Opinion issued July 24, 2014.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00768-CR
                           ———————————
                    DARRYL THOMAS REED, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Case No. 1326043


                         MEMORANDUM OPINION

      A jury convicted Darryl Thomas Reed of capital murder, and the trial court

assessed punishment at confinement for life without the possibility of parole. 1 In


1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013) (defining capital
      murder as intentional murder in course of committing or attempting to commit
      robbery).
his sole issue, Reed contends that the trial court abused its discretion by not

instructing the jury on the lesser-included offense of manslaughter. We affirm.

                                     Background

      One night, Reed and several friends decided to order pizza from a local

restaurant and then rob the delivery driver at gunpoint when he arrived. One friend

placed the order and gave the restaurant the delivery address of a vacant house

nearby. When the driver, Phillip Little, arrived at the abandoned house, Reed and

two others approached the car with loaded guns. Pointing guns at the car, one of

them told Little to “give it up, give it up.”

      According to Reed, Little quickly shifted gears and tried to drive away,

almost hitting Reed with the car. Reed responded by firing four shots at Little’s

car. One of the four shots went through the car’s rear window, hitting Little in the

back and causing him to slide down into the car seat. Little’s car then swerved off

of the road and crashed into the fence of a nearby house. When the police officers

arrived at the scene, Little was unresponsive. Little was later pronounced dead

upon his arrival at the hospital.

      After learning of Little’s death, Reed contacted the police to give his version

of the shooting. In a recorded statement, Reed admitted to shooting Little and

apologized, saying that it was an accident and that he “didn’t mean to kill [Little].”




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       Based on his confession, Reed was charged with capital murder. At trial,

before the State rested its case, the trial court gave both parties a proposed jury

charge, which included instructions on capital murder and the lesser-included

offense of felony murder. Reed objected to the proposed charge, and requested an

instruction on manslaughter, based upon Reed’s statement that he had not intended

to kill Little.

       While Reed did not testify at trial, the jury heard evidence of his recorded

statement. At the close of evidence, the trial court again reviewed the proposed

jury charge and again Reed requested an instruction on manslaughter. The trial

court denied his request. The final charge instructed the jury on capital murder and

felony murder.

       The jury found Reed guilty of capital murder and assessed punishment at life

confinement, without the possibility of parole. Reed timely appealed.

                             Lesser-included Offense

       Reed contends that the trial court should have instructed the jury on the

lesser-included offense of manslaughter because there was “more than a scintilla of

evidence that [he] acted only recklessly” in causing Little’s death and that he did

not shoot Little in furtherance of the attempted robbery. The State responds that

Reed was not entitled to a manslaughter instruction because the same evidence that

would have supported an instruction on manslaughter also supported the court’s


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instruction on another lesser-included offense, felony murder. See TEX. PENAL

CODE ANN. § 19.02(b)(3) (West 2011) (defining felony murder).

A.    Standard of review

      When a defendant raises a claim of jury-charge error, we apply the

procedure set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985). We first determine whether there was error in the charge. Id.; McIntosh v.

State, 297 S.W.3d 536, 542 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). If

the charge was erroneous, we then consider whether the error was harmful.

Almanza, 686 S.W.2d at 172; McIntosh, 297 S.W.3d at 542. An erroneous jury

charge requires reversal when the defendant has properly objected to the charge

and we find “some harm” to his rights. Almanza, 686 S.W.2d at 171; see McIntosh,

297 S.W.3d at 542.

B.    Applicable law on lesser-included offense instructions

      The Texas Code of Criminal Procedure states that “in a prosecution for an

offense with lesser included offenses, the jury may find the defendant not guilty of

the greater offense, but guilty of any lesser included offense.” TEX. CODE CRIM.

PROC. ANN. art. 37.08 (West 2006). A lesser-included offense is one that

      (1) is established by proof of the same or less than all the facts
          required to establish the commission of the offense charged;

      (2) 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;

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

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

Id. art. 37.09 (West 2006).

      A trial court has a responsibility to instruct the jury on “the law applicable to

the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Lesser-included

offenses, however, are not considered law applicable to the case; they are

defensive issues, which “frequently depend upon trial strategy and tactics” to

determine if they should be requested. Tolbert v. State, 306 S.W.3d 776, 780 (Tex.

Crim. App. 2010). A trial court has a duty to instruct the jury on lesser-included

offenses only if a party has made a proper request. See id. at 779–80 (noting that

trial courts are “not statutorily required to sua sponte instruct” jury on lesser-

included offenses); cf. Ford v. State, 38 S.W.3d 836, 840 (Tex. App.—Houston

[14th Dist.] 2001, no pet.) (stating trial court may sua sponte instruct jury on

lesser-included offenses, but not statutorily required to do so).

C.    Whether the charge was erroneous

      Courts apply a two-step analysis when determining whether a trial court

should have granted a request for an instruction on a lesser-included offense: first,

they determine whether the requested offense is a lesser-included offense by

comparing the elements of the two offenses. Young v. State, 428 S.W.3d 172, 175

                                           5
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Hall v. State, 225 S.W.3d

524 (Tex. Crim. App. 2007). If the requested offense is a lesser-included offense of

the charged offense, then they determine whether any evidence adduced at trial

would support instructing the jury on the lesser-included offense. Id. at 176; see

Hall, 225 S.W.3d at 536 (stating that evidence must support lesser-included

offense as “valid, rational alternative to the charged offense”). The standards for

whether the evidence is legally sufficient to convict a defendant of an offense and

whether the evidence is sufficient to require a lesser-included offense are “quite

different.” Wasylina v. State, 275 S.W.3d 908, 909 (Tex. Crim. App. 2009)

(citation omitted). “The evidence could easily be legally sufficient to support a

conviction for a lesser-included offense but not justify the submission of a lesser-

included-offense instruction because the evidence does not show that the defendant

is guilty only of the lesser-included offense.” Id. at 909–10; see Jimenez v. State,

419 S.W.3d 706, 712 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (applying

Hall and noting that defendant is entitled to instruction on lesser-included offense

only when evidence shows he is guilty only of lesser-included offense).

      Reed contends that his recorded statement provided evidence to support a

jury’s conclusion that his actions were “sufficiently detached from the robbery”

and, therefore, “trigger[ed] consideration of manslaughter” as a lesser-included

offense.


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      1.    Manslaughter is a lesser-included offense of capital murder as
            charged

      We first consider whether manslaughter is a lesser-included offense of

capital murder. Hall, 225 S.W.3d at 535 (“The first step in the lesser-included

offense analysis [is] determining whether an offense is a lesser-included offense of

the alleged offense . . . .”). A person commits capital murder if he intentionally

commits murder in the course of committing or attempting to commit another

felony, including robbery. TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp.

2013). A person commits manslaughter if he recklessly causes the death of another

person. TEX. PENAL CODE ANN. § 19.04 (West 2011).

      Reed was charged with capital murder as follows:

      [T]he Defendant, heretofore on or about November 2, 2011, did then
      and there unlawfully while in the course of committing and attempting
      to commit the robbery of Phillip Little, intentionally cause the death
      of Phillip Little by shooting Phillip Little with a deadly weapon,
      namely a firearm.

Both parties agree that, as alleged in this case, manslaughter is a lesser-included

offense of capital murder. See Moore v. State, 969 S.W.2d 4, 9–10 (Tex. Crim.

App. 1998) (noting that voluntary manslaughter is lesser-included offense of

capital murder); Gilbert v. State, 196 S.W.3d 163, 165–66 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d) (same). Accordingly, we must address whether there

was sufficient evidence to support instructing the jury on that offense. Hall, 225

S.W.3d at 536 (noting that second step of analysis requires courts to ask whether

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“the elements of the lesser offense [are] ‘established by proof of the same or less

than all the facts required to established the commission of the offense charged’?”

(citation omitted)).

      2.     Whether Reed was entitled to a manslaughter instruction

      We consider all of the evidence admitted at trial and determine whether

there is “more than a scintilla of evidence” entitling the defendant to a lesser

charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Bridges v.

State, 389 S.W.3d 508, 511–12 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

We may not, however, consider the “credibility of the evidence and whether it

conflicts with other evidence or is controverted.” Goad, 354 S.W.3d at 446–47

(citation omitted); see Bridges, 389 S.W.3d at 512.

      Also, “when the evidence relied upon to raise the requested lesser-included

offense establishes a lesser-included offense that is greater than the one requested,

then the defendant is not entitled to his requested submission.” Hudson v. State,

394 S.W.3d 522, 525 (Tex. Crim. App. 2013); see, e.g., Flores v. State, 245

S.W.3d 432, 439 (Tex. Crim. App. 2008) (holding that defendant charged with

murder was not entitled to instruction on deadly conduct when “the evidence on

which the defendant is relying raises another offense that ‘lies between’ the

requested and charged offenses”).




                                         8
      Here, in addition to capital murder, the trial court also instructed the jury on

felony murder. A person commits felony murder if he 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, commits or attempts to commit an act clearly dangerous to human life that

causes the death of another person. TEX. PENAL CODE ANN. § 19.02(b)(3) (West

2011). The evidence suggests two possible underlying offenses to support the

jury’s conclusion that Reed committed felony murder: robbery and deadly conduct.

See Washington v. State, 417 S.W.3d 713, 721 (Tex. App.—Houston [14th Dist.]

2013, pet. ref’d) (noting deadly conduct is underlying felony for felony murder);

Ortiz v. State, 144 S.W.3d 225, 232–33 (Tex. App.—Houston [14th Dist.] 2004,

pet. ref’d) (noting deadly conduct is lesser-included offense of murder when there

was some evidence that defendant recklessly shot firearm and fatally injured

another person).

       A person commits felony deadly conduct when he recklessly engages in

conduct that places another in imminent danger of serious bodily injury by

knowingly discharging a firearm at or in the direction of one or more individuals or

a vehicle, with reckless disregard for whether the vehicle is occupied. TEX. PENAL

CODE ANN. § 22.05(a)–(b) (West 2011); see id. § 19.02(b)(3); Washington, 417

S.W.3d at 721.


                                          9
      Reed denied that he intended to kill Little, but he admitted that he fired at

Little’s vehicle, knowing that Little was driving it. This evidence is sufficient for a

jury to conclude that Reed committed the underlying offense of deadly conduct.

See TEX. PENAL CODE ANN. § 22.05 (b), (c) (West 2011) (stating that person

commits deadly conduct by knowingly discharging firearm at or in direction of

occupied vehicle and that recklessness and danger are presumed if actor knowingly

points firearm at or in direction of another whether or not actor believed firearm to

be loaded). Thus the intermediate offense of felony murder based on deadly

conduct foreclosed an instruction on the even lesser-included offense of

manslaughter that Reed requested.

      In support of his contention that the evidence supported an instruction on

manslaughter, Reed distinguishes his circumstances from those in Gadsden v.

State, 915 S.W.2d 620, 622–23 (Tex. App.—El Paso 1996, no pet.) (holding trial

court did not err by not instructing jury on involuntary manslaughter when jury

could not have convicted defendant only of that crime) and Fernandez v. State, No.

14–04–00144–CR, 2005 WL 2076492 (Tex. App.—Houston [14th Dist.] Aug. 30,

2005, pet. ref’d) (mem. op., not designated for publication) (holding that trial court

was not required to instruct jury on manslaughter when there was sufficient

evidence that defendant had committed intermediate lesser-included offense of

felony murder). Specifically, Reed contends that, unlike Fernandez and Gadsden,


                                          10
he fired his weapon in a “reckless” response to Little almost hitting him with his

car—and not in furtherance of committing a robbery. However, robbery was one of

two available felonies to support a felony murder charge, and we have already

concluded that there was sufficient evidence for the jury to conclude that Reed

engaged in deadly conduct to support a felony murder instruction.2

      Accordingly, we conclude that that the trial court did not err by refusing to

instruct the jury on manslaughter.3

      We overrule Reed’s sole issue.




2
      The evidence that Reed shot at Little while in immediate flight from the attempted
      robbery could also support a jury’s conclusion that he had committed felony
      murder based. See TEX. PENAL CODE ANN. § 19.02(b)(3) (defining felony murder
      as committing or attempting 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, commit[ting] or attempt[ing] to commit an
      act clearly dangerous to human life that causes the death of an individual.”
      (emphasis added)).
3
      We do not reach the issue of harm because we conclude that Reed was not entitled
      to an instruction on manslaughter. Even assuming that Reed was entitled to the
      manslaughter instruction, the omission of that instruction was harmless because
      the jury rejected the lesser-included intermediate offense of felony murder and
      found sufficient evidence to convict him of the charged offense of capital murder.
      See, e.g., Masterson v. State, 155 S.W.3d 167, 171–72 (Tex. Crim. App. 2005)
      (holding that any error caused by not instructing jury on criminally negligent
      homicide was harmless when defendant was convicted of charged offense of
      capital murder and jury rejected the lesser-included intermediate offense of
      manslaughter); Flores v. State, 215 S.W.3d 520, 530 (Tex. App.—Beaumont
      2007), aff’d, 245 S.W.3d 432 (Tex. Crim. App. 2008) (holding that any error in
      not instructing jury on felony murder was harmless when trial court instructed jury
      on manslaughter and injury to child and jury found defendant guilty of greater
      charged offense).
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                                   Conclusion

      We affirm.




                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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




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