smith County, Texas
                      Trial Cause Number 241-1575-13


                                 STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant Criminal

District Attorney, respectfully requesting that this Court overrule appellant’s alleged

issues and affirm the judgment of the trial court in the above-captioned cause.


                                STATEMENT OF FACTS

   Appellant has stated the essential nature of the proceedings and the evidence

presented at trial (Appellant's Br. 2-4). In the interest of judicial economy, any other




                                           3
facts not mentioned therein that may be relevant to the disposition of appellant's issues

will be discussed in the State's arguments in response.


                              SUMMARY OF ARGUMENT

   The non-accomplice evidence introduced at appellant’s trial for the murder of

Briana Young strongly tended to connect him with the charged offense. This evidence

showed that appellant was with the accomplice shortly before the murder in the vehicle

identified by an eyewitness as belonging to the shooters, he was also close to the scene

of the crime at the time of the murder based on cell phone records, and he enlisted a

witness’s aid in disposing of one of the weapons used in the shooting. Regarding his

second alleged issue, appellant did not present any affirmative evidence that both

raised the lesser-included offense of manslaughter and that rebutted or negated his

intent to commit the charged offense of murder. The evidence relied on in appellant’s

brief would not permit a jury to rationally conclude that if he was guilty, he was guilty

only of the lesser-included offense of involuntary manslaughter.




                                           4
I. ISSUE: As there was at least some non-accomplice evidence that tended
to connect appellant with the victim’s murder, the accomplice witness
testimony introduced at trial was sufficiently corroborated.

                              STANDARD OF REVIEW

   “The test for sufficient corroboration is to eliminate from consideration the

accomplice testimony and then examine the other inculpatory evidence to ascertain

whether the remaining evidence tends to connect the defendant with the offense. In

order to determine whether the accomplice witness testimony is corroborated, we

eliminate all accomplice evidence and determine whether the other inculpatory facts

and circumstances in evidence tend to connect appellant to the offense.” McDuff v.

State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997) (citations omitted). In Smith v.

State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011), the Court of Criminal Appeals

further explained that:

      When reviewing the sufficiency of non-accomplice evidence under Article
      38.14, we decide whether the inculpatory evidence tends to connect the accused
      to the commission of the offense. The sufficiency of non-accomplice evidence
      is judged according to the particular facts and circumstances of each case. The
      direct or circumstantial non-accomplice evidence is sufficient corroboration if
      it shows that rational jurors could have found that it sufficiently tended to
      connect the accused to the offense. So when there are conflicting views of the
      evidence—one that tends to connect the accused to the offense and one that
      does not—we will defer to the factfinder's resolution of the evidence. Therefore,
      it is not appropriate for appellate courts to independently construe the non-
      accomplice evidence. (footnotes omitted).




                                          5
“The non-accomplice evidence does not have to directly link appellant to the crime,

nor does it alone have to establish his guilt beyond a reasonable doubt; but rather, the

non-accomplice evidence merely has to tend to connect appellant to the offense. Thus

there must simply be some non-accomplice evidence which tends to connect appellant

to the commission of the offense alleged in the indictment.” McDuff, 939 S.W.2d at

613 (citation omitted). “The appellant's liability as a principal or under a parties theory

is of no relevance under an Article 38.14 analysis . . . the connection need not establish

the exact nature of his involvement (as a principal or party).” Joubert v. State, 235

S.W.3d 729, 731 (Tex. Crim. App. 2007).


                                       ARGUMENT

   In his first alleged issue, appellant argues that the accomplice witness testimony

implicating him in Briana Young’s murder was not sufficiently corroborated at trial

(Appellant’s Br. 8-14). “A conviction cannot be had upon the testimony of an

accomplice unless corroborated by other evidence tending to connect the defendant

with the offense committed; and the corroboration is not sufficient if it merely shows

the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (West 2014).

“An accomplice is a person who participates in the offense before, during, or after its

commission with the requisite mental state. Presence at the crime scene does not make

a person an accomplice; an accomplice must have engaged in an affirmative act that
                                            6
promotes the commission of the offense that the accused committed.” Smith, 332

S.W.3d at 439 (footnotes omitted).

A) ACCOMPLICE WITNESS TESTIMONY

   The two witnesses named in the trial court’s accomplice witness instruction at the

guilt/innocence phase of trial were Rakheem Goldstein (“Booby”) and Stephan

Whitemon (“Sticky”) (Clerk’s R. at 194). Appellant, Booby, and Elisha Williams

(“E.J.”) were all members of the Rolling 60s criminal street gang at the time of the

offense (XII Rep.’s R. at 103, 109). At trial, Booby testified extensively regarding the

events leading up to and following Briana Young’s murder in P.T. Cole Park in Tyler

on the evening of 30 July 2013. Earlier that afternoon, appellant had called him to

complain that Ke’Avier Wilson-Hurd (“K.J.”), a rival gang member, had shot at

appellant while he was driving on Earl Campbell Road at approximately 6:30 p.m. (Id.

at 131, 134-35, 139). At 7 p.m., Booby and appellant met, and appellant expressed

his desire to “retaliate” against K.J. (Id. at 133, 140). Booby and appellant began

driving around to several locations within Tyler to pick up an assault rifle and a 9mm

Glock pistol (Id. at 141-42, 146, 148-51). After arming themselves, they switched

cars with Booby’s girlfriend, Madeline Wallace, at a Food Fast (Id. at 153-57).

Appellant and Booby did not want to be seen in appellant’s silver Lincoln sedan

anymore, as they were about to go looking for a guy they might shoot (Id. at 154).

                                           7
They exchanged the Lincoln for Ms. Wallace’s white Hyundai Elantra and left to pick

up E.J. with appellant driving and Booby in the passenger seat (Id. at 157-58).

Appellant is driving because Booby did not have a driver’s license and they did not

want the police to search the car if they happened to be pulled over (Id. at 158). They

brought extra shirts so they can change clothes if they happen to see K.J. (Id. at 159).

After picking up E.J. on Peach Street, E.J. receives a call that K.J. is in Cole Park, and

the three men take off with appellant in the driver’s seat, E.J. in the front passenger

seat, and Booby in the back seat (Id. at 160-61, 163). Appellant was carrying the

Glock, Booby the assault rifle, and E.J. had brought a Ruger SR9 9mm pistol (Id. at

127, 183). They arrived at the park at around 9 p.m., and when E.J. spotted K.J.,

appellant dropped him off on Shaw Street in order to ambush K.J. and prevent his

escape (Id. at 164, 166-67). Appellant then circled around to Mockingbird Lane,

stopped and exited the vehicle, and began shooting at K.J. with the Glock pistol (Id. at

170, 180, 182). Almost simultaneously, E.J. began firing at K.J. from the restroom

area closer to Shaw Street with the Ruger (Id. at 180, 182-83). K.J. managed to run

to his parked car without being hit by the gunfire, and appellant, Booby, and E.J. then

fled the scene (Id. at 185-86). About thirty minutes later, Booby learned that Ms.

Young had been shot and killed in the crossfire, and he and appellant then delivered

the Glock and assault rifle to Katyron Barrett’s (“Main”) house on Boon Street for

                                            8
disposal (XIII Rep.’s R. at 9-11, 15, 20-21). After getting rid of the weapons, appellant

and Booby switched cars with Ms. Wallace again and then went their separate ways

(Id. at 24, 26-27). The second accomplice witness named in the court’s charge,

Stephan Whitemon, testified that he did provide the assault rifle to appellant and

Booby on the day of the shooting and then took possession of the murder weapon, the

Ruger SR9 9mm pistol, from E.J. after Ms. Young had been shot to death (XVI Rep.’s

R. at 70-71, 74-77, 79-80, 83). Whitemon buried the pistol in his backyard before

later providing the weapon to law enforcement (Id. at 186-87).

B) NON-ACCOMPLICE EVIDENCE

   Ms. Wallace and her friend, Kiara Cain, who was with her at the time of the first

car exchange at Food Fast, both testified at trial, and they confirmed that Ms. Wallace

let Booby and appellant borrow her white Elantra close to the time of the murder (X

Rep.’s R. at 152-56, 168-69; XI Rep.’s R. at 22, 27-28). Surveillance footage at the

Food Fast also showed the car exchange with appellant occurring shortly after 8 pm

(X Rep.’s R. at 168; XI Rep.’s R. at 27; State’s Ex. 6). See McDuff, 939 S.W.2d at

613 (“Evidence that the defendant was in the company of the accomplice at or near

the time or place of the offense is proper corroborating evidence.”). Darrian Lee, an

associate of K.J. and fellow gang member, who was with him at Cole Park that night,

identified Ms. Wallace’s white Elantra as the vehicle that dropped off an individual on

                                           9
Shaw Street and then circled around to Mockingbird Lane (XII Rep.’s R. at 49, 54-56;

State’s Ex. 7). He testified that the ensuing gunfire came from the direction of the

Elantra on Mockingbird and the bathrooms close to where the individual had earlier

been let out of the same car on Shaw (Id. at 59-61, 67). Ballistics testing revealed that

the eight 9mm shell casings recovered near Mockingbird were fired from the Glock

pistol and the 11 shell casings found near the restrooms were fired from the Ruger SR9

(XVIII Rep.’s R. at 66-67, 70-71, 73-74, 76-77). The bullet retrieved from the victim’s

body during the autopsy had been fired from the Ruger (Id.). Ms. Young had received

a fatal gunshot wound to the heart and second gunshot wound to her left thigh (XVII

Rep.’s R. at 107, 111-13, 117, 127; State’s Ex. 209). Barrett testified that in the early

morning hours of 31 July 2013, appellant and Booby had arrived at his house in what

appeared to be the same white Elantra seen at the park (XIII Rep.’s R. at 204-06, 209-

11, 213-14, 217-18, 221). See Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App.

2008) (evidence that defendant was seen in vehicle that matched the description of the

one used by the perpetrators of the crime tends to connect him with the offense).

Booby handed over a bag containing the Glock and the assault rifle to another man at

the house, Tyiska Gray, who then dumped the guns in the woods (Id. at 206, 209-10,

214, 217; XIV Rep.’s R. at 12, 15). Barrett later led Tyler police officers to the

weapons (XVII Rep.’s R. at 66). See Cockrum v. State, 758 S.W.2d 577, 582 (Tex.

                                           10
Crim. App. 1988) (“Proof that connects an accused to a weapon used in an offense is

proper corroborative evidence. Even evidence that a defendant had a gun which was

merely similar to the murder weapon may corroborate accomplice testimony.”); Roys

v. State, 416 S.W.3d 229, 235 (Tex. App.—Amarillo 2013, pet. ref’d) (evidence that

defendant gave weapons used in committing the offense to a third party for disposal

tends, strongly, to connect him with the murder). The State also introduced cell phone

records and testimony from an RF engineer showing that calls from appellant’s cell

phone were placed near Cole Park to Barrett within several minutes of the murder

(XV Rep.’s R. at 33-34, 44, 46-47, 71-72). See Brown v. State, 672 S.W.2d 487, 489

(Tex. Crim. App. 1984) (“Proof that the accused was at or near the scene of the crime

at or about the time of its commission, when coupled with other suspicious

circumstances, may tend to connect the accused to the crime so as to furnish sufficient

corroboration to support a conviction.”); Smith, 332 S.W.3d at 442 (“Motive and

opportunity evidence is insufficient on its own to corroborate accomplice-witness

testimony, but both may be considered in connection with other evidence that tends to

connect the accused to the crime.”).

   Appellant argues, however, that Barrett, Cain, and Wallace were accomplices and

therefore their testimony could not serve to corroborate that of Booby and Whitemon

(Appellant’s Br. 9-12). “A person is not an accomplice if the person knew about the

                                          11
offense and failed to disclose it or helped the accused conceal it.” Smith, 332 S.W.3d

at 439. Merely assisting after the fact in disposing of a victim’s body or the murder

weapon does not transform a witness into an accomplice in a prosecution for murder.

Druery v. State, 225 S.W.3d 491, 500 (Tex. Crim. App. 2007). Further, appellant

does not point to any evidence in the record suggesting that Cain, Wallace, or Barrett,

acting with the required culpable mental state to cause the victim’s death, actively

participated with appellant before, during, or after the commission of the murder or

that they acted in a manner to promote the offense with which appellant was charged1.

See Smith, 332 S.W.3d at 439; Druery, 225 S.W.3d at 500; Cocke v. State, 201 S.W.3d

744, 748-749 (Tex. Crim. App. 2006); Roys, 416 S.W.3d at 234. Therefore, these

witnesses were not accomplice witnesses as a matter of law or fact, and their testimony

properly corroborated that of Booby and Whitemon. As “[r]easonable jurors could

conclude that that evidence, when viewed as a whole, tended to connect appellant to

the offense committed,” the non-accomplice evidence detailed above, including that

of Cain, Wallace, and Barrett, sufficiently corroborated the accomplice witness

testimony. See Gill v. State, 873 S.W.2d 45, 49 (Tex. Crim. App. 1994).




1
 Both Cain and Wallace denied any knowledge that appellant intended to use the Elantra to commit
a crime (X Rep.’s R. at 156; XI Rep.’s R. at 22).
                                              12
II. ISSUE TWO: As appellant did not present affirmative evidence raising the
lesser-included offense or that rebutted or negated his intent to commit murder,
the trial court properly refused a jury instruction on manslaughter.

                                STANDARD OF REVIEW

   “[T]he judge shall, before the argument begins, deliver to the jury, except in pleas

of guilty, where a jury has been waived, a written charge distinctly setting forth the

law applicable to the case . . .” Tex. Code Crim. Proc. Ann. art. 36.14 (West 2014).

In Hall v. State, the Court of Criminal Appeals “sets forth the two-part analysis used

to determine whether a defendant is entitled to a jury instruction on a lesser-included

offense.” Wortham v. State, 412 S.W.3d 552, 554 (Tex. Crim. App. 2013) (citing Hall

v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)). “Using the ‘cognate pleadings’

approach, an appellate court must first consider whether the offense contained in the

requested instruction is a lesser-included offense of the charged offense. If it is, the

court must then determine whether the evidence admitted at trial supports the

instruction.” Wortham, 412 S.W.3d at 554 (footnote omitted). Under the second part

of the analysis, “anything more than a scintilla of evidence may be sufficient to entitle

a defendant to a lesser charge. In other words, the evidence must establish the lesser-

included offense as a valid, rational alternative to the charged offense.” Hall, 225

S.W.3d at 536.




                                           13
                                         ARGUMENT

   In his second issue, appellant argues that the trial court erred in refusing to instruct

the jury on the offense of manslaughter as a lesser-included offense of murder

(Appellant’s Br. 15-21). As the Court of Criminal Appeals explained in Cavazos v.

State:

         “[A]nything more than a scintilla of evidence may be sufficient to entitle a
         defendant to a charge on a lesser offense. . . . If the evidence raised at trial casts
         doubt on the greater offense, a lesser-included offense instruction allows the
         jury to vote for a rational alternative. While it is true that 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
         Appellant is guilty, he is guilty only of the lesser-included offense. Meeting this
         threshold requires more than mere speculation—it requires affirmative evidence
         that both raises the lesser-included offense and rebuts or negates an element of
         the greater offense.

Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (citations omitted).

“[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the

greater offense; there must be some evidence directly germane to a lesser included

offense for the factfinder to consider before an instruction on a lesser included offense

is warranted.” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). “A

defendant’s own testimony that he committed no offense, or testimony which otherwise

shows that no offense occurred at all, is not adequate to raise the issue of a lesser-

included offense.” Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). Here,


                                              14
appellant challenges the trial court’s denial of the instruction under the second part of

the Hall analysis, alleging that the evidence was sufficient to establish manslaughter as

a valid, rational alternative to the charged offense of murder (Appellant’s Br. 15-21).

A person commits the offense of murder, “if he intentionally or knowingly causes the

death of an individual . . . or commits or attempts to commit a felony, other than

manslaughter, and in the course of and in furtherance of the commission or attempt,

or in immediate flight from the commission or attempt, he commits or attempts to

commit an act clearly dangerous to human life that causes the death of an individual.”

Tex. Penal Code Ann. § 19.02(b)(1), (3) (West 2014); Clerk’s R. at 1). “A person acts

intentionally, or with intent, with respect to the nature of his conduct or to a result of

his conduct when it is his conscious objective or desire to engage in the conduct or

cause the result.” Tex. Penal Code Ann. § 6.03(a) (West 2014). A person commits

the offense of manslaughter, “if he recklessly causes the death of an individual.” Tex.

Penal Code Ann. § 19.04(a) (West 2014). “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.” Tex. Penal Code Ann. § 6.03(c)

(West 2014). Nevertheless, appellant does not cite to any evidence in the record rising



                                           15
to the level that a rational jury could find that if he was guilty, he was guilty only of

manslaughter (Appellant’s Br. 17-19).

   Instead, appellant relies on Booby’s testimony that appellant only wanted to

“retaliate” for K.J.’s shooting at him earlier in the day, that Booby didn’t think they

would actually encounter K.J. that day, Booby and appellant did not discuss scaring,

hurting, or killing K.J. prior to the shooting, Booby did not think appellant was going

to start shooting at K.J., and appellant had reassured Booby that he had good aim when

Booby voiced his concern that there were a lot of people, including children, at the

park (XII Rep.’s R. at 140, 151-52, 165, 170). “The fact that the State, in proving

murder, also proves involuntary manslaughter does not alone entitle appellant to a

charge on the lesser offense.” Patterson v. State, 950 S.W.2d 196, 200 (Tex. App.—

Dallas 1997, pet. ref’d). In Patterson, the Fifth Court held that testimony very similar

to Booby’s did not constitute some evidence that, if the defendant was guilty, he was

guilty only of the lesser offense of manslaughter:

      He further relies on testimony of Christopher Chapman, part of the Sherman
      group. Chapman testified that before the shooting, Jackson said he was going
      to "do" the Denison group. Chapman "thought" this meant Jackson was going
      to fight them. Chapman never "foresaw" anyone wanting to kill the Denison
      group. Appellant acknowledges that this evidence could be interpreted to show
      he is guilty of murder. Nevertheless, he asserts that this same evidence could
      also be interpreted to show appellant did not intend to cause death or serious
      bodily injury and was, thus, guilty only of involuntary manslaughter. We agree
      with appellant that a lesser included offense may be raised when the evidence

                                           16
      on the issue is subject to two different interpretations, and one interpretation
      negates or rebuts an element of the greater offense. Schweinle v. State, 915
      S.W.2d 17, 19 (Tex. Crim. App. 1996)(per curiam). The evidence appellant
      relies on, however, while perhaps showing appellant was guilty of involuntary
      manslaughter, does not show he was not guilty of murder. Specifically, the
      evidence does not show appellant did not intend to cause death or serious bodily
      injury. That appellant chased the deceased's car and attempted to shoot at the
      moving vehicle does not show appellant did not intend to kill the deceased or
      cause the deceased serious bodily injury. Further, there is nothing in the record
      to show that appellant was not aiming the gun at the deceased inside the car.
      Nor did appellant assert he had no intent to kill or inflict serious bodily injury
      on the deceased. Further, evidence of fistfights and incidents of shooting at
      cars in the past does not negate appellant's intent on the date of the offense.
      Finally, Chapman's statement indicating he was unaware of appellant's intent to
      kill does not show appellant did not intend to kill the deceased or cause him
      serious bodily injury.

Patterson, 950 S.W.2d at 200-201. Here, as in Patterson, appellant did not testify or

present any evidence directly germane to a lesser included offense at trial. In fact,

Booby also testified that once they found out K.J. was in the park, appellant told Booby,

“Yeah, I’m going to get that nigger.” (XII Rep.’s R. at 163-64). After appellant, Booby,

and E.J. arrived at the park, it was Bendy who came up with the plan to let E.J. out on

Shaw street so that if K.J. ran that way, “he could shoot him.” (Id. at 166-67).

Appellant told E.J., “All right. Well, I’m going to let you off on this side, and, you

know, I’m going to be on this – I’m going back, and you just start shooting when I start

shooting.” (Id. at 167).




                                          17
   Furthermore, the evidence showed that appellant and E.J. fired 19 rounds into a

group of at least eight people in Cole Park on the night of the murder (XI Rep.’s R. at

86; XV Rep.’s R. at 245, 247-49; State’s Ex. 9). The specific intent to kill may be

inferred from the use of a deadly weapon, unless in the manner of its use it is

reasonably apparent that death or serious bodily injury could not result . . . ‘If a deadly

weapon is used in deadly manner, the inference is almost conclusive that he intended

to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a

deadly manner, the evidence must be established by other facts.’” Godsey v. State, 719

S.W.2d 578, 580-581 (Tex. Crim. App. 1986) (quoting Hatton v. State, 31 Tex. Crim.

586, 586-587, 21 S.W. 679 (1893)). For example, “[a]ppellant's use of a deadly

weapon in a tavern filled with patrons supplies ample evidence for a rational jury to

conclude beyond a reasonable doubt that Appellant had the requisite intent to kill.”

Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim. App. 1992). See Medina v. State, 7

S.W.3d 633, 636 (Tex. Crim. App. 1999) (evidence sufficient to prove defendant

acted "knowingly" in committing murder where defendant fired gun into crowd, killing

two people); Cavazos, 382 S.W.3d at 385 (no evidence directly germane to

recklessness, as “[p]ulling out a gun, pointing it at someone, pulling the trigger twice,

fleeing the scene (and the country), and later telling a friend ‘I didn't mean to shoot

anyone" does not rationally support an inference that Appellant acted recklessly at the

                                            18
moment he fired the shots.’”); Rojas v. State, 171 S.W.3d 442, 447 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d) (“The evidence supports the inference that

appellant knew his shooting the gun in the general direction of a group of people

including the four-year-old victim was reasonably certain to result in a death”). As

neither Booby’s testimony, nor any other evidence in this record, “would permit a jury

to rationally conclude that appellant is guilty only of consciously disregarding a known

substantial and unjustifiable risk that serious bodily injury or death would occur,” he

was not entitled to an instruction on the lesser-included offense of involuntary

manslaughter. See Patterson, 950 S.W.2d at 201; Cavazos, 382 S.W.3d at 385.

Appellant’s second issue is without merit and should be overruled.

                                       PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s alleged issues and affirm the judgment of the 241st District

Court of Smith County, Texas, in the above-captioned cause.

                                               Respectfully submitted,

                                               D. MATT BINGHAM
                                               Criminal District Attorney
                                               Smith County, Texas

                                               /s/ Aaron Rediker
                                               Aaron Rediker
                                               Assistant District Attorney

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                                              SBOT #: 24046692
                                              100 North Broadway, 4th Floor
                                              Tyler, Texas 75702
                                              Office: (903) 590-1720
                                              Fax: (903) 590-1719 (fax)
                                              arediker@smith-county.com


                          CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney

certifies that the word count for this document is 4,175 words as calculated by

Microsoft Word 2013.


                                              /s/ Aaron Rediker
                                              Aaron Rediker


                             CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 2nd day of April 2015, the State’s

Brief in the above-numbered cause has been electronically filed, and a legible copy of

the State's Brief has been sent by email to Austin R. Jackson, attorney for appellant,

at JLawAppeals@gmail.com.


                                              /s/ Aaron Rediker
                                              Aaron Rediker




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