                                                                                 PD-0183-15
                           PD-0183-15                           COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                              Transmitted 2/16/2015 8:34:47 PM
                                                                Accepted 2/18/2015 9:20:34 AM
                                                                                  ABEL ACOSTA
                               PDR No. _______                                            CLERK

                    ________________________________

                     In the Court of Criminal Appeals Texas

                    ________________________________

                TREYVON RAYMOND WILLIAMS, Appellant

                                      V.

                           THE STATE OF TEXAS

                     _______________________________

                On Appellant’s Petition for Discretionary Review
                       From the First Court of Appeals,
                        Appeal No. 01-13-00660-CR,
                    On Appeal from the 400th District Court
                         Of Fort Bend County, Texas
                         Cause No. 12-DCR-060402
                    _______________________________
               PETITION FOR DISCRETIONARY REVIEW
           FOR APPELLANT, TREYVON RAYMOND WILLIAMS

                    ______________________________________


Oral Argument Requested

Michael C. Diaz
20228 Hwy. 6
Manvel, Texas 77578
Telephone: 281-489-2400
Facsimile: 281-489-2401                             February 18, 2015
Texas Bar No. 00793616

Attorney for Appellant



                                       i
              IDENTITY OF JUDGE, PARTIES AND COUNSEL


 Pursuant to Tex. R. App. P. Rule 68.4 (a), appellant certifies that the following is a

complete list of the trial court judge, all the parties to the judgment or order

appealed from, and the names and addresses of counsel in the trial and on appeal:


Trial Court Judge:
The Honorable Clifford Vacek
Presiding Judge 400th District Court
Fort Bend County, Texas

Appellant:
Treyvon Raymond Williams

Counsel for Appellant:
Dallas C. Hughes
7322 Southwest Fwy Ste 1100
Houston, TX 77074

Michael C. Diaz (appeal)
20228 Hwy. 6
Manvel, Texas 77578

Counsel for the State of Texas:
John F. Healey Jr.-District Attorney
John Hawkins-Trial
Thomas Pfeiffer-Trial
John Harrity-Appeal
Fort Bend County, Texas District Attorney’s Office
1422 Eugene Heimann Cir
Richmond, Texas 77469




                                         ii
                               Table of Contents


Identity of judge, parties and counsel………………………………………………ii


Index of Authorities………………………………………………………………...v


Statement Regarding Oral Argument……………………………………………vi


Statement of the Case………………………………………………………...…vii


Procedural History of the Case…………………………………...………………viii


Grounds for Discretionary Review One……………………………………………2


                                GROUND ONE


DID THE FIRST COURT OF APPEALS ERR IN AFFIRMING APPELLANT’S
  CONVICTION IN DETERMINING THAT A RATIONAL FACTFINDER
  COULD HAVE FOUND BEYOND A REASONABLE DOUBT AGAINST
 APPELLANT ON THE ISSUES OF SELF-DEFENSE AND DEFENSE OF A
                       THIRD PERSON?

Reasons to Grant Review in Support of Ground for Review………………………2

Review is appropriate, under Tex. R. App. P. 66.3(f), because the Court Of
Appeals has court of appeals has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned such a departure by a lower
court, as to call for an exercise of the Court of Criminal Appeals' power of
supervision.

Argument and Authorities In Support Of Ground One………..……………..…2

                               GROUND TWO

                                       iii
DID THE COURT OF APPEALS ERR IN AFFRIMING THE TRIAL COURT IN
DENYING APPELLANT’S PROPOSED LESSER INCLUDED JURY
INSTRUCTIONS, SPECIFICALLY FELONY DEADLY CONDUCT?

Reasons to Grant Review in Support of Ground for Review………………………8


Review is appropriate, under Tex. R. App. P. 66.3(c), because the Court Of
Appeals has decided an important question of state or federal law in a way that
conflicts with the applicable decisions of the Court of Criminal Appeals or the
Supreme Court of the United States;

Review is appropriate, under Tex. R. App. P. 66.3(d), because the Court Of Appeal
has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to
have misconstrued a statute, rule, regulation, or ordinance; namely, TEX.CODE
CRIM. PROC. art. 37.09.

Argument         and       Authorities         In     Support       Of        Ground

Two………….……………..…...8


Prayer for Relief………………………………………………….…………….11-

12


Certificate of Compliance.………………………………………………………...13


Certificate of Service…...…………………………………………………………13


Appendix ..………………………………………………………………………..14




                                          iv
                      INDEX OF AUTHORITIES

CASES:

Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012)……………..…9-
10

Saxton v. State, 804      S.W.2d     910,       913–14    (Tex.   Crim.   App.
1991)………………….3

Skinner v. State, 956       S.W.2d       532,     543    (Tex.    Crim.   App.
1997)…………………....10

Sweed  v. State, 351 S.W.3d              63,      68     (Tex.    Crim.   App.
2011)………………………..10

STATUTES, CODES AND RULES:

Tex. R. App. P. 9.4(i)…………..………………………………………………... 13

Tex. R. App. P. 9.5…………………………………...…………………………...13

Tex. R. App. P. 66.3(c)…………………………...……………………………...iv,
8

Tex. R. App. P. 66.3(d)…………………………...…………………………...…iv,
8

Tex. R. App. P. 66.3(f)…………………………...……………………………...iii,
2

Tex. R. App. P. 68.4(a)……………………………………………………………..ii

Tex. R. App. P. 68.4(c)…………………………………………………….............vi

Tex. Penal Code §1.07……………………………………………………………...3

Tex. Penal Code §22.05………………………………………………………….8-9

                                     v
TEX.CODE CRIM. PROC. art. 37.09…………………………….…………….iv, 9




               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Tex. R. App. 68.4(c), counsel respectfully requests oral

argument. Oral argument would be helpful because this case presents an issue that

needs to be resolved by this Court. This appeal involves questions of law,

questions of fact, public policy and procedure which cannot be adequately

addressed, analyzed and evaluated through written communication alone. Oral

argument is essential to emphasize the unique characteristics of these questions and

to address the unforeseeable exigencies arising during the Court’s consideration of

this appeal.




                                         vi
                           STATEMENT OF THE CASE


      On May 21, 2012, Treyvon Raymond Williams, appellant, was indicted for

murder.    (CR 1 at 16).     On June 4, 2013, appellant pled not guilty to the

indictment. (CR 21 at 12). After a jury trial, the jury found appellant guilty of the

charged offense and appellant was assessed a 70 year sentence in the Texas

Department of Criminal Justice-Institutional Division. (CR 1 at 102).


      The evidence, when viewed in the light most favorable to the verdict, does

not appear to support a finding that any rational trier of fact, could have found

Appellant guilty. The evidence from the Appellant’s standpoint supports not only

self-defense, but deadly force against another, as well as deadly force to protect a

third party.


      The argument for a lesser-included instruction for deadly conduct derives

from Appellant’s own statement.

                                         vii
      On July 24, 2013, Appellant timely filed his notice of appeal. (CR 1 at 97).


      This petition challenges these holdings.




                   PROCEDURAL HISTORY OF THE CASE


      On December 16, 2014, the First Court of Appeals affirmed Appellant’s

conviction. Williams v. State, No. 01-13-00660-CR, slip op. at 1-13, (Tex. App.-

Houston [1st Dist.], December 16, 2014, pet. pending). On December 30, 2014,

Appellant timely filed his motion for rehearing.     The First Court of Appeals

overruled and denied Appellant’s motion for rehearing on January 15, 2015. On

February 16, 2015, Appellant timely filed this petition for discretionary review

with the Texas Court of Criminal Appeals. TEX. R. APP. P. 4.1 and 68.2.




                                        viii
                                 PDR No. _______

                      ________________________________

                      In the Court of Criminal Appeals Texas

                      ________________________________

                 TREYVON RAYMOND WILLIAMS, Appellant

                                         V.

                             THE STATE OF TEXAS

                      _______________________________

                 On Appellant’s Petition for Discretionary Review
                        From the First Court of Appeals,
                         Appeal No. 01-13-00660-CR,
                     On Appeal from the 400th District Court
                          Of Fort Bend County, Texas
                          Cause No. 12-DCR-060402

                      _______________________________
                PETITION FOR DISCRETIONARY REVIEW
            FOR APPELLANT, TREYVON RAYMOND WILLIAMS

                     ______________________________________




To The Honorable Justices of the Court of Criminal Appeals:

      Comes now Appellant, Treyvon Raymond Williams by, and through his

attorney of record, Michael C. Diaz, and files this petition for discretionary review

of the of the December 16, 2014, decision of the First Court of Appeals of Texas in

Williams v. State, No. 01-13-00660-CR, slip op. at 1-13, (Tex. App.-Houston [1st
                                         1
Dist.], December 16, 2014, pet. pending), and would respectfully show the Court

the following:


                                 GROUND ONE


DID THE FIRST COURT OF APPEALS ERR IN AFFIRMING APPELLANT’S
  CONVICTION IN DETERMINING THAT A RATIONAL FACTFINDER
  COULD HAVE FOUND BEYOND A REASONABLE DOUBT AGAINST
 APPELLANT ON THE ISSUES OF SELF-DEFENSE AND DEFENSE OF A
                       THIRD PERSON?



            Reasons to Grant Review in Support of Ground for Review

Review is appropriate, under Tex. R. App. P. 66.3(f), because the Court
Of Appeals has whether a court of appeals has so far departed from the accepted
and usual course of judicial proceedings, or so far sanctioned such a departure by a
lower court, as to call for an exercise of the Court of Criminal Appeals' power of
supervision.



ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR REVIEW
                          ONE

      In its December 16, 2014, opinion, the First Court of Appeals affirmed

Appellant’s conviction in determining that a rational factfinder could have found

beyond a reasonable doubt against appellant on the issues of self-defense and

defense of a third person.


      This Court should review this ground and review is appropriate under Tex.

R. App. P. 66.3(f), because the Court of Appeals has so far departed from the

                                         2
accepted and usual course of judicial proceedings, or so far sanctioned such a

departure by a lower court, as to call for an exercise of the Court of Criminal

Appeals' power of supervision.


      In its opinion, the First Court of Appeals responded to Appellant’s first point

of error by stating that “the issue of self-defense is a fact issue to be determined by

the jury, which is free to accept or reject the defensive issue. Saxton v. State, 804

S.W.2d 910, 913–14 (Tex. Crim. App. 1991). When a jury finds the defendant

guilty, there is an implicit finding against self-defense. Id. at 914. Although there

is some evidence that appellant reasonably believed that deadly force was

immediately necessary to protect himself or Andromida, other evidence

demonstrates that a rational jury could have been persuaded to the contrary beyond

a reasonable doubt. Notably, no weapon was found on Rico’s person after he was

shot, and Andromida testified that the black object taken from his body “could

have been a shoe for all I know.” Nor did any witness corroborate appellant’s

statement that an unknown person at the scene was carrying an assault rifle.

Furthermore, as the exclusive judge of the facts, the jury was entitled to accept or

reject defensive evidence. Id.”




                                          3
      Appellant would respectfully remind this Court that “reasonable belief”

means a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor. Tex. Penal Code §1.07.


      The Appellant’s voluntary statement would seem to indicate that he held a

reasonable belief, in that he was told on the day of the shooting that Desiray and

Darian were going to jump them and shoot them. Appellant went over to Angela’s

for a baby shower and heard Desiray at the door asking for him. Desiray asked

appellant where her stuff was and appellant asked Desiray where his stuff was.

Appellant stated that Desiray and Darian had taken his clothes and shoes.

Appellant sees Darian jump out of the car saying, “Are you ready to fight? Are you

ready to fight?” It was at this time he sees Rico drive up with Shamarkcus and two

bright skinned males he does not know. The tall, bright boy was trying to fight

appellant first. Appellant took off his shirt to fight Rico. Desiray ran back to

Angela’s house to fight Andromida. The tall, bright skinned boy looked like he

had an AK-47 because the barrel was skinny at the end. Appellant had a gun he

had bought the day before for protection and he had it in his waistband. Appellant

was scared for his life because he thought the bright skinned male had an AK-47

and that Rico had a gun.      Appellant saw Rico running toward Desiray and

Andromida with his hand down like he was holding a gun. Appellant started

shooting and Rico got in the way as he was running. Appellant knows Rico to

                                        4
hang out with the 103’s, a gang, who are known to carry guns. Appellant has seen

Rico with a gun before when they were playing dice. The tall, bright male was

wearing a white mesh shirt with the sleeves cut off and black shorts. Appellant

was also arguing with Darian who called them to come on back. Appellant saw 3

cars in front of Angela’s house, Desiray’s car, Rico’s car and a Charger. (RR 3 at

160, State’s exhibit 58).


      In addition, the corroboration as to the Appellant’s reasonable belief came

from several witnesses who testified. The police were called out to a disturbance

at Tameka’s house. (RR 5 at 118). Tameka had asked Desiray to ask Darian to

leave so the tension could die down. (RR 5 at 117). Tameka stated that there was

a lot of tension in her house. (RR 5 at 116). Tameka stated that Desiray became

mad and knocked a table over in the garage and cussed her out. (RR 5 at 117).

Tameka realized that Desiray and Darian took clothes from Tevin’s room after

seeing them enter in Tevin’s room with a garbage bag. (RR 5 at 121). Tameka

also stated that Desiray made threats towards Tevin and the appellant. (RR 5 at

118). In addition, Tameka stated that Desiray was going to get Tevin jumped and

get Rico to fight Tevin. (RR 5 at 114). Tameka knew that something was going to

happen and it was going to escalate a little further. (RR 5 at 118).




                                          5
      Andromida testified that Angela, Aiereona, appellant and her went outside

the front door and Desiray was hollering that she needed to speak with appellant.

She further testified that the appellant became mad and said, “I don’t have time for

this. We ain’t trying to cause no problems.” In addition, Andromida observed 6

car loads of people, 20-25 people, mostly all black males, standing in her yard, in

the driveway, and in front of her house in the street. The males were saying that

they came to jump him. Andromida was not going to let it happen unless it was

one on one. Furthermore, it should be noted that Andromida testified Rico and

Darian were coming to help Desiray because Andromida had her on the ground,

winning the fight and Desiray kept hollering for them. Only when Darian got close

to the fight, Andromida heard the gun shots. Andromida saw Rico on the ground

and an unknown person take something black from Rico’s person and go to the

second car behind Desiray and then he came back to where Rico was. (RR 5 at

159-197). Although Andromida could never say what the black item was, it could

be assumed that it was a gun as appellant indicated to the police during his

interview. (RR 3 at 160, State’s exhibit 58).


      Angela testified that a bunch of people were coming towards her house as if

they were coming to fight appellant. She also testified that Darian ran towards

Andromida and it was two on Andromida.            Angela saw Rico run towards



                                         6
Andromida before he got shot. (RR 5 at 198-222). This corroborates what the

appellant said during his interview. (RR 3 at 160, State’s exhibit 58).


       Even the State’s witness, Shamarkcus, testified that when Rico, Chris, Willie

and he arrived at Beechaven, Desiray and Darian were already there in Darian’s

car. (RR 4 at 144). Other people started to show up at Beechaven, including a

green Lexus, with black males. (RR 4 at 144). Shamarkcus testified the appellant

pointed the gun in the direction of the crowd, where Rico, Darian and Desiray were

standing and shot 3 or 4 times, however, at the time of the shooting, Rico was

running over to stop the fight between Andromida and Desiray. (RR 4 at 155,

203). In addition, Shamarkcus testified that Willie Howse was also going toward

and behind Rico. (RR 4 at 202). Again, this testimony corroborates what the

appellant said during his interview with the police. (RR 3 at 160, State’s exhibit

58).


       The First Court of Appeals in its opinion, acknowledges that “there is some

evidence that appellant reasonably believed that deadly force was immediately

necessary to protect himself or Andromida.” Furthermore, just because a gun was

never found on Rico’s person, or a gun was never observed at the crime scene, this

alone should not negate Appellant’s reasonable belief.        It is undisputed that

Andromida saw Rico on the ground and an unknown person take something black


                                          7
from Rico’s person and go to the second car behind Desiray and then he came back

to where Rico was.


      This evidence, when viewed in the light most favorable to the verdict, does

not appear to support a finding that any rational trier of fact, could have found

Appellant guilty. The evidence from the Appellant’s standpoint supports not only

self-defense, but deadly force against another, as well as deadly force to protect a

third party.


                                    GROUND TWO


       DID THE COURT OF APPEALS ERR IN AFFRIMING THE TRIAL
   COURT IN DENYING APPELLANT’S PROPOSED LESSER INCLUDED
  JURY INSTRUCTIONS, SPECIFICALLY FELONY DEADLY CONDUCT?

               Reasons to Grant Review in Support of Ground for Review

       Review is appropriate, under Tex. R. App. P. 66.3(c), because the Court Of
Appeals has decided an important question of state or federal law in a way that
conflicts with the applicable decisions of the Court of Criminal Appeals or the
Supreme Court of the United States;

      Review is appropriate, under Tex. R. App. P. 66.3(d), because the Court Of
Appeal has declared a statute, rule, regulation, or ordinance unconstitutional, or
appears to have misconstrued a statute, rule, regulation, or ordinance; namely,
TEX.CODE CRIM. PROC. art. 37.09.

         ARGUMENT AND AUTHORITIES IN SUPPORT OF GROUND FOR
                        REVIEW TWO

      The Court of Appeals incorrectly affirmed the trial court decision in not

giving Appellant a jury instruction on deadly conduct.
                                         8
      A person commits the offense of deadly conduct if he knowingly discharges

a firearm at or in the direction of:


      (1) one or more individuals;

      (2) or a habitation, building or vehicle and is reckless as to whether the

          habitation, building or vehicle is occupied. Tex. Penal Code §22.05


      We employ a two-pronged test to determine whether a defendant is entitled

to an instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d

377, 382 (Tex. Crim. App. 2012). The first step is a question of law, in which we

compare the elements alleged in the indictment with the elements of the lesser

offense to determine “if the proof necessary to establish the charged offense also

includes the lesser offense.” Id.


      The Code of Criminal Procedure states that an offense is a lesser-included

offense if:


      (1) it is established by proof of the same or less than all the facts required to

          establish the commission of the offense charged;

      (2) it differs from the offense charged only in the respect that a less serious

          injury or risk of injury to the same person, property, or public interest

          suffices to establish its commission;


                                          9
      (3) it differs from the offense charged only in the respect that a less culpable

         mental state suffices to establish its commission; or

      (4) it consists of an attempt to commit the offense charged or an otherwise

         included offense. TEX.CODE CRIM. PROC. art. 37.09.


      The Court of Appeals was well aware that a lesser-included instruction on

felony deadly conduct was requested by Appellant at trial. Furthermore, the Court

acknowledged in its opinion that deadly conduct is a lesser-included of murder. In

addition, the Court also acknowledged that the first prong was satisfied in

determining if deadly conduct was a lesser-included offense. Moreover, the Court

acknowledged in its opinion that, “the second step is a question of fact and is based

on the evidence presented at trial. Cavazos at 383. Thus, a defendant is entitled to

an instruction on a lesser-included offense “if some evidence from any source

raises a fact issue on whether he is guilty of only the lesser, regardless of whether

the evidence is weak, impeached, or contradicted.” Id. “Although this threshold

showing is low, ‘it is not enough that the jury may disbelieve crucial evidence

pertaining to the greater offense, but rather, there must be some evidence directly

germane to the lesser-included offense for the finder of fact to consider before an

instruction on a lesser-included offense is warranted.” Sweed v. State, 351 S.W.3d

63, 68 (Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543

(Tex. Crim. App. 1997)). The standard may be satisfied “if some evidence refutes

                                         10
or negates other evidence establishing the greater offense or if the evidence

presented is subject to different interpretations.” Id.


      Regardless of the source or whether the evidence was weak, impeached or

contradicted, the Appellant stated during the interview that he became scared and

just started shooting and that Rico got in the way as he was running towards

Desiray. (RR 3 at 160, State’s exhibit 58). The argument for a lesser-included

instruction for felony deadly conduct derives from Appellant’s own statement in

that he knowingly just started shooting. This supports that Appellant knowingly

discharged the firearm at or in the direction of one or more individuals.


      It is clear from the argument, authorities, and statements from the record that

the Court of Appeals committed error in its judgment. The Court drew an incorrect

conclusion from the facts of this case and failed to make a holding necessary to the

proper disposition of the appeal and its holding was based upon a false premise.


                               PRAYER FOR RELIEF


      WHEREFORE, PREMISES CONSIDERED, Appellant, Treyvon Raymond

Williams, prays that this Court grant the Petition for Discretionary Review for

Appellant, order briefing on this cause, and set it for submission at the earliest

possible date. Moreover, upon submission and review of the appellate record and


                                           11
the briefs and arguments of counsel, the Court find reversible error in the

judgments of the First Court of Appeals in appeal number 01-13-00660-CR and of

the 400th District Court of Fort Bend County, Texas, cause number 12-DCR-

060402. In accordance with this Court’s finding of reversible error, appellant also

requests that the Court then issue its opinion and judgment reversing the judgments

of the First Court of Appeals and the 400th District Court of Fort Bend County,

Texas, remand this cause to the 400th District Court of Fort Bend County, Texas,

assess all costs of the appeal against Appellee, and order execution of its judgment

in accordance with its opinion.


                                                   Respectfully submitted,


                                                   /s/Michael C. Diaz
                                                   Michael C. Diaz
                                                   20228 Hwy. 6
                                                   Manvel, Texas 77578
                                                   Telephone: 281-489-2400
                                                   Facsimile: 281-489-2401
                                                   State Bar No. 00793616
                                                   Attorney for Appellant




                                         12
                      CERTIFICATE OF COMPLIANCE


      Pursuant to Tex. R. App. 9.4 (i) 3, I hereby certify that the foregoing

document, Appellant’s Petition for Discretionary Review, filed on February 16,

2015, has 3645 words, based upon the word count under Microsoft Word.


                                            /s/ Michael C. Diaz
                                            Michael C. Diaz
                                            20228 Hwy. 6
                                            Manvel, Texas 77578
                                            Telephone: 281-489-2400
                                            Facsimile: 281-489-2401
                                            Texas Bar No. 00793616
                                            E-mail: mjoeldiaz@sbcglobal.net
                                            Attorney for Appellant

                         CERTIFICATE OF SERVICE

      In accordance with TEX. R. APP. P. 9.5, I, Michael C. Diaz, certify that a

true and correct copy of the foregoing Petition for Discretionary Review has been

served by hand delivery, to the Fort Bend County District Attorney’s Office, 1422

Heimann Circle, 2nd Floor, Richmond, Texas 77469, on this the 16th day of

February, 2015.

                                       13
           /s/Michael C. Diaz
           Michael C. Diaz




APPENDIX




   14
15
Opinion issued December 16, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00660-CR
                            ———————————
               TREYVON RAYMOND WILLIAMS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


               On Appeal from the 400th Judicial District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 12-DCR-60402


                          MEMORANDUM OPINION

      A jury convicted Treyvon R. Williams of murder and found that he used a

deadly weapon in the commission of the crime. TEX. PENAL CODE ANN. § 19.02.

The jury assessed punishment at 70 years’ confinement. Williams appeals,

contending that in light of evidence showing his actions were legally justified, the
evidence was insufficient to support a conviction for murder. He also argues that

the trial court erred by denying his proposed jury instructions on the lesser-

included offenses of manslaughter, criminally negligent homicide, and deadly

conduct.

      We conclude that a rational jury could have rejected the justification

defenses. We further conclude that the proposed instructions on lesser-included

offenses were correctly refused because Williams’s evidence was that he acted

intentionally but with legal justification. Accordingly, we affirm.

                                    Background

      In the weeks prior to the charged offense, Darian Chaney and Desiray

Johnson stole a variety of items from Tevin Johnson and appellant Treyvon

Williams. Tevin and appellant retaliated by stealing items from Darian and

Desiray.

      On the day of the offense, Darian, Desiray, complainant Ron “Rico”

Chaney, and several other people searched for appellant to recover the stolen

items. Darian, Desiray, and Rico went to the home of Angela Jones, and appellant

came out of the house, indicating that he wanted to fight. The group decided there

would be a one-on-one fight in which appellant was allowed to choose his

opponent; he chose to fight Rico. By this time, multiple carloads of people had

arrived at the house, and a crowd had formed around the yard.



                                          2
      Neither appellant nor Rico struck each other during the fight, and the two

separated quickly when another fight broke out between Desiray and another

woman, Andromida Norris. Soon, the fight between Desiray and Andromida ended

as Rico walked towards the women to break them up. At the same time, appellant

walked to a green Lexus, retrieved a gun, and fired three or four shots in the

direction of Rico and Desiray. One of the bullets struck Rico in the head, killing

him. Appellant fled in the green Lexus.

      Later that night, after discussion with his mother and counseling with her

pastor, appellant returned to the scene to turn himself in to the police. After he was

taken to an interview room by the police and read his Miranda warnings, appellant

gave a video-recorded statement.

      In the recorded statement, appellant initially stated that he believed someone

else at the scene had an assault rifle and that he had accidentally shot Rico while

trying to shoot the other individual. Later in the interview, appellant stated that he

shot Rico because he thought Rico intended to hurt Andromida, who was fighting

with Desiray in the yard.

      Appellant was charged with murder. Following trial, he was convicted and

sentenced to 70 years’ confinement.




                                          3
                                      Analysis

      On appeal, appellant challenges the sufficiency of the evidence supporting

his conviction and the trial court’s refusal to charge the jury on lesser-included

offenses.

I.    Sufficiency of the evidence

      Appellant argues in his first issue that the evidence at trial was legally

insufficient to support his conviction for murder because a rational factfinder could

not have properly rejected his theories of self-defense.

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We must defer to

the responsibility of the factfinder to fairly resolve conflicts in the testimony, to

weigh evidence, and to draw reasonable inferences from the facts. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750. In so doing, we

may not reevaluate the weight and credibility of the record evidence and thereby

substitute our own judgment for that of the factfinder. Williams, 235 S.W.3d at

750. This standard applies equally to circumstantial and direct evidence. Laster v.

State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).



                                          4
      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual, or intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an

individual. TEX. PENAL CODE ANN. § 19.02. “[A] person is justified in using force

against another when and to the degree the actor reasonably believes force is

immediately necessary to protect the actor against the other’s use or attempted use

of unlawful force.” Id. § 9.31(a). Deadly force is justified to protect the actor

against another’s use or attempted use of unlawful deadly force and to prevent

another’s imminent commission of murder, kidnapping, sexual assault, or robbery.

Id. § 9.32(a). A person is justified in using deadly force against another to protect a

third person if, under the circumstances the actor reasonably believes them to be,

the actor would be justified in using force against the other under section 9.32 to

protect himself against the unlawful deadly force he reasonably believes to be

threatening the third person, and the actor reasonably believes that his intervention

is immediately necessary to protect the third person. Id. § 9.33.

      The defendant bears the initial burden to produce evidence supporting a

justification defense. Zuliani v. State, 97 S.W.3d 589, 594–95 (Tex. Crim. App.

2003). Once the defendant produces some evidence, the State then bears the

burden of persuasion to disprove the raised defense. Id. The burden of persuasion

does not require the State to produce evidence; it requires only that it prove its case



                                          5
beyond a reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d). Thus, to convict a defendant of

murder after he has raised the issue of self-defense, the State is required to prove

the elements of the offense beyond a reasonable doubt and to persuade the jury

beyond a reasonable doubt that the defendant did not kill in self-defense. Zuliani,

97 S.W.3d at 594; McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d).

       Appellant contends that the jury could not have found against him beyond a

reasonable doubt on the issues of use of deadly force in defense of himself and in

defense of a third person. See TEX. PENAL CODE ANN. §§ 9.32, 9.33. Appellant

asserts that his own statements that he saw somebody in the crowd with an assault

rifle, coupled with other witness testimony that Rico, Desiray, and Darian were at

the house to “jump” him, justify his acts as deadly force in defense of himself. He

further argues that a jury could not have properly rejected evidence that his use of

deadly force was justified to protect Andromida, who testified that when the shots

were fired, Rico and Darian were moving toward her to help Desiray because she

had her on the ground. Andromida further stated that she saw an unknown person

take something black from Rico’s person after he was shot, which appellant

contends is evidence that Rico had a gun. Appellant also relies on other bystander




                                         6
testimony indicating that Rico was moving toward Andromida when the shots were

fired.

         The issue of self-defense is a fact issue to be determined by the jury, which

is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910,

913–14 (Tex. Crim. App. 1991). When a jury finds the defendant guilty, there is an

implicit finding against self-defense. Id. at 914. Although there is some evidence

that appellant reasonably believed that deadly force was immediately necessary to

protect himself or Andromida, other evidence demonstrates that a rational jury

could have been persuaded to the contrary beyond a reasonable doubt. Notably, no

weapon was found on Rico’s person after he was shot, and Andromida testified

that the black object taken from his body “could have been a shoe for all I know.”

Nor did any witness corroborate appellant’s statement that an unknown person at

the scene was carrying an assault rifle. Furthermore, as the exclusive judge of the

facts, the jury was entitled to accept or reject defensive evidence. Id.

         Viewing the evidence in the light most favorable to the verdict, a rational

factfinder could have found beyond a reasonable doubt against appellant on the

issues of self-defense and defense of a third person. See Saxton, 804 S.W.2d at

914; Williams v. State, 226 S.W.3d 611, 617 (Tex. App.—Houston [1st Dist.]

2007, no pet.). We overrule appellant’s challenge to the sufficiency of the

evidence.



                                           7
II.   Lesser-included offense instructions

      In his second issue, appellant asserts that the trial court abused its discretion

and committed reversible error when it refused to instruct the jury on the lesser-

included offenses of manslaughter, criminally negligent homicide, and deadly

conduct.

      We employ a two-pronged test to determine whether a defendant is entitled

to an instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d

377, 382 (Tex. Crim. App. 2012). The first step is a question of law, in which we

compare the elements alleged in the indictment with the elements of the lesser

offense to determine “if the proof necessary to establish the charged offense also

includes the lesser offense.” Id. The Code of Criminal Procedure states that an

offense is a lesser-included offense if:

             (1)    it is established by proof of the same or less than all the
                    facts required to establish the commission of the offense
                    charged;
             (2)    it differs from the offense charged only in the respect that
                    a less serious injury or risk of injury to the same person,
                    property, or public interest suffices to establish its
                    commission;

             (3)    it differs from the offense charged only in the respect that
                    a less culpable mental state suffices to establish its
                    commission; or

             (4)    it consists of an attempt to commit the offense charged or
                    an otherwise included offense.

TEX. CODE CRIM. PROC. art. 37.09.

                                           8
      The second step requires us to consider whether there is some evidence that

would permit a rational jury to find that, if the appellant is guilty, he is guilty only

of the lesser offense. Cavazos, 382 S.W.3d at 383. The second step is a question of

fact and is based on the evidence presented at trial. Id. Thus, a defendant is entitled

to an instruction on a lesser-included offense “if some evidence from any source

raises a fact issue on whether he is guilty of only the lesser, regardless of whether

the evidence is weak, impeached, or contradicted.” Id. “Although this threshold

showing is low, ‘it is not enough that the jury may disbelieve crucial evidence

pertaining to the greater offense, but rather, there must be some evidence directly

germane to the lesser-included offense for the finder of fact to consider before an

instruction on a lesser-included offense is warranted.’” Sweed v. State, 351 S.W.3d

63, 68 (Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543

(Tex. Crim. App. 1997)). The standard may be satisfied “if some evidence refutes

or negates other evidence establishing the greater offense or if the evidence

presented is subject to different interpretations.” Id.

      Here, the indictment alleged the elements of murder under all three

definitions in the Penal Code:

             (b)    A person commits an offense if he:

                    (1)    intentionally or knowingly causes the death of an
                           individual;




                                            9
                   (2)    intends to cause serious bodily injury and commits
                          an act clearly dangerous to human life that causes
                          the death of an individual; or
                   (3)    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 § 19.02(b).

      a.    Manslaughter and criminally negligent homicide.

      Appellant asserts that it was error for the trial court to refuse to instruct the

jury on manslaughter and criminally negligent homicide. Both manslaughter and

criminally negligent homicide are lesser-included offenses of murder. Martinez v.

State, 16 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(manslaughter); Miller v. State, 177 S.W.3d 177, 182 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d) (criminally negligent homicide). But a defendant’s

testimony that he acted in self-defense precludes a finding that there is some

evidence in the record that appellant is guilty only of manslaughter, because a fact

finder cannot find both that a defendant acted recklessly and that he acted in self-

defense. Martinez, 16 S.W.3d at 848; see also Alonzo v. State, 353 S.W.3d 778,

782 (Tex. Crim. App. 2011) (noting precedents in which “[t]he very reason for

denying the manslaughter charges was that the defendants’ evidence was that in



                                         10
committing the homicide they acted intentionally in self-defense, not merely

recklessly”).

      The record also lacks evidence that appellant is only guilty of criminally

negligent homicide. That offense requires that a person act with criminal

negligence, which involves “inattentive risk creation, that is, the actor ought to be

aware of the risk surrounding his conduct or the results thereof.” Lugo v. State, 667

S.W.2d 144, 147–48 (Tex. Crim. App. 1984); see also TEX. PENAL CODE § 6.03(d)

(defining criminal negligence); id. § 19.05 (offense of criminally negligent

homicide). Thus, for a defendant to be entitled to a jury charge on criminally

negligent homicide, the record must contain “some evidence” that the defendant

did not intend the resulting death or know that it was reasonably certain to occur.

Miller, 177 S.W.3d at 182. If such evidence is present, the record must contain

evidence showing that the defendant was unaware of the risk. Id. Here, there is no

evidence in the record that appellant did not intend to cause death or that he did not

know it was reasonably certain to occur when he fired three or four bullets into a

crowd. Nor does the record contain evidence that appellant was unaware of that

risk. To the contrary, intentional conduct was implicit in appellant’s self-defense

testimony. Cf. Martinez, 16 S.W.3d at 848.

      b.        Deadly conduct.




                                         11
      Finally, appellant asserts that it was error for the court to refuse to instruct

the jury on the offense of deadly conduct. The offense of deadly conduct can be

committed in two ways. A person commits the misdemeanor version of the offense

if he recklessly engages in conduct that places another in imminent danger of

serious bodily injury. TEX. PENAL CODE § 22.05(a), (e). The felony version of

deadly conduct occurs if a person knowingly discharges a firearm at or in the

direction of one or more individuals. Id. § 22.05(b)(1). Thus, under these facts,

felony deadly conduct satisfies the first prong of the lesser-included test because it

was included in the proof necessary to establish the offense of murder. See TEX.

CODE CRIM. PROC. art. 37.09(1); Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d).

      Appellant requested an instruction that described felony deadly conduct. On

appeal, however, he advances no argument to support that instruction. Instead, he

merely asserts, without reference to any supporting legal authority, that “when

Appellant shot the gun at Rico and/or Darian, his act was reckless.” A legal

argument that an instruction on misdemeanor deadly conduct should have been

given does not support reversal on appeal when the request at trial asked for an

instruction on felony deadly conduct. See TEX. R. APP. P. 33.1(a), 38.1(i); Green v.

State, No. 14-07-00827-CR, 2009 WL 1875572, at *10 (Tex. App.—Houston

[14th Dist.] Jun. 30, 2009, pet. ref’d) (mem. op., not designated for publication)



                                         12
(finding briefing waiver when appellant argued for a felony deadly conduct

instruction based on evidence that only related to the misdemeanor offense);

Morris v. State, No. 14-06-00564-CR, 2007 WL 2089290, at *4 (Tex. App.—

Houston [14th Dist.] Jul. 24, 2007, no pet.) (mem. op., not designated for

publication) (determining that request for lesser-included instruction of

misdemeanor deadly conduct was inadequate to preserve error on failure to give

instruction on felony deadly conduct).

                                  *        *      *

      Because appellant has failed to establish that he was entitled to a lesser-

included offense instruction for manslaughter, criminal negligence, or deadly

conduct, we overrule his second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           13
