             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-19-00077-CV
      ___________________________

 IN THE MATTER OF A.M., A JUVENILE



   On Appeal from the 323rd District Court
           Tarrant County, Texas
       Trial Court No. 323-107645-18


Before Sudderth, C.J.; Birdwell and Womack, JJ.
  Memorandum Opinion by Justice Womack
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      A jury adjudicated A.M. delinquent after finding that she had engaged in

delinquent conduct by committing the offense of murder when she stabbed and

caused the death of N.L.1 The jury found that A.M. was in need of rehabilitation or

that the protection of the public or A.M. required a disposition and did not find that

A.M. had caused the death of N.L. under the immediate influence of sudden passion

arising from an adequate cause. The jury sentenced A.M. to commitment for twenty-

five years. The juvenile court adjudicated A.M. delinquent and sentenced her to

commitment in accordance with the jury’s disposition. The juvenile court also made

an affirmative finding that A.M. had used or exhibited a deadly weapon, a knife,

during the commission of the offense or during the immediate flight therefrom.

      In a single issue, A.M. appeals the juvenile court’s denial of her request that the

jury be charged on the lesser-included offense of manslaughter. We will affirm the

juvenile court’s judgment and commitment.



      1
        The petitioner (“the State”) waived prosecution under paragraph one of the
petition, which alleged that A.M. intentionally and knowingly caused the death of N.L.
and proceeded to seek adjudication under paragraph two, which alleged that A.M.
“did intentionally, with the intent to cause serious bodily injury to [N.L.], commit an
act clearly dangerous to human life, namely, stabbing [N.L.] with a knife, and thereby
caused the death of [N.L.].” The jury did not find that A.M. committed the offense
of aggravated assault against a different complainant, J.D., as alleged in paragraph
three of the petition.

                                           2
                                 II. BACKGROUND

A.    Witness Testimony

      These events involve four girls. At the time of trial, S.B and J.D. were fourteen

years old. On May 28, 2018, S.B., J.D., and A.M. went to N.L.’s house and planned to

spend the night with her. A.M., N.L., and J.D. lived near each other, and it was a one-

to two-minute walk between A.M.’s and N.L.’s apartments.

      Earlier in the day, the girls went swimming in Fort Worth and returned to

N.L.’s apartment where they listened to music and danced. In the evening, A.M. and

N.L. had a petty argument. J.D. went home with A.M., and later they went to a

nearby store for A.M.’s mother. During that time, S.B. and N.L. continued dancing

and listening to music at N.L.’s apartment. A.M. and N.L. messaged each other, and

S.B. observed that N.L. appeared to be angry.

      After delivering groceries to her mother, A.M. and J.D. walked back to N.L.’s

house for the purpose of retrieving A.M.’s clothes. J.D. stayed outside. A.M. was

angry when she left N.L.’s apartment. She slammed the door as she left and declared

to J.D. that she was going to fight N.L. J.D. and A.M. walked back to A.M.’s

apartment and arrived after midnight. J.D. tried to sleep, but A.M. was angry and

continued using her phone to message someone. A.M. eventually told J.D. to get up

and stated that N.L. was coming over. A.M. and J.D. began waiting outside A.M.’s

apartment at about 2:30 a.m.


                                          3
      After N.L. informed S.B. that she had to exchange some clothes with A.M.,

they walked to A.M.’s apartment and arrived at about 3:00 a.m. A.M. walked up to

N.L. S.B. was worried, and J.D. stayed on the sidewalk. According to S.B., N.L.

handed A.M.’s bag of clothes to her. A.M. set the bag on the ground behind her and

threw a bag of N.L.’s clothes at N.L.’s feet. S.B. observed that when N.L. attempted

to pick up the bag, A.M. “ran up on her and hit [N.L.]” about her face. N.L. started

to fight back. J.D. did not recall who started the fight. The two girls fought for about

two minutes before S.B. and J.D. broke up the fight and pulled A.M. and N.L. off

each other.

      A.M. and N.L. remained angry and cussed at each other after the fight. J.D.

told N.L. to go home. S.B. thought A.M. had finished fighting, but as A.M. walked

back to her apartment, S.B heard A.M. say, “I’m going to kill this bitch.” S.B. did not

think A.M. was serious. As she and N.L. began to walk away, N.L. returned to

retrieve her blanket from J.D. J.D. had stayed outside because she was worried about

N.L. She returned the blanket to N.L. but then told S.B. and N.L. to run. S.B. saw

A.M. running with a kitchen knife. J.D. was worried that A.M. was going to hurt N.L.

J.D. struggled with A.M. for about thirty seconds and attempted to grab the knife

from A.M.’s hand or make A.M. drop the knife. A.M. said, “Let go,” began swinging

the knife, and got away. During this time, J.D. heard N.L. say, “Let her kill me,” “Let

her stab me. I want to die any ways [sic],” and N.L. did not appear to be afraid. J.D.,

who was scared that A.M. was going to try to hurt her too, backed up and told S.B.
                                           4
and N.L. to run. S.B. also told N.L. to run. Although N.L. ran, she tripped over the

curb. S.B. saw N.L. fall and saw A.M. stab N.L. in the neck. J.D. saw A.M. walk up

to N.L., heard N.L scream, “[My] neck,” and then saw blood.2 J.D. admitted that she

had seen A.M. walk up to N.L. but had not seen the stabbing and explained that she

had guessed that A.M. had stabbed N.L. According to S.B., when A.M. went to stab

N.L., A.M. did not trip, was not playing around, joking, or trying to scare N.L. S.B.

testified, “It was intentional.” J.D. stated that A.M. was the only person with a knife

and declared that A.M.’s act of stabbing was no accident, “[b]ecause the way she

walked up on [N.L.], that’s not no accident.”

      S.B. ran over to N.L., took her hand, and stood her up, but A.M. returned to

her apartment. J.D. and some boys who were walking from the grocery store tried to

help N.L., and one of the boys ran to alert police. J.D. did not know where A.M. was

at the time. S.B. ran to A.M.’s house and told A.M.’s mother to get a towel because

N.L. had been stabbed. A.M.’s mother came outside with a towel, placed it around

N.L.’s neck, and attempted cardiopulmonary resuscitation.

      S.B. and J.D. ran to N.L.’s apartment to get her older brother, K.J. S.B.

observed that A.M. followed them for a while but then noticed that A.M. ran to

another location. While A.M. was following them, J.D. heard A.M. tell them “not to

tell nobody.” J.D. did not know where A.M. went.


      2
       J.D. testified that N.L. was standing at the time.

                                           5
      When S.B. and J.D. returned, emergency personnel were placing N.L. in an

ambulance. S.B. later learned that N.L. had died. N.L. was fourteen years old at the

time of her death.

      A.M. was not present when detectives first arrived at her apartment, but her

mother and stepfather were. A.M.’s stepfather eventually brought A.M. to the police

station where she was interviewed. After the interview, A.M. took police to the

location where she had deposited the knife. Police located the twelve-inch knife,

which had a seven and one-half inch blade, with a blanket on the patio of a vacant

apartment 235 feet away from the area where the incident occurred.             Testing

confirmed the presence of N.L.’s DNA on the knife handle and blade. Based on his

training and experience, Detective Matthew Barron opined that a knife like the one

that was recovered could be a deadly weapon in the manner of its use or intended use

and that the knife was a deadly weapon in this case.

      Deputy medical examiner Marc Krouse performed N.L.’s autopsy. N.L. had

several small injuries and a couple of hidden bruises under her scalp.         Krouse

concluded that the downward three-and-one-half or four-inch stab wound to the neck

and chest had caused N.L.’s death and that the manner of her death was homicide.

The autopsy revealed that the knife had cut through N.L.’s jugular vein and had

penetrated her lung. Krouse opined that a stab wound to the neck like the one N.L.

suffered was clearly dangerous to human life and that the injury to N.L.’s jugular vein

was not survivable.
                                           6
B.    Respondent’s Testimony

      A.M. testified at trial and admitted that she had returned to her apartment after

fighting N.L., had retrieved a knife, and had run back outside. A.M. explained that

she did this to scare N.L. and claimed, “My intent was to never harm her.” According

to A.M., N.L. turned around; said, “You real bold”; and then walked up to A.M. and

said, “Stick me, stick me. I ain’t scared to die. I want to die any ways.” A.M. claimed

that she told N.L. to go home, and N.L. approached and swung at her. A.M. said she

“reacted” by stabbing N.L. A.M. testified, “I made the most horrible mistake of my

life and I wish I was thinking at the time but emotions were so high and we both

[had] not fully calmed down yet.” After A.M. withdrew the knife, she tried to stop

N.L., who was panicking, from running. N.L. collapsed.

      A.M. claimed that she went into her house and came back with towels to put

on N.L.’s neck but did not tell her mother about the stabbing because she was only

thinking of helping N.L. A.M. also claimed that after her mother ran outside to help

N.L., she instructed A.M. to run. A.M. ran back to the apartment, grabbed N.L.’s

blanket, wrapped the knife in it, and ran to another area of the apartment complex.

A.M. placed the knife and the blanket “over [a] balcony.” At about 4 a.m., A.M.’s

mother informed her by message that N.L. was dead. Eventually, A.M. provided her

location to her father, and he transported her to the police station.

      A.M. admitted that she was not truthful when she first spoke with the

detectives and had falsely told them that N.L. had a knife too. A.M. testified that she
                                            7
had harmed N.L. “unintentionally” and had walked outside with the knife with the

intention of scaring N.L. so that she would run home. A.M. and N.L.’s phones were

examined, and the messages on them indicated that they had intended to fight each

other. However, in one of her messages, A.M. wrote to N.L., “[B]itch I’ll kill you on

my . . . life.” A.M. testified that she “didn’t mean” what she had written. In her

response, N.L. had written, “OMG is this a threat, am I supposed [to] be scared?”

      A.M. agreed that she could have stayed inside after the fight or could have

dropped the knife when J.D. grabbed her wrist but declared that she had never stated

after the fight that she was “going to kill this bitch.” The following colloquy then

occurred:

      [The State]: I mean, you were already super mad when you came outside
      that night, right?

      [A.M.]: Yes.

      [The State]: You were already super mad when you pulled away from
      [J.D.] even though she was asking you not to do it?

      [A.M.]: Yes.

      [The State]: And then [N.L.] is not running away, she’s not showing fear
      of you, she’s being defiant to you, right?

      [A.M.]: Yes.

      [The State]: So if that’s the situation, if you’re just trying to scare her,
      why would you stab her in the neck of all places?

      [A.M.]: She ran up on me.


                                           8
[The State]: Okay. My question is though why would you stab her in
the neck of all places on her body?

[A.M.]: I mean, I don’t know. She ran up on me. She swung at me.

[The State]: Did you not think there was a danger to stabbing her in any
way?

[A.M.]: No --

[The State]: Is there ever a good stab, I guess, I should ask you?

[A.M.]: No.

[The State]: Okay. So when you -- do you think it’s going to be more
than just scaring somebody to plunge a knife into the inside of their
body?

[A.M.]: Yeah[,] but I thought she would at least run or go home.

[The State]: Well, but she wasn’t and that made you mad, didn’t it?

[A.M.]: No.

[The State]: Mad enough to do something that you could never imagine
doing?

[A.M.]: It was unintentionally.

[The State]: Well, did you trip?

[A.M.]: No.

[The State]: Did you fall into her with that knife?

[A.M.]: No.

[The State]: Now, you did intentionally stab . . . her with it, right?

[A.M.]: No.

                                      9
      [The State]: I guess my question is you weren’t just trying to wave the
      knife in front of her, right, you were actually trying to hit her with it?

      [A.M.]: It was just a reaction.

      [The State]: But if it was just a reaction, why did you run?

      [A.M.]: What you mean?

      [The State]: Why did you run away and not talk to the police officers
      there?

      [A.M.]: I was scared.

      [The State]: Okay. Why did you go hide the knife if it was just a
      reaction?

      [A.M.]: I mean, where the knife was, that’s where I was.

      [The State]: You knew you had done something wrong; is that -- is that
      fair to say or do you disagree with me on that?

      [A.M.]: Yeah.

      [The State]: You did something that was illegal. Did you understand
      that when you did it?

      [A.M.]: Yes.

      [The State]: You knew the cops were going to be coming, didn’t you?

      [A.M.]: Yes.

      A.M. claimed that she did not recall wiping the knife with the blanket. Barron

was recalled during the State’s rebuttal and testified that A.M.’s “I will kill you”

message had been found on N.L.’s phone but had been deleted from the messages on



                                          10
A.M.’s phone. He also testified that during her police interview, A.M. had described

wiping the blood off of the knife with a blanket.

                                   III. DISCUSSION

A.    Requested Instruction on Manslaughter

      The second paragraph of the petition alleged that A.M. had engaged in

delinquent conduct on or about May 29, 2018, in Tarrant County when she

intentionally, with the intent to cause serious bodily injury to N.L., committed an act

clearly dangerous to human life, namely, stabbing N.L. with a knife, and thereby

caused N.L.’s death, thus violating Penal Code Section 19.02. Tex. Penal Code Ann.

§ 19.02(b)(2) (Murder) (establishing that a person commits the offense of murder if

she intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual).

      A person commits manslaughter if he recklessly causes the death of an

individual. Id. § 19.04(a) (Manslaughter). “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.” Id. § 6.03(c). The risk must be of

such a nature and degree that its disregard 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. Id.


                                           11
      During the charge conference, A.M. requested that the juvenile court’s charge

instruct the jury on manslaughter. See Saunders v. State, 840 S.W.2d 390, 391 (Tex.

Crim. App. 1992) (explaining that regardless of the strength or weakness of the

evidence, if any evidence raises the issue that the defendant was guilty only of the

lesser offense, a charge on the lesser offense must be given). The juvenile court

recalled that no evidence was presented establishing that A.M. “was aware of the risk

and consciously disregarded the risk” as would satisfy the reckless element of

manslaughter and denied the requested manslaughter instruction. In her sole issue,

A.M. contends that the juvenile court harmfully erred when it denied her requested

instruction on manslaughter. We disagree.

B.    Standard of Review

      Juvenile delinquency proceedings are “quasi-criminal” in nature. In re L.D.C.,

400 S.W.3d 572, 574 (Tex. 2013). Except as otherwise provided by the juvenile justice

code, juvenile proceedings are governed by the rules of evidence applicable to

criminal cases and by articles 33.03 and 37.07 and Chapter 38 of the Code of Criminal

Procedure. See Tex. Fam. Code Ann. § 51.17(c). Standards of review applicable to

criminal cases also may apply to a juvenile adjudication. In re A.J.G., 131 S.W.3d 687,

691 (Tex. App.—Corpus Christi–Edinburg 2004, pet. denied). Article 36.14 requires

that the trial court charge the jury on the “law applicable to the case.” Tex. Code

Crim. Proc. Ann. art. 36.14; In re J.R.C.S., 393 S.W.3d 903, 913 (Tex. App.—El Paso

2012, no pet.).
                                          12
      In determining whether a defendant was entitled to have an instruction on a

lesser offense included in the trial court’s charge to the jury, we employ the two-step

Aguilar/Rousseau test. See Tex. Code Crim. Proc. Ann. arts. 37.08 (Conviction of lesser

included offense), 37.09 (Lesser included offense); Ritcherson v. State, 568 S.W.3d 667,

670–71 (Tex. Crim. App. 2018) (citing Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.

Crim. App. 1993)); see Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012).

First, we compare the statutory elements of the alleged lesser offense and the

statutory elements and any descriptive averments in the indictment.            Ritcherson,

568 S.W.3d at 670–71; Cavazos, 382 S.W.3d at 382 (explaining that the first step of the

test is a question of law that may be performed pre-trial or on appeal). Second, there

must be evidence from which a rational jury could find the defendant guilty of only

the lesser offense. Ritcherson, 568 S.W.3d at 671. This evidentiary requirement is met

if there is (1) evidence that directly refutes or negates other evidence establishing the

greater offense and raises the lesser-included offense or (2) evidence that is

susceptible to different interpretations, one of which refutes or negates an element of

the greater offense and raises the lesser offense.        Id. (citing Saunders v. State,

840 S.W.2d 390, 391–92 (Tex. Crim. App. 1992)). The evidence raising the lesser

offense must be affirmatively in the record. Ritcherson, 568 S.W.3d at 671. In other

words, a defendant is not entitled to a lesser-included offense instruction based on the

absence of evidence, and the evidence must be “directly germane to the lesser-

included offense[.]” Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). In
                                           13
performing this analysis, we consider not just the evidence presented by the

defendant, but all the evidence admitted at trial, and if there is more than a scintilla of

evidence raising the lesser offense and negating or rebutting an element of the greater

offense, the defendant is entitled to a lesser-offense instruction. Ritcherson, 568 S.W.3d

at 671 (citing Roy v. State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017)). The evidence

need not be controverted or even credible. Banda v. State, 890 S.W.2d 42, 60 (Tex.

Crim. App. 1994).

C.    Analysis

      The court of criminal appeals has concluded that manslaughter is a lesser-

included offense of murder. See Cavazos, 382 S.W.3d at 384. We therefore proceed to

the second step of the test and determine whether the requested instruction on

manslaughter was warranted based on the evidence. Ritcherson, 568 S.W.3d at 671.

      1.     A.M.’s contentions

      Relying on evidence of the knife length and the deputy medical examiner’s

testimony that a sharp object that penetrates the skin without striking bone “tends to

go right through everything else,” along with the inferences that may be drawn from

that evidence, A.M. asserts that her acts and conduct provide more than a scintilla of

evidence to show that her actions were reckless rather than intentional. A.M. also

asserts that her testimony that she “reacted” in response to N.L.’s approaching and

swinging at her allowed the jury to infer that A.M. was aware of the risk the knife

posed and disregarded the risk by defending herself while holding the knife. A.M.
                                            14
asserts that this evidence also shows that she acted recklessly rather than intentionally.

According to A.M., this inference is further supported by her testimony that she

“unintentionally” stabbed N.L. and did not intend to harm N.L. She asserts that the

evidence negates and refutes the “intentional” culpable mental state required for the

offense of murder and that if believed, this evidence permitted the jury to determine

that she engaged in delinquent conduct only by committing manslaughter. A.M.

argues that this inference is further buttressed by additional inferences that the jury

may have drawn from the evidence of the knife length and soft tissue injuries and

establishes that she did not intend to cause N.L. serious bodily injury “because [if she

had so intended,] the knife would have continued to penetrate further into N.L.’s

chest cavity.” She concludes that the manslaughter instruction should have been

given because the evidence negates or refutes an intent to cause serious bodily injury

and supports a finding that she was aware of the risk of N.L.’s death but consciously

disregarded the risk by attempting to defend herself with a knife.

      2.     The evidence does not warrant a manslaughter instruction

      In determining whether evidence exists to support a charge on recklessness,

we cannot pluck from the record and examine in a vacuum the defendant’s statement

that she did not intend to kill. See Martinez v. State, 16 S.W.3d 845, 847 (Tex. App.—

Houston [1st Dist.] 2000, pet ref’d). Having reviewed all of the evidence, including all

of A.M.’s testimony, we conclude that the juvenile court did not err when it denied

A.M.’s requested manslaughter instruction because there is no affirmative evidence
                                           15
from which a rational juror could infer that A.M. was aware of but consciously

disregarded a substantial and unjustifiable risk that death would occur as a result of

A.M.’s conduct. See Tex. Penal Code Ann. §§ 6.03(c), 19.04(a); Ritcherson, 568 S.W.3d

at 671. We also disagree with A.M.’s assertion that because N.L. did not suffer other

injuries beyond the injuries to her jugular vein and lung, a rational juror could infer

that she did not intend to cause N.L. serious bodily injury. Although there is some

evidence that A.M. did not intend to kill N.L., there must also be some affirmative

evidence in the record that would permit a rational juror to infer that A.M. was aware

of but consciously disregarded a substantial and unjustifiable risk that death would

occur as a result of her conduct and that evidence must be sufficient to establish

manslaughter as a valid, rational alternative to murder. See Ritcherson, 568 S.W.3d at

671; Cavazos, 382 S.W.3d at 385.

      In this case, there is no evidence that A.M. was aware of a substantial and

unjustifiable risk that N.L.’s death would occur as a result of her conduct and that she

had consciously disregarded that risk. At trial, the State’s prosecutor explicitly asked

A.M. whether she thought there was a danger to stabbing N.L., and she answered,

“No.” When A.M. was asked whether she had thought “[it was] going to be more

than just scaring somebody to plunge a knife” into that person’s body, A.M.

answered, “Yeah,” but she explained that she had thought N.L. would run or go

home. This is not evidence that A.M. was aware of a substantial and unjustifiable risk

that N.L. would die as a result of her conduct—A.M. specifically stated that she
                                          16
thought her conduct would result in N.L. running or going home. See Nevarez v. State,

270 S.W.3d 691, 694 (Tex. App.—Amarillo 2008, no pet.) (holding that trial court did

not err in refusing to instruct jury on lesser offense of manslaughter; defendant’s

testimony that he panicked, was scared, swung a knife while trying to protect himself,

and accidentally stabbed the victim in the neck was not evidence that the defendant

had been reckless). The evidence in this case shows that A.M. did not act recklessly.

       Moreover, to be entitled to the manslaughter instruction, the evidence must be

“directly germane” to the offense of manslaughter and must rise to a level to permit a

jury to find that if A.M. is guilty, she is guilty only of manslaughter. Id. at 693.

Evidence that A.M. first physically fought with N.L., left to obtain a knife, returned to

scare N.L., and then stabbed N.L., and A.M.’s later declaration that she did not intend

to harm N.L. but intended only to scare N.L. and thought N.L. would run or go

home, is not evidence directly germane to recklessness, and in the absence of

additional evidence, the evidence in this case does not rise to a level that would permit

a juror to find that, if guilty, A.M. is guilty only of the lesser offense of manslaughter.

       The State relies on Ritcherson for the proposition that we should reject A.M.’s

“reaction” testimony because it fails to satisfy the second prong of our analysis. See

568 S.W.3d at 677. In Ritcherson, the court of criminal appeals considered testimony

that the defendant had stabbed the victim “as a reflexive reaction to being struck on

the head by a shoe.” Id. at 677. The court concluded that even if the “reflexive”

testimony meant that the defendant had been unable to physically control her act of
                                             17
stabbing the victim in response to being attacked, the jury could not have reasonably

inferred that the defendant had stabbed the victim “only recklessly” because a jury

cannot infer intent from a reflexive action—a person can only commit a criminal

offense if she voluntarily engages in the conduct, and a reflexive reaction does not

constitute a voluntary act. See Tex. Penal Code Ann. § 6.01(a); Ritcherson, 568 S.W.3d

at 677. In this case, there is no evidence that A.M.’s “reaction” was “reflexive” such

that she was unable to physically control her stabbing action in response to an attack.

We have determined that the evidence, including evidence that A.M. “reacted,” does

not permit a rational juror to find that if A.M. is guilty, she is guilty only of

manslaughter.    Thus, the juvenile court did not err by denying the requested

instruction on the lesser offense of manslaughter, and we overrule A.M.’s sole issue.

                                  IV. CONCLUSION

      Having overruled A.M.’s sole issue on appeal, we affirm the juvenile court’s

adjudication and disposition orders.


                                                     /s/ Dana Womack

                                                     Dana Womack
                                                     Justice

Delivered: August 29, 2019




                                          18
