                 S63 -IS                    NO.

                                                                  RECEIVED IN
                                                             COURT OF CRIMINAL APPEALS

                                                                    OCT 02 2015
ORIGINAL                               IN    THE


                            COURT OF^CRIMINAL APPEALS AMAC0St8sGS©?
                                       OF    TEXAS




                                      JOSE    VELEZ


                                             V.


                                    STATE    OF   TEXAS




                APPELLANT'S   PETITION      FOR    DISCRETIONARY REVIEW

                                                                             TTCCl
                                                                     COURT OF CRIMINAL APPEALS
                         From The 187th District Court                      U j I V f„ Lit (J
                         Trial Cause No. 2013-CR-0307C
                               Bexar County/         Texas
                                                                         Abel Acosta, Clerk


                    On Petition For Discretionary Review From
                       The First Court Of Appeals Of Texas
                                at   Houston/       Texas
                       Appellate Cause No. 01-14-00544-CR



 JOSE   VELEZ
 TDCJ-CID#1930040
 COFFIELD    UNIT
 2661   FM   2054
 TENNESSEE COLONY,TX        75884




 ORAL ARGUMENT REQUESTED
                   TABLE OF CONTENTS     T.R.A.P.   68.4(a)

                                                                      Page
INDEX OF AUTHORITY                                                    b
STATEMENT OF ORAL ARGUMENT                                             i
STATEMENT OF THE CASE. .                                               i
STATEMENT OF PROCEDURAL HISTORY                                        i
GROUNDS    FOR   REVIEW

    ONE:         WHETHER THE FIRST COURT OF APPEALS ERRED IN
                 UPHOLDING THE TRIAL COURT'S DENIAL OF PETITIONER'S
                 REQUEST FOR A LESSER INCLUDED OFFENSE INSTRUCTION
                 OF MANSLAUGHTER BE INCLUDED IN THE COURT'S CHARGE?        1

    TWO:         WHETHER THE FIRST COURT OF APPEALS ERRED IN
                 UPHOLDING THE TRIAL COURT'S DENIAL OF PETITIONER'S
                 REQUEST THAT AN INSTRUCTION ON SELF DEFENSE BE
                 INCLUDED IN THE JURY CHARGE?                              1

ARGUMENT ONE                                                              1-4

ARGUMENT TWO                                                              5-8

PRAYER FOR RELIEF                                                      9
CERTIFICATE OF SERVICE                                                 9
APPENDIX                                                               10




                                   -a-
                  INDEX OF AUTHORITY         T.R.A.P.   68.4(b)

Cases                                                                Page

Aquilar v. State,682 S.W.2d556,558(Tex.Crim.App.1985)             ,-.. 2
Almanza v. State,686 S.W.2d 157 (Tex .Crim. App. 1984 )               3,6
Bennett v. State,235 S.W.3d 241,243(Tex.Crim.App.2007)                6
Cavazos v. State,382 S.W.3d 377,383(Tex.Crim.App.2012)                1
Chapman v. State,921 S.W.2d 694,695(Tex.Crim.App.1996)                6
Durden v. State 290 S.W.3d 413(Tex.App.-Texarkana 2009)               3
Hamel v. State,916 S.W.2d 491 (Tex .Crim. App. 1996 )                 8
Juarez v. State,308 S.W..3d 398,404-05(Tex.Crim.App.2010)             5
Martinez v. State,16 S.W.3d 845-848(Tex.App.-Houston[1st Dist.]
2000)                                                                 3
Mathis v. State,67 S.W.3d 918 ,926 (Tex .Crim. App .2002 )            2
Ryser v. State,01-13-00634-CR(Tex.App.-Houston[1st Dist]
November 25,   2014)                                                  7
Shaw v. State,243 S.W.3d 647,657-58(Tex.Crim.App.2007)                5
Thomas v. State,678 S.W.2d 82 ,84( Tex .Crim. App. 1984)              8


                              STATUTES   &   RULES


TEX.R.APP.PROC.    68.4(a)                                            a
TEX.R.APP.PROC.    68.4(b)                                            b
TEX .R. APP .PROC . 68.4(c)                                   .       i
TEX.R.APP.PROC.    68.4(d)                                            i
TEX.R.APP.PROC.    68.4(e)                                            i
TEX.R.APP.PROC.    68.4(f)                                            1
TEX.R.APP.PROC     66. 3 (O                                           1
TEX.R.APP.PROC.    66.3(e)                                            1




                                     -b-
TO THE HONORABLE JUDGES        OF    THE   COURT OF CRIMINAL     APPEALS:

   COMES NOW, Jose Velez,           pro se and respectfully submits this

Petition for Discretionary Review and requests that this Court

grant review of this cause. He will show the following in support

thereof:

                    STATEMENT REGARDING ORAL ARGUMENT              T.R.A.P. 68.4(c)

 Petitioner requests oral argument as the issues require detailed

explanation to fairly vindicate his claim.



                             STATEMENT OF THE CASE           T.R.A.P.    68.4(d)

 Petitioner was charged with the murder of Juan Malacara Romero.

It was alleged that on or about October 15,2012 that petitioner

with intent to cause serious bodily injury did strike Romero with

his hand     and foot.(CR:5) The State sought to enhance punishment

with a prior felony of indecency w/child by exposure.(CR:12-13)

Petitioner    was    tried     and     found     guilty     but not before timely

requesting a charge on manslaughter and self defense. The Court

denied these and he was sentenced to (45)                 forty-five years in

Texas   Department     of     Criminal       Justice      Institutions    Division
and assessed a $10,000.oo fine.             (CR:85-86 & RR 2:1 ) He timely

appealed.

                     STATEMENT OF PROCEDURAL HISTORY              T.R.A.P.   68.4(e)

 In trial cause number 2013-CR-0307C from the 187th District Court

of Bexar County,Texas petitioner was convicted May 9,2012 by a jury.
Punishment was assessed at (45) fortyPfive years,$10,000.00 fine.

(Cr:85-86 & R2:l) He gave notice of appeal. The First Court of

Appeals affirmed in an unpublished opinion issued June 4, 2015.
Rehearing was filed.and denied July 2,2015. The Court granted a (60)
day extension to file PDR.
                                           -i-
                       GROUNDS FOR REVIEW                   T.R.A.P.         68.4(f)

ONE:     WHETHER       THE      FIRST       COURT    OF    APPEALS      ERRED       IN    UPHOLDING
         THE    TRIAL COURT'S DENIAL OF                     PETITIONERS REQUEST FOR                  A
         LESSER       INCLUDED         OFFENSE       INSTRUCTION            OF    MANSLAUGHTER       BE
         INCLUDED          IN   THE    COURT'S       CHARGE?


TWO:     WHETHER       THE      FIRST       COURT    OF    APPEALS      ERRED       IN    UPHOLDING
         THE TRIAL COURT'S DENIAL OF PETITIONERS REQUEST THAT
         AN    INSTRUCTION ON               SELF    DEFENSE      BE    INCLUDED          IN THE    JURY
         CHARGE?



                       REASON FOR REVIEW                    T.R.A.P.             66.3(e)

WHETHER       THE    JUSTICES         OF    THE    FIRST    COURT      OF    APPEALS       HAS    DISAGREED
ON A    MATERIAL       QUESTION OF LAW NECESSARY TO THE COURT'S DECISION?



ARGUMENT      ONE:


     Petitioner        was       charged with Murder,pursuant to Tex.Penal Code

19.02(b)(2) which provides:

     (a) A person commits an offense if he intends to commit serious

         bodily injury and commits an act clearly dangerous to human

         life       that   causes          the    death    of   an    individual.

(CR: 5) Prior to submitting the guilt-innocence charge to the jury,

Petitioner requested that the trial court submit the lesser included

offense of manslaughter. This request was denied.                                        (R: 5-6)

     A person commits manslaughter if he recklessly causes the death

of     an individual.            Tex.Pen.Code §19.04.                 This Court has determined

that     manslaughter             is        a lesser-included offense of murder under

Texas Penal Code §19.02(b)(2).                        Cavazos v.            State,382 S.W.3d 377,383

(Tex.Crim.App.2012). The Court determined in Cavazos that "causing

death while consciously disregarding a risk that death will occur

differs from           intending             to     cause       serious          bodily injury with a

resulting death only in the respect that a less culpable mental

state establishes               its commission.             Cavazos,         id.    at 385.


                                                      -1-
     A     two-prong              test applies to whether a jury charge on a lesser

must be given:                   first,      the lesser included offense must be included

within              the        proof necessary to establish the offense charged,and

second,              some        evidence          must    exist        in   the record that if the

defendant                 is     guilty       he     is    guilty only of the lesser offense.

Aquilar v. State,682 S.W.2d 556,558(Tex.Crim.App.1985); Mathis v.

State,67 S.W.3d 918,926(Tex.Crim.App.2002).

 As indicated above the first prong of the test has been met.                                    As to

the second, the record clearly establishes that a jury could have

found from the evidence that rather than intending serious bodily

injury              the        conduct       of the actors was reckless instead, in that

they       were            aware       of     but     consciously disregarded a substantial

and       unjustifiable                    risk     that    the circumstances existed or that

the result would occur. Tex.Pen.Code §6.03(c).

 As evidenced by the testimony of Larry Castro, it demonstrates

that           all        three       actors were trying to keep the complainant from

reaching in his pocket and that there was no intent to kill him.

( R 4 : 21-22                    ) There were no weapons used during the incident,

such           as     a        firearm,      or a knife or a club,             and the intent of the

participants                    was    ambiguous           to     say    the   least. The jury could
have determined that the intent of the actors was to prevent the

deceased              from        drawing a weapon or to cause injury not amounting

to serious bodily injury.

         The        testimony of Bernardo Crisanto., the other co-defendant, is

likewise instructive. He testified that there was no plan in place

to       attack the complainant and it was not his intent to seriously
injure              him.        (R    3:     189,195 ) Even during questioning Crisanto,

while           admitting to knowing that he was hurting the complainant


                                                            -2-
did not claim that he knew                 he or the others were causing serious

bodily injury.       (R 3: 196)

 Further,    the complainant did not die of an observable injury,                   but

rather due to an internal injury that had to be determined by the

medical     examiner.           The     physical    altercation.between all of the

parties was likewise brief;                lasting about half a minute according

to    the   video        capture        of the incident. (R8: State's Exhibit 3)

Accordingly this is not a case where intent can be inferred from

the    actions      of        the     participants,   such as a case in which the

deceased is shot with a gun or stabbed with a knife. Martinez v. State

16 S.W.3d 845-848(Tex.App.-Houston[lst Dist.]2000).

STANDARD    OF   REVIEW


 The standard of review for claims of a jury charge error is set

out in Almanza v. State, 686 S.W.2d 157(Tex.Crim.App.1984). A court

will first determine if there is error in the jury charge.                    If there

is error,    then the court will             next determine whether   the error was

the subject of a timely objection. In the event that there is a

timely objection, the court's judgment                  is   reversed if the error

is    calculated         to     injure     the rights of the defendant. Tex.Code

Crim.Proc.       Art.         36.19.     This standard requires proof of no more

than some harm to the accused from the error.                  Durden v.   State,   290

S.W.3d 413(Tex.App.-Texarkana 2009). The harm in this case is

evident and the First Court of Appeals erred in failing to

recognize the degree of harm here to petitioner. Had the jury

found him guilty of manslaughter he would have been subjected to

a reduced punishment range where the minimum range of punishment

would have began at five years rather than fifteen with a maximum
of twenty rather than 99 or Life. This difference is significant.

                                              -3-
 The record supports the contention that petitioner made a timely

request for an instruction and was denied by the trial court.( R5:

5-6 ) The degree of harm is significant as it subjects petitioner

to a wider range of punishment starting at 15 years. The error is

how can petitioner not be eligible for a charge on manslaughter

when     he     was     acting        in        concert with others whom were eligible

for said charge. And he clearly was not the precipitator of the

events that day.          It is a reasonable 'deduction'                     from the evidence

that     Larry        Castro        possessed the motive to protect himself from

complainant. Castro was the reason for petitioner's presence and

the 'impetus'          for the attack,            if any.

 The Justices of the First Court of Appeals have failed to give

proper        deference        to     the       testimony of Larry Castro who claimed

self     defense.        The        record reflects that petitioner was a friend

of Castro whose sole presence was because of Castro giving support

to     the     reasonableness              of    the    inference   that     Castro's   fear   fed

the     other     co-defendants.                Therefore,      the Court of Appeals erred

in     failing to recognize the need for a charge on a justification

defense or manslaughter in this case.                           Accordingly,      the Justices

have     disagreed        on        a material question of evidence in this case

which should favor petitioner.                         Review    should be granted so this

court may decide this point. T.R.A.P. 66.3(e).

 Having met all prerequisites as to request for charge,denial,

objection,        harm        and facts,         in the record to support said charge

petitioner is without an adequate remedy at law, save the discretion

of this court.           In     factoring           harm,it      must   be     considered that

petitioner received twice the amount of time as his co-defendants

for    an un-planned altercation where no guns or knifes were used.

                                                   -4-
ARGUMENT     TWO:


     The    Court       of       Appeals        erred       in upholding the trial court's

denial of petitioner's request that an                           instruction on self defense

be included in the jury charge. Prior to submitting the guilt-

innocence charge to the jury, petitioner requested that the trial

court instruct the jury on the law of self defense. This request

was denied.      ( R5:       4    )

Applicable Law

 The trial       court           admitted prior testimony of co-defendant Larry

Castro.    This testimony raised the factual issue of self defense,not

only as it applied                to     Castro        himself,        but    also as it applied

to petitioner. Castro                   claimed        that     he     was    trying to keep the

complainant's hands out of his pockets because he believed him to

be    carrying      a     weapon          and       that      petitioner had instructed the

complainant to take his hands out of his pocket; which he refused

to do.     ( R4 : 19-24 )

     The   trial        court          is required (obligated) to give a requested

instruction on every defensive issue raised by the evidence without

regard to its source or strength, even if the evidence is contrad

icted or is not         credible.             Juarez   v.     State,    308 S.W.3d 398,     404-05

(Tex.Crim.App.2010).                   Even     a   minimum          quantity     of   evidence is

sufficient to raise a defense as long as the evidence would support

a rational jury finding as to the defense. A defense is supported

(or raised) by the evidsence if there is some evidence, from any

source,    on each element of the defense that,                              if believed by the

jury would support a rational inference that the element is true.

Shaw v. State, 243 S.W.3d 647,657-58(Tex.Crim.App.2007)



                                                    -5-
 A defendant at trial preserves                         error ifthe requested charge is

specific          enough to put the trial court on notice of the omission

or error in the charge,and the requested charge need not be in

"in perfect form" but only sufficient enough to bring the request

to the trial court's attention.                        Chapman v.      State,   921 S.W.2d 694,

695(Tex.Crim.App.1996). "Magic words" are not required; a complaint

will be preserved if the substance of the complaint is conveyed to

the trial judge. Bennett v. State, 235 S.W.3d 241,243(Tex.Crim.App.

2007). Petitioner was charged with murder;                             therefore it was

abundantly clear that he was requesting a self defense instruction

on        the    law     of     deadly        force in defense of person              pursuant to

Texas Penal Code § 9.32.                  The evidence from Castro that the

complainant was reaching for an object in his pocket and that

an object was in his pocket are sufficient to raise the issue of

self       defense.


STANDARD         OF    REVIEW


 In assessing harm for an erroneously omitted defensive issue a four

part analysis is applied:                     (1) the entire jury charge;             (2) the state

of the evidence,              including the contested issues and weight of

probative evidence; (3) the arguments of counsel; and (4) any other

relevant information revealed by the record of the trial as a whole.

Almanza v. State, 686 S.W.2d 157,171(Tex.Crim.App.1984).

     In     petitioner's          case        since     the trial court refused both his

requested instructions                   on     sself        defense and the lesser offense

of        manslaughter          the    jury      was        left with no option but to find

petitioner            guilty      of     murder        if     they    found he acted together

with       his   co-defendants.

     An instruction on self defense                         would    have   allowed     the   jury


                                                      -6-
to     consider      if    petitioner        himself   felt that his own life was

in danger during the altercation. Just as importantly,                   it would

have allowed         the    jurors      to   determine    whether    an offense was

committed at all.          If the jurors found that Larry Castro, who was

the first one to contact the complainant, was justified in using

force to protect himself because of the complainant's threats they

could have reasonably concluded that petitioner was not assisting

in an unlawful act but in another person's justified use of force.

     In Ryser v. State, the First Court of Appeals recently held that

self defense is not necessarily personal to a defendant on trial.

The defendant        in that case was        a   law enforcement officer   on   trial

for official oppression. As a defense he raised the justification

defense that a peace officer "is justified in using force against

another       when   and     to   the    degree the actor reasonably believes

the force is immediately necessary.to make or assist in making an

arrest." Tex.Pen.Code §9.51. In order to place this defense in

proper context the trial court granted the state's request that

the jury also be instructed concerning the limits of use of force

by police officers pursuant to Tex.Pen.Code §9.31(c). Specifically,

where     a     suspect     may   use    force in response to unlawful force.

Ryser v. State,01-13-00634-CR(Tex.App.-Houston[1st Dist]November

25,    2014).

      In holding that this was proper the First Court of Appeals

determined that self defense is relevant not only from a defendant's

perspective but also from the perspective of the relevant actor.

Ryser,    id.   at 21.     In Ryser the relevant actor was not the defendant

but the alleged victim.           In petitioner's case the relevant actors

are both himself and Larry Castro.                 In Ryser,   it was also determined

                                             -7-
that     self        defense       could   be    raised without the testimony of a

relevant actor,          but from other facts and circumstances as well.

Ryser,    id.,at 21-22.

   The     Justices           of    the Court of Appeals erred in upholding the

trial court's denial of petitioner's request for a self defense

instruction. This denial effectively denied petitioner a right to

put on a defense.             It is settled law in Texas that a defendant may

raise multiple defensive theories at trial.                   Hamel v. State,916 S.W.2d

491(Tex.Crim.App.1996); Thomas v. State,678 S.W.2d 82,84(Tex.Crim.

App.1984)(holding defendant entitled to admission of every defensive

issue raised by the evidence,even if the defense may be inconsistent

with other defenses.)               This Court is the ultimate finder of fact in

criminal        cases     in Texas and has upheld the right to a defendant's

right to be able to present a defense at trial even multiple theories

for the juries consideration.                In this case the First Court of Appeals

has misapprehended the right of petitioner to be charged on self

defense where the testimony of a relevant actor not defendant's

testimony made self defense relevant.                   Based on this Court's case

law (precedent) the Justices of the First Court of Appeals have

sanctioned a departure by a lower court as to call for an exercise

of this Court's power of supervision. The                    Court   of   Appeals has

misapprehended the right to present a defensive theory or multiple

theories.        And     or    the right of defendant to react to "apparent"

danger     as        though    it    was    real.     The testimony of Larry Castro

admitted        in     petitioner's        trial raised several issues which the

Justices fail to give deference. Petitioner has a right to defend

a third party from real or apparent danger. He has a right to

defend himself based on the real or apparent fear of Larry Castro.

                                                -8-
 This court should grant review of this issue            and   allow   full

briefing and appointment of counsel to resolve this situation

from petitioner's perspective.      It     must   be   considered   by this

Court that petitioner 's trial cannot be called reliable when he

was denied an opportunity to present a defense at trial. Further,

based on this Court's precedent the Court of Appeals has so far

departed from the accepted and usual course of judicial proceedings

as   to call for an exercise of the Texas Court of Criminal Appeals'

power of supervision.

                          PRAYER   FOR   RELIEF


 WHEREFORE, PREMISES CONSIDERED, petitioner respectfully prays for

the relief requested or other equitable relief the Court may deem

just.

                               Respectfully/ submit; ted..

                               Jose V<§fl.ez#193
                               CoffieJ/d Unit
                               2661 iyk 2054
                               Tennessee Colony,




                        CERTIFICATE   OF   SERVICE

 I, Jose Velez, hereby certify that a true and correct copy of

this Petition for Discretionary Review was mailed to the Clerk

of the Texas Court of Criminal Appeals postage prepaid to P.O. Box

12308 Capitol Station, Austin, Texas 78711.

Executed on this^^day of JW/«^$^ 2015. V_,J^1/.W^! \r^T^


                                   -9-
    Opinio* is*ued J„a,   4 2Q15                        '"' '   7Slv




                                     In The

                               Court of auu^
                                    For The




                             NO. 01-14-00544-CR

                           JOSE VELEZ; Appelllant
                                     v;   •   .

                   "ESTATE OF TEXAS, Appeii;
                On Appeal fr„mthei87(|lDi.srr.c(Court
                           Bexar County, Texas'
                 Tnal Court Case No. 2013-CR-0307C
                     MEMORANDUM OPINION
   JeSta chargedJo,Veiezwth(hemurderofjuanM^
^~^, - enhancement paragraph aJlegmg ^ vete ^ a

   «*of,h,s Court on any^evanUs^ThxKpk iTJ™" D*fe-
                                                         After a trial, a jury found

Velez guilty of murder and found the enhancement paragraph true. It assessed a

punishment of 45 years' imprisonment and a $10,000 fine.

       On appeal, Velez contends that the trial court erred in denying his requests

for two jury instructions, one on the lesser-included offense of manslaughter and

the other on the law of self-defense. We affirm.

                                   Background

      Romero and Larry Castro were regulars in a pool league that met Monday

evenings at a sports bar in San Antonio. They had once played on the same team,

but by 2012, they played on opposing teams. One Monday evening in October

2012, they were participating in a league tournament when two men, later

identified as Velez and Bernard Crisanto, walked into the bar.        Crisanto had

accompanied Velez into the bar because Velez had told him that he needed to go

there to pick up some money.

      The bar owner did not recognize Crisanto and Velez, but later recalled

having noticed them because they both were tall and one was wearing a muscle

shirt, which violated the bar's dress code. While the owner considered whether to

ask Crisanto and Velez to leave because of the violation, the two men approached

Castro. Within a few minutes—before the bar owner spoke to them-^all three men

left the bar together.
          In the meantime, Romero had left the bar to buy cigarettes' at the
   convenience store apross the street. Crisanto and Velez talked into the store,
   followed Romero out, and confronted him. Romero acknowledged the two men.
   He seemed to look behind them, where Castro was standing, then suddenly started
   runnmg back to the store. Castro charged forward and pushed Romero into the
  door, pmrred him, and threw him to the pavement. Then, Castro grabbed Romero's
  leg and pulled him between two cars parked in front of the store. Castro began
  kicking Romero, and Cnsanto and Velez joined in. Cnsanto kicked Romero in the
  head, wh„e Velez kicked him in the abdomen. The men were significantly larger
 than Romero; Romero tried to fight back, bu, eventually rolled into aball and lost
 consciousness.


        Velez, Castro, and Crisanto stopped kicking Romero and left the scene
 shortly after he became unconscious. Castro returned to the bar, agitated. He
retrieved his pool cues, and he and his w,fe abruptly left the bar. The other two
men, who had parked their cars nearby, also left the area.
       Aconvenience store employee called 9-1-1 when he saw the fight begin.
After the three assailants left the scene, another employee attended to Romero and
stayed with him until the emergency responders arrived. Asecurity video camera
at the convenience store captured the entire incident.
      Romero died that evening. He had several blunt force injuries, abrasions,

and contusions on his face, abdomen, back and arms, multiple: rib fractures, and

internal bruising in two areas deep beneath his scalp. The forensic pathologist

from the Bexar County Medical Examiner's office who performed the autopsy

ruled that the cause of Romero's death was homicide through blunt force trauma to

the chest, which caused a large tear through the epicardium, the membrane

between the pericardium and the outer surface of the heart.

      After the State rested its case in chief, the defense proffered an excerpt of

Castro's testimony from his trial. In the portion read to the jury in this case, Castro

stated that he was in fear for his life when he saw Romero because Romero had

previously threatened to kill him and had beaten him with a cue ball. Castro

explained that he had been warned by other pool tournament participants not to

come to the tournament because Romero was going to be there. Castro recounted

that when he saw Romero in front of the convenience store, Romero had his hand

in his pocket and that he kept trying to reach into his pocket even after Castro

knocked him to the ground. Castro testified that he kicked Romero's hands to keep

him from reaching into his pocket. The homicide detectives did not recover any

weapons from Romero, only a cell phone.
                                     Charge Error

  I.     Standard of Review

        Both of Velez's issues complain that the trial court erred in refusing to
  submit tendered instructions to the jury. In analyzing ajury-charge issue, we first
  must decide if error exists. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim.
 App. 1984) (op. on reh'g); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—
 Houston [1st Dist.] 2009, pet. refd); see Ngo v. State, 175 S.W.Sd 738, 743 (Tex.
 Crim. App. 2005) (explaining that preservation of charge error does not become
 issue until court determines that harm exists); see also Warner v. State, 245 S.W.3d
 458, 461 (Tex. Crim. App. 2008); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
 App. 1996). When, as here, the appellant has properly preserved the claimed error
 by atimely objection to the charge, the conviction will require reversal "as long as
 the error is not harmless." Almanza, 686 S.W.2d at 171. The Court of Criminal
Appeals has interpreted this to mean that any harm, regardless of degree, is
sufficient to require reversal. Arline v. State, 111 S.W.2d 348, 351 (Tex. Crim.
App. 1986); see Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000)
(reversal required if error "was calculated to injure the rights of the defendant"-
that is, that defendant suffered "some harm"). In deciding whether appellant
suffered some harm, we consider: (1) the entire jury charge; (2) the state of the
evidence, including the contested issues and weight of probative evidence;
(3) counsel's argument; and (4) the whole record. Abdnor v. State, 871 S.W.2d

726, 739^10 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171. The "some

harm" test does not mandate reversal on a showing of possible harm—it requires

that the appellant establish actual harm. Medina v. State, 7 S.W.3d 633, 643 (Tex.

Crim. App. 1999). The appellate court reviews the evidence and any part of the

record as a whole that illuminates "the actual, not just theoretical, harm to the

accused." Id. at 643; Almanza, 686 S.W.2d at 174.

II.   Refusal of manslaughter instruction as lesser-included offense

      Velez first contends that the trial court committed harmful error by failing to

charge the jury with the lesser-included offense of manslaughter. •

      A.      Applicable law

      An offense qualifies as a lesser-included offense of the charged offense if:

      (l)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. Ann. art. 37.09 (West 2006):
          We employ a two-pronged test in determining whether a defendant is
   entitledto an instruction on alesser-included offense. See Sweedy. State, 351
   S.W,3d 63, 67 (Tex. Crim. App. 2011), Exparte Watson, 306 S.W.3d 259, 262-^3
   (Tex. Crim. App. 2009), see also Hall y. State, 225 S.W.3d 524, 535-36 (Tex.
   Crim. App. 2007). The first prong ofthe test requires the court to use the "cognate
   Pleadings" approach to determine if an offense is alesser-included offense of
  another offense. See Watson, 306 S.W.3d at 271. The first prong ,s met if the
  indictment for the greater-inclusive offense either: "(1) alleges all of the elements
  of the lesser-included offense, or (2) alleges elements plus facts (including
  descriptive averments, such as non-statutory manner and means, that are alleged
  for purposes of providing notice) from which all of the elements of the lesser-
 included offense may be deduced." Id. at 273. This is aquestion of law, and „
 does not depend on the evidence to be produced at trial, free v. State, 333 S.W.3d
 140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535.
        ThC Sta,Ut0ry distinction between mu^nd manslaUfihter ,s that mi|nter
 requires adefendant to have intended to carious bodily injury and to have
committed an act clearly togrou^uman^^                             the death of „
^la^hterj Compare Tex. PenalCodeAnn. §§ 19.02(b)(1) &(2) (West 2011)
(providing, ,n pertinent part, that aperson commits 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") with id. § 19.04 (providing that a person commits manslaughter "if

he recklessly causes the death of an individual"). The Court of Criminal Appeals

has determined that manslaughter is a lesser-included offense of murder under

section 19.02(b)(2) of the Penal Code, the statutory basis for Velez's indictment.

See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Accordingly,

Velez's request meets the first prong.

      A defendant is entitled to a requested instruction on a lesser-included offense

when some evidence in the record would permit a jury rationally to find that if the

defendant is guilty, he is guilty only of the lesser-included offense. Hall, 225

S.W.3d at 536 (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

1994)). "The credibility of the evidence, and whether it conflicts with other

evidence, must not be considered in deciding whether the charge on the lesser-

included offense should be given." Dobbins,v. State, 228 S.W.3d 761, 768 (Tex.

App.—Houston [14th Dist.] 2007, pet. dism'd) (citing Saunders v. State, 840

S.W.2d 390, 391 (Tex. Crim. App. 1992)). Anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a charge of a lesser-included

offense, but it is not enough that the jury may disbelieve crucial evidence
  pertaining to the greater offense. Hall, 225 S.W.3d at 536; Skinner v. State, 956
  S.W.2d 532, 543 (Tex. Crim; App. 1997).
        For a manslaughter instruction to be proper, the record therefore must
  contain some affirmative evidence from which a rational jury could infer that
 Velez was aware but consciously disregarded asubstantial and unjustifiable risk
 that Romero's death would occur as aresult ofhis conduct: See Tex. Penal Code
 ANN. §6.03(c) (West 2011) (defining "reckless"); Cavazos, 382 S.W.3d at 385.
       B.     Analysis

       Velezreliesmi the excerpt of Castro's testimony from Castro's earlier trial
 ^J^^*^^                                              instruction' Velez points to:
 ('} Casf°'s testimony that neither he, Vele^CTCrisanto used weapons in the
 attack and Castro tried to keep Romero from reacWigmtohis pockets because he
 fe^red_thatjWro had aweapon, (2) Crisanto's testimony that he did not plan to
attack Romero and ditnoHnten^tojermu^^^
Romero did not_appear mortally wounded because_he_dfedfrom internal injuries
rather than external, observable ones.

      Nothing ,n the record suggests that Castro communicated his fears about
Romero carrying aweapon to Velez. Castro conceded that he did not tell Velez
that Romero might have agun or aknife. Further, Castro did not ask Velez or
Crisanto to help with the assault; they simply joined in. The three men easily
could have overpowered Romero and taken any weapon from him, but they did not

attempt to do so: instead, the video reveals that Crisanto kicked Romero in the

head while Velez kicked him in the abdomen. More important, the men continued

to assault Romero even after Romero stopped resisting, until he became

unconscious.    No affirmative evidence in the record supports a reasonable

inference that Velez did not intend to commit serious bodily injury as he repeatedly

kicked Romero with sufficient force to break multiple ribs and mortally wound

him. See Tex. Penal Code Ann. § 19.04; cf. id. § 19.02(b)(2) (providing that

person commits murder if he "intends to cause serious bodily injury and commits

an act clearly dangerous to human life that causes the 'death, of an individual").

The record does not permit a rational finding that Velez is guilty only of

manslaughter. See Hall, 225 S.W.3d at 536. We therefore conclude the trial court

did not err in denying Velez's request for a manslaughter instruction.

   C   Refusal of self-defense instruction

       In his second issue, Velez contends that the trial court erred in refusing to

submit his requested jury instruction pursuant to Texas Penal Code section 9.04,

relating to self-defense. We review a trial court's denial of a request to include an

instruction on a defensive issue in the charge for an abuse of discretion, and we

view the evidence in the light most favorable to the defendant's requested

submission. See Bujkin v. State, 207 S.W.3d 779, 782 (Tex, Crim. App. 2006);



                                         10
  Love v. State, 199 S.W.3d 447, 455 (Tex. App.-Houston [1st Dist.] 2006, pet.
  refd).         .

        Velez again relies on Castro's testimony to support his request for aself-
  defense instruction. According to Velez, the evidence of Castro's fear that
  Romero was reaching for aweapon also raises afactual issue concerning whether
  Velez was acting in self-defense.

        We disagree. "[A] defensive instruction is only appropriate when the
 defendant's defensive evidence essentially admits to every element of the offense
 including the culpable mental state, but interposes the justification to excuse the
 otherwise criminal conduct." Shaw, 243 S.W.3d at 659; see Ford v. State, 112
 S.W.3d 788, 794 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (explaining that
 assertion ofdefense is inconsistent with denial ofcharged conduct).
       Velez denied committing murder. He did not proffer any evidence admitting
to the elements ofthe offense, and no evidence supports areasonable inference that
Velez reasonably believed that Romero would cause Velez serious bodily injury.
Accordingly, the trial court properly concluded that Velez was not entitled to the
requested jury instruction on self-defense. See Lavern v. State, 48 S.W.3d 356,
360 (Tex. App.-Houston [14th Dist.] 2001, pet. refd) (holding that ifno evidence
suggests accused responded to, or believed he was responding to use of unlawful
force, he is not entitled to self-defense instruction).

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