                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-328-CR

WAYNE EDGAR EDWARDS                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one point, Appellant Wayne Edgar Edwards appeals his conviction for

murder, contending that the trial court erred by denying his request for jury

instructions on the lesser-included offenses of criminally negligent homicide and

manslaughter. We affirm.




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           See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      When Deborah Edwards returned home from work one evening, she saw

her estranged husband, Edwards, waiting nearby. Deborah stayed inside the

car and called her children, who were inside the house, to tell them to lock the

doors to the house. Edwards then walked up to the driver’s side window and

told her to roll down the window. She refused. He shot her in the face with

a 9-millimeter Tech-9 semi-automatic handgun.

      Later that evening, Arlington police arrested Edwards as he was on his

way to turn himself in. Police found a gun inside the trunk of the vehicle he

was in at the time of his arrest. Forensic tests later confirmed that it was the

same gun that killed Deborah.

      Edwards was indicted on alternate theories of murder.           The first

paragraph alleged that Edwards did “then and there intentionally or knowingly

cause[d] the death of an individual, Deborah Edwards, by shooting Deborah

Edwards with a deadly weapon to wit: a firearm[.]” The second paragraph

alleged that Edwards did “then and there intentionally, with the intent to cause

serious bodily injury to Deborah Edwards, commit an act clearly dangerous to

human life, namely, shoot Deborah Edwards with a deadly weapon to wit: a

firearm, which caused the death of Deborah Edwards[.]”




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      Edwards pleaded not guilty. During the trial, Arlington Police Officer Seth

Archer testified to statements Edwards made while being transported to the

Arlington City Jail. Officer Archer testified that Edwards told him, “I had the

gun in my hand, and she wouldn’t roll the window down, and the gun went

bang.” Officer Archer also testified that Edwards said that he had planned to

kill other family members and that he knew that what he did was wrong.

      At trial, the State published a video-recording of an interview taken when

Edwards was in custody. During the interview, Edwards said several times that

he had intended to kill his wife. He also stated that he had planned to kill her

mother and sister too.

      At the conclusion of the trial, Edwards requested jury instructions for the

lesser-included offenses of criminally negligent homicide and manslaughter. The

trial court denied his request.    The court’s charge presented the alternate

theories of murder as authorized by the indictment, and the jury found Edwards

guilty of murder and assessed punishment at ninety-nine years’ confinement

and a $10,000 fine.

                                  III. Discussion

      In his sole point, Edwards contends that the trial court erred by refusing

to instruct the jury on the lesser-included offenses of criminally negligent

homicide and manslaughter.


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A. Standard of Review

      We use a two-step analysis to determine whether an appellant was

entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d

524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666,

672–73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser

offense must come within article 37.09 of the code of criminal procedure. Tex.

Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d

4, 8 (Tex. Crim. App. 1998). “An offense is a lesser included offense if . . . it

differs from the offense charged only in the respect that a less culpable mental

state suffices to establish its commission.” Tex. Code Crim. Proc. Ann. art.

37.09(3).

      Second, some evidence must exist in the record that would permit a jury

to rationally find that if the appellant is guilty, he is guilty only of the lesser

offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741

(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. The evidence

must be evaluated in the context of the entire record. Moore, 969 S.W.2d at

8. There must be some evidence from which a rational jury could acquit the

appellant of the greater offense while convicting him of the lesser-included

offense. Id. The court may not consider whether the evidence is credible,

controverted, or in conflict with other evidence. Id. Anything more than a


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scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.

Hall, 225 S.W.3d at 536. If sufficient evidence of more than one theory of the

greater offense is presented to allow the jury to be charged on alternate

theories, the second prong of the test is satisfied only if there is evidence that,

if believed, refutes or negates every theory that elevates the offense from the

lesser to the greater. Arevalo v. State, 970 S.W.2d 547, 549 (Tex. Crim. App.

1998).

B. Lesser-Included Offenses

      Voluntary manslaughter is a lesser-included offense of murder under

article 37.09(3) of the code of criminal procedure. Moore, 969 S.W.2d at 9;

Kennedy v. State, 193 S.W.3d 645, 651 (Tex. App.—Fort Worth 2006, pet.

ref’d). Criminally negligent homicide is also a lesser-included offense of murder,

and it is a lesser-included offense of manslaughter because the two offenses

differ only in that criminally negligent homicide requires a less culpable mental

state. Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005); Lugo v.

State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984).

      1. Mens Rea

      To be found guilty of murder, an individual must intentionally or

knowingly cause the death of another or intend to cause serious bodily injury.

Tex. Penal Code Ann. § 19.02(b)(1)–(2) (Vernon 2003).              A person acts


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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. Id. § 6.03(a). He acts knowingly, or with

knowledge, 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).

      In contrast, to be found guilty of manslaughter, an individual must

recklessly cause the death of an individual. Id. § 19.04(a). A person acts

recklessly 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.     Id.

§ 6.03(c). For a defendant to be entitled to a jury charge on manslaughter,

there must be some evidence that the defendant did not intend to kill or cause

serious bodily injury and that the defendant acted recklessly while ignoring a

known risk. Kennedy, 193 S.W.3d at 651. Courts have typically found that

a manslaughter instruction is required when there is some evidence that a gun

discharged accidentally or that the defendant only intended to frighten the

victim. Arnold v. State, 234 S.W.3d 664, 672 (Tex. App.—Houston [14th

Dist.] 2007, no pet.). However, a defendant’s denial that he intended to kill the

victim does not, of itself, raise the issue of manslaughter. Id.




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      To be found guilty of criminally negligent homicide, an individual must

cause the death of an individual by criminal negligence. Tex. Penal Code Ann.

§ 19.05(a).     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. Id. § 6.03(d). The key to criminal negligence is

the actor’s failure to perceive the risk created by his conduct. Trujillo v. State,

227 S.W.3d 164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). If the

evidence shows that the actor’s awareness was such that he perceived the risk

he created, he is not entitled to a charge of criminally negligent homicide. Id.

      2. Analysis

      The record reflects that Edwards was not entitled to a lesser-included

offense instruction on either manslaughter or criminally negligent homicide.

      With regard to manslaughter, Edwards argues that the evidence

establishes that the gun discharged accidently and that Edwards wanted only

to speak with his wife and scare her. 2 Specifically, he refers to statements he




      2
        In support of this argument, Edwards states that the State addressed
the theory that the shooting was an accident during closing arguments.
However, jury arguments are not evidence; therefore, we will not consider them
in our analysis. See Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App.
1996).

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made to Officer Archer, statements he made during his videotaped interview,

and testimony by the State’s firearm expert in support of his contentions.

However, we must evaluate this evidence in the context of the entire record.

See Moore, 969 S.W.2d at 8.


      Edwards directs us to statements he gave to Officer Archer after being

arrested as support for his argument. While being taken to the Arlington City

Jail, Edwards told Officer Archer that he just wanted to talk to Deborah and he

“had the gun in [his] hand, and she wouldn’t roll the window down, and the

gun went bang.” Edwards argues that this statement creates the inference that

the gun discharged accidently, that he did not intend to murder Deborah, and

that his intention was to speak with her. However, the simple statement “the

gun went bang” says nothing about whether Edwards intentionally pulled the

trigger or whether it discharged accidently.      See Arnold, 234 S.W.3d at

671–72 (holding that defendant’s testimony that “the door flung open and I

felt-and the gun went off” did not create the inference that the gun accidentally

discharged).


      Edwards also points to his statement during his custodial interview that

he did not intend to hurt his wife.     This statement, however, “cannot be

plucked out of the record and examined in a vacuum.” Id. at 671–72 (quoting

Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). And any

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inference that Edwards unintentionally killed his wife is negated by the context

in which he made the statement in light of the rest of his interview. While

describing his plan to put his wife in the trunk of his car and torture her,

Edwards told the detective, “I never did intend to hurt my poor sweet wife, you

hear. But she had gone too far.” Other statements made in the interview make

it clear that Edwards fully intended to shoot his wife:


•     “I hurt somebody, . . . that’s not right, but it had to be done. . . . I had
      to stop my wife from doing what she was doing . . . .”


•     “I intended to take her and torture her. . . . I intended to go to her
      mother’s house and kill her sister who tortured me—they hurt me for
      years—and her mother, eighty years old, oh, I was going to blow her
      brains out for what she done to me.”


•     “I said, ‘Roll the window all the way down.’ That was a [sic] order. If
      she had of [sic] rolled that window down, she would be alive today.”


•     “She didn’t open the window, and I said, ‘Well, you just want to die right
      here.’ Pow! The thing went off.”


•     “But I did intend to kill her. I didn’t . . . go not to kill her.”


•     “I intended to kill her.”


•     “I definitely had to kill her for [allegedly sexually abusing their daughters]
      . . . she got away with it all this time.” 3


      3
        Officer Archer testified that Edwards said he believed his wife and
other family members had been sexually abusing their children for many years.

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      Finally, Edwards points to testimony of the State’s firearm expert, Jamie

Becker, who testified that the gun’s firing pin was defective so that sometimes

the gun fired as a semi-automatic weapon and sometimes as a fully automatic

weapon. However, Becker’s testimony also establishes that whether the gun

was fired in semi-automatic mode or in fully automatic mode, the trigger still

had to be pulled with five to seven pounds of pressure.        Nothing in this

testimony indicates that Edwards did not intentionally kill his wife or that he

acted with conscious disregard of a known risk. Rather, this evidence indicates

that the trigger had to be pulled for the gun to discharge.


      In sum, the evidence does not raise the issue of manslaughter.       The

evidence shows that Edwards had a plan to kidnap and torture his wife and

then to kill his mother-in-law and sister-in-law.   In furtherance of his plan,

Edwards went to his storage unit, retrieved his gun, went to his wife’s house,

and waited for her to get home. When his wife arrived home, Edwards walked

up to her car and told her to roll down the window. When she refused to do

so, he became angry, pointed the gun at her head, and pulled the trigger with

five to seven pounds of pressure. He then fled the scene of the crime. There

is no evidence of a lack of intent or that Edwards acted recklessly while


Arlington Police Officer Dara DeWall testified that Edwards had made these
allegations against his wife in 2001 and that the detective on the case
concluded the allegations were unfounded because of a lack of evidence.

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ignoring a known risk; rather the evidence shows a deliberate and voluntary act.

In light of the entire record, Edwards’s isolated statements do not constitute

evidence upon which a jury could rationally find that Edwards was guilty only

of manslaughter. See Arnold, 234 S.W.3d at 671–73 (holding that defendant’s

isolated statements that he was not aiming at the victim and did not intend to

kill him did not raise the issue of manslaughter where defendant also testified

that he meant to shoot the victim); Munoz v. State, 932 S.W.2d 242, 245–46

(Tex. App.—Texarkana 1996, no pet.) (holding that defendant’s testimony that

he did not remember shooting the victim but did not intend to kill him did not

raise the issue of manslaughter); Johnson v. State, 915 S.W.2d 653, 659 (Tex.

App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that defendant’s

statement that he did not intend to kill the victim did not raise the issue of

manslaughter when the defendant also testified that he shot the victim in self-

defense). We overrule this portion of Edwards’s sole point.


      The same evidence shows that Edwards was not entitled to an instruction

on criminally negligent homicide, because it conclusively shows that he clearly

perceived the risk posed by pointing the handgun at his wife. See Trujillo, 227

S.W.3d at 168. That is, Edwards owned the gun, indicating familiarity with it.

He knew the gun was loaded. He retrieved it as part of a plan to kidnap and

torture his wife. He used the gun to try to coerce his wife into rolling down the


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window. Because there is no evidence in the record to show that Edwards

failed to perceive the risk created by his conduct, and all the evidence indicates

that he did perceive that risk, the trial court did not err by refusing to give an

instruction on criminally negligent homicide. See Thomas v. State, 699 S.W.2d

845, 850 (Tex. Crim. App. 1985) (holding that 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 that he is aware of the risk

created by that conduct and disregards the risk); Jackson v. State, 248 S.W.3d

369, 373 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that using

a gun appellant knew to be loaded as a means to coerce an individual into

paying back money indicated that appellant perceived the risk posed by drawing

the weapon and chose to disregard that risk); Trujillo, 227 S.W.3d at 168

(holding that brandishing a loaded gun to frighten people indicates awareness

of a risk posed by a loaded gun). We overrule the remainder of Edwards’s sole

point.




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                               IV. Conclusion


     Having overruled Edwards’s sole point of error, we affirm the trial court’s

judgment.




                                           BOB MCCOY
                                           JUSTICE


PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.


DO NOT PUBLISH
Tex. R. App. P. 47.2(b)


DELIVERED: January 7, 2010




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