                         NUMBER 13-11-00523-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JUSTIN RHYS SCEPANSKI,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 332nd District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
             Before Justices Benavides, Perkes, and Longoria
                 Memorandum Opinion by Justice Perkes
      Appellant Justin Rhys Scepanski appeals his conviction of murder, a first-degree

felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw through 2013 3d C.S.).

Appellant pleaded not guilty to the indicted offense of capital murder in the course of

robbery, but a jury found him guilty of the lesser-included offense of murder and assessed
punishment at forty-five years’ imprisonment in the Texas Department of Criminal Justice,

Institutional Division. By five issues, appellant argues: (1) he was entitled to lesser-

included instructions on manslaughter and criminally negligent homicide; (2) the trial court

should have disallowed the testimony of untimely-designated witnesses; (3) the trial court

improperly admitted extraneous-act evidence during the punishment hearing; (4) the

State’s punishment-hearing argument was improper; and (5) the trial court improperly

omitted an extraneous-act instruction in the punishment jury charge. Because we hold

appellant was entitled to a lesser-included instruction on manslaughter, we reverse and

remand.

                                           I. BACKGROUND

        Baldemar Villarreal was shot once in the upper abdomen from close range. He

was outside his house, and it was nighttime. Inside his house, his wife 1 Kristina Guerra

heard the gunshot followed by the sound of “a vehicle peeling out.” Guerra went outside,

where she saw her husband stumbling toward the house. He told her to call the police

because he had been shot. Guerra immediately called the police.

        Guerra returned to Villarreal after calling the police. Villarreal asked Guerra to

retrieve his nine-millimeter handgun, which was laying “by the street” near the front gate

to Villarreal’s property. Guerra retrieved the gun, took it inside the house, placed it in a

gun case, and put the gun case in a bedroom closet.




        1 At trial, most witnesses referred to Guerra as Villarreal’s wife, and Guerra herself stated Villarreal

was her husband. Elsewhere in the record, however, she was identified as Villarreal’s girlfriend, and the
State said she was Villarreal’s common-law wife in its opening argument.
                                                       2
       The police officers arrived and found a nine-millimeter shell casing and Villarreal’s

cellular telephone on the road near the front gate to Villarreal’s property. Villarreal lay

recumbent near the staircase leading to the front door of Villarreal’s house.            The

responding officers observed a “stack” of currency lying near the stairs.

       Deputy Jose Contreras was one of the first officers to arrive. Deputy Contreras

talked to Villarreal, who told Deputy Contreras what happened: “[Villarreal] told me

[Deputy Contreras] that his friend Justin had called him and wanted to hang out with him.

So he went outside—he went outside and Justin had arrived, that Justin had grabbed him

by the neck and then shot him the stomach area.”           Deputy Contreras testified that

Villarreal explained he had been shot “on the roadway” by a passenger of “like a black

Jimmy” who grabbed Villarreal by the neck and demanded, “[G]ive me your money.”

According to Deputy Contreras, Villarreal “kept telling me, ‘It was Justin. It’s Justin[.]’”

       Sergeant Miguel Davila of the Hidalgo County Sheriff’s Office also talked to

Villarreal, and Sergeant Davila’s recollection of what Villarreal said closely paralleled

Deputy Conteras’s testimony:

       He [Villarreal] stated he had gotten a phone call from a friend named Justin,
       that he was in the front of the—his property by the roadway and for him to
       go over there. He walked over there. He sees Justin and he’s a
       passenger to—he—as he said, a dark colored SUV, like a Jimmy, I believe
       he said. He says he was a passenger. When he walked up to him, I
       guess Justin told him—he goes, [“]Give me all your money[”], and he took
       a shot at him.

Deputy Julio Castenada also testified Villarreal “said a man by the name of Justin shot

him.” Guerra confirmed Villarreal received a phone call and went outside his house

about five minutes before he was shot, and Guerra testified Villarreal told her also that a


                                              3
man named Justin shot him from the passenger side of a dark colored vehicle. Guerra

said she had never heard of appellant before then. Villarreal died later, and forensic

pathologist Norma Jean Farley testified that the gunshot wound to the upper abdomen

caused his death.

       Pursuant to Guerra’s consent, responding officers searched Villarreal’s house.

Deputy Castenada found the gun case in the bedroom closet and seized the nine-

millimeter handgun from the case. Before removing the gun from the premises, Deputy

Castenada “cleared” the weapon, meaning he removed the handgun’s magazine and the

cartridge he found “chambered,” which Deputy Castenada defined as a gun with a

cartridge that has been transferred from a handgun’s magazine to the gun’s barrel—

“ready to be fired.” 2     Deputy Castenada affirmed that one chambers a cartridge by

cocking the firearm.3 Guerra testified that when she retrieved the gun from the street

and placed it in the gun case, she did not chamber it.

       On the day after the shooting, lead investigator Leonor Garcia, who understood

that the primary suspect was named Justin, dialed phone numbers another officer

retrieved from Villarreal’s cell phone. A man named Justin answered one of the calls,

and when Investigator Garcia asked, “What Justin[?],” the man responded, “Justin


         2 Edward Wallace, a forensic scientist supervisor in the firearms section of the Bexar County

criminal investigation laboratory, explained in more detail:

       Chambering a cartridge or a bullet is when you place an unfired round of ammunition into
       the chamber of the gun either from the magazine by pulling the slide back, in the case of a
       pistol, and allowing the slide to go forward to feed the cartridge into the chamber or by
       pulling the slide back and manually loading a round into the chamber of the gun without a
       magazine being present.

       3 Wallace confirmed this, noting, “You can cock a gun without chambering a round; but, yes, you
could use that term [‘cocking’] to describe the process.”
                                                   4
Scepanski.” Investigator Garcia investigated appellant and found multiple residences

associated with him. Investigators ultimately located appellant traveling in a vehicle with

two friends and apprehended him. After being properly Mirandized, appellant provided

Investigator Garcia with a statement.

       In appellant’s statement, appellant acknowledged shooting Villarreal, but appellant

claimed it happened as he and Villarreal struggled for a handgun.            According to

appellant’s statement, appellant had attended a party earlier that night, which his friend

Rosa Perales hosted. Appellant said he left the party on foot and began walking home

when a man named Rex, driving a black truck, stopped appellant and asked if appellant

“had anymore weed to make money.” Appellant responded he did not and asked Rex

where appellant could get some Xanax “because a guy that I know as Balla [Villarreal]

wanted to buy some.” Rex said he knew where appellant could get some Xanax, and

appellant called Villarreal. The following excerpt is from appellant’s statement:

       I was on the phone with Balla and he was giving me directions to his house.
       Rex was driving his truck. Balla[] told me that he was going to be standing
       outside his property . . . . We pull up on the roadway facing south. Balla
       goes up to my window which is the passenger window and asked me for
       some Xanax Bars. I asked Rex for the bars and he say’s [sic] he’s not here
       yet, referring to the guy who was suppose[d] to bring them. Rex [] says will
       be right back and goes south about 3 blocks and turns around and pass
       Balla’s house. We pull up again and face south. Balla comes to my
       window and this time I see he has a black pistol in the front of his waist. I
       can see the pistol because his zip up hoodie (sweater) is opened showing
       off his gun. Balla has his right hand near his waist line. When he gets to
       my window everything happens. Balla pulls out his pistol slow enough that
       I can hear a cock. I hear Rex say he’s got a gun. I turn and see Balla
       pointing his gun at me. I know there a [sic] gun between Rex and I and I
       picked it up. I did not know if it was loaded or not. Balla tries taking the
       gun that I have and we began to struggle while I am inside the truck during
       which time I shoot Balla. I did not know where I had shot him. . . . I see
       Balla fall down on the spot and he gets back again. I see that Balla still

                                            5
        has his gun in his hand and I was afraid he was going to shoot so we took
        off. I got to see Balla walking into his property and I thought everything
        was good.

According to appellant’s statement, Rex took appellant back to the party and left, taking

the gun appellant had used with him. Appellant emphasized, “I did not mean to shoot

Balla[;] it was in self[-]defense.” Appellant also said he had never met Villarreal before

that night and had only one conversation with him on the telephone. Pursuant to the

State’s motion, the trial court admitted appellant’s statement into evidence.

        Rosa Perales, who described herself as “a good friend” of appellant, hosted the

party appellant attended on the night Villarreal was shot. Perales testified that appellant

had informed her that he was going to Villarreal’s house to sell Xanax bars. But appellant

told Perales, “We didn’t have any bars, we were going to play along until he showed us

the money and then we were going to jack him up.”

        The gun used to shoot Villarreal was never recovered. Officers did find Rex’s

black GMC Sonoma pickup truck. On the outside of the passenger door, investigators

recovered one particle characteristic of gunshot residue and two particles indicative of

gunshot residue.4 There was no gunshot residue on the inside of the door.

                    II. LESSER-INCLUDED OFFENSE INSTRUCTION

        By his first issue, appellant argues the trial court reversibly erred by denying his

request to include the lesser-included offenses of manslaughter and criminally negligent

homicide in the jury charge.



       4 Phillip Stout of the trace evidence section of the Texas Department of Public Safety Crime

Laboratory explained that a characteristic particle has the “three component particles”—“lead, barium and
antimony”—of gunshot residue, but an indicative particle has only two of the three elements.
                                                   6
A.     Applicable Law

       The determination of whether the trial court should give a lesser-included offense

instruction requested by a defendant requires a two-step analysis: “(1) Is the requested

charge for a lesser-included offense of the charged offense? (2) Is there trial evidence

that supports giving the instruction to the jury?” Rice v. State, 333 S.W.3d 140, 144 (Tex.

Crim. App. 2011). We review the first step de novo. See id. Relevant here, the Texas

Code of Criminal Procedure provides that an offense is a lesser-included if “it differs from

the offense charged only in respect that a less culpable mental state suffices to establish

its commission.” TEX. CODE CRIM. PROC. ANN. art. 37.09(3) (West, Westlaw through 2013

3d C.S.).

       In applying the second step, we look to see if there is some evidence in the record

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

the lesser-included offense. Rice, 333 S.W.3d at 145. “In applying the second prong

of the test, the appellate court must examine the entire record instead of plucking certain

evidence from the record and examining it in a vacuum.” Enriquez v. State, 21 S.W.3d

277, 278 (Tex. Crim. App. 2000) (en banc) (citing Ramos v. State, 865 S.W.2d 463, 465

(Tex. Crim. App. 1993) (en banc)); see Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex.

Crim. App. 2000) (en banc). “We consider all of the evidence admitted at trial, not just

the evidence presented by the defendant.” Goad v. State, 354 S.W.3d 443, 446 (Tex.

Crim. App. 2011) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)

(en banc)).




                                               7
        “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.” Cavazos v.

State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012) (citing Bell v. State, 693 S.W.2d 434,

442 (Tex. Crim. App. 1985) (en banc)). The evidence must establish the lesser-included

offense as a valid, rational alternative to the charged offense. Id. at 385; Rice, 333

S.W.3d at 145.        “‘[R]egardless of the strength or weakness of the evidence, if the

evidence raises the issue that the defendant was guilty only of the lesser offense, then

the charge must be given.’” Cavazos, 382 S.W.3d at 384–85 (quoting Saunders v. State,

840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (en banc)). “[W]e may not consider ‘the

credibility of the evidence and whether it conflicts with other evidence or is controverted.’”

Goad, 354 S.W.3d. at 446–47 (quoting Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim.

App. 1994) (en banc)). Anything more than a scintilla of evidence is sufficient to entitle

a defendant to a lesser-included charge. Id. at 446. “The second step is a question of

fact and is based on the evidence presented at trial.” Cavazos, 382 S.W.3d at 383.

        A person acts intentionally, or with intent, with respect to the result of his conduct

when it is his conscious objective or desire to cause the result.5 TEX. PENAL CODE ANN.

§ 6.03(a) (West, Westlaw through 2013 3d C.S.). A person acts knowingly, or with

knowledge, with respect to the result of his conduct when he is aware that his conduct is

reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly, or is



         5 Murder is a result-of-conduct offense, Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App.

2011); Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) (en banc), and we therefore cite
to the provisions of section 6.03 of the penal code that define mental states for result-oriented offenses.
                                                    8
reckless, with respect to the result of his conduct when he is aware of but consciously

disregards a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c).

The risk must be of such a nature and degree that its disregard constitutes a gross

deviation from the standard of care that an ordinary person would exercise under all the

circumstances as viewed from the actor’s standpoint. Id. A person acts with criminal

negligence, or is criminally negligent, with respect to the result of his conduct when he

ought to be aware of a substantial and unjustifiable risk that the result will occur. Id. §

6.03(d). The risk must be of such a nature and degree that the failure to perceive it

constitutes a gross deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the actor’s standpoint. Id.

B.    Discussion

      1.       Manslaughter and Criminally Negligent Homicide are Lesser-Included
               Offenses of Section 19.02(b)(1) Murder.

      In this case, manslaughter and negligent homicide are lesser-included offenses of

murder, and the first prong of the test is satisfied. See Rice, 333 S.W.3d at 144. A

grand jury indicted appellant for intentionally causing the death of Villarreal, a murder

offense under Texas Penal Code section 19.02(b)(1). See TEX. PENAL CODE ANN. §

19.02(b)(1).    The only difference between murder under section 19.02(b)(1) and

manslaughter and criminally negligent homicide is that manslaughter has the lesser

mental state of recklessness and criminally negligent homicide involves the lesser mental

state of criminal negligence. Compare id., with TEX. PENAL CODE ANN. § 19.04 (West,

Westlaw through 2013 3d C.S.) (manslaughter), and TEX. PENAL CODE ANN. § 19.05

(West, Westlaw through 2013 3d C.S.) (criminally negligent homicide); see TEX. PENAL

                                            9
CODE ANN. § 6.02(d) (West, Westlaw through 2013 3d C.S.) (outlining four culpable

mental states “from highest to lowest”). Because manslaughter and criminally negligent

homicide differ from murder in section 19.02(b)(1) only in that a less culpable mental state

suffices to establish their commission, they are lesser-included offenses of section

19.02(b)(1) murder. See TEX. CODE CRIM. PROC. ANN. art. 37.09(3); Arnold v. State, 234

S.W.3d 664, 671 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“[I]t is well-established

that manslaughter is a lesser-included offense of murder) (citing Girdy v. State, 213

S.W.3d 315, 318–19 (Tex. Crim. App. 2006); Moore v. State, 969 S.W.2d 4, 9 (Tex. Crim.

App. 1998) (en banc))); see also Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim.

App. 1995) (en banc) (holding negligent homicide is a lesser-included offense of murder).

       2.     The Evidence Supported an Instruction on Manslaughter.

       Appellant’s statement that he shot Villarreal in a struggle for a weapon was some

evidence of recklessness.      First, appellant’s statement supported an inference he

understood the risk associated with firearms, see TEX. PENAL CODE ANN. § 6.03(c)

(defining recklessness); he explained that his decision to grab a gun was prompted by

Villarreal allegedly pointing a gun at him.       This indicated appellant appreciated the

substantial risk the firearm posed. See Sadler v. State, 728 S.W.2d 829, 831 (Tex.

App.—Dallas 1987, no pet.) (holding that the defendant’s attempt to gain possession of

a pistol because he was afraid the other person would use it to shoot him manifested an

awareness “of the risk of injury or death involved in the ensuing struggle over the pistol”);

see also Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985) (en banc) (noting




                                             10
that evidence showing a defendant’s appreciation of a gun’s potential for injury indicates

the person is aware of a risk created by using it).

        Second, appellant disregarded the risk by seizing the gun, but appellant’s

statement expressly disclaimed he intended to shoot.                       Instead, appellant said the

shooting occurred while he and Villarreal struggled for the gun. This explanation is

similar to one the court of criminal appeals concluded warranted a jury instruction on

recklessness: “[A]ppellant testified that he did not intend to shoot the complainant and

that the actual discharge of the gun was accidental, occurring during a struggle between

appellant and the complainant. These are precisely the circumstances under which a

charge on reckless conduct should be given.” Hayes v. State, 728 S.W.2d 804, 810

(Tex. Crim. App. 1987) (op. on reh’g) (en banc).                   Following the Hayes holding, we

conclude appellant’s version of events constituted some evidence supporting an

instruction on recklessness. See Hayes, 728 S.W.2d at 810; Arnold, 234 S.W.3d at 672

(“[C]ourts have typically found that a manslaughter instruction was required based on

some evidence that the gun discharged accidentally or that the defendant only intended

to frighten the complainant.”).6



         6 We recognize appellant’s statement arguably supports a self-defense claim, which is

incompatible with recklessness. See Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim. App. 2011). In
his statement, appellant expressly uses the term self-defense: “I did not mean to shoot Balla[;] it was in
self[-]defense.” A review of appellant’s whole statement, however, shows appellant does not use the term
“self-defense” as a concession of intentional or knowing conduct he characterizes as justified; appellant is
disavowing an intent to kill, insisting the gun discharged during a struggle—the quintessential situation
involving recklessness. See Hayes v. State, 728 S.W.2d 804, 810 (Tex. Crim. App. 1987) (op. on reh’g)
(en banc). Thus, although the jury charge included a self-defense instruction, it failed to provide the jury
with the full array of options based on the trial evidence; the jury charge limited the jury to finding that
appellant’s conduct was either fully justified and warranted acquittal or unjustified as an intentional or
knowing killing, omitting a potential finding that appellant’s conduct was unjustified as reckless. The
inclusion of a manslaughter instruction would not have precluded the self-defense instruction, Alonzo, 353
S.W.3d at 781–82, allowing the jury to decide whether appellant’s act was justified or unjustified as reckless.
                                                     11
        Third, the assertions in appellant’s statement are not so isolated that only a review

of them in a vacuum supports the lesser-included instruction.                   The State compares

appellant’s statement to the Cavazos defendant’s denial of intent, which the court of

criminal appeals held insufficient for a manslaughter instruction. See Cavazos, 382

S.W.3d at 385. The Cavazos ruling turned on the specific facts of that case: “Pulling

out a gun, pointing at someone, pulling the trigger twice, fleeing the scene (and the

country), and later telling a friend ‘I didn’t mean to shoot anyone’ does not rationally

support an inference that appellant acted recklessly at the moment he fired the shots.”

Id. Unlike the Cavazos defendant, appellant’s statement did not present a version of

events that was incompatible with all the evidence. There were no trial witnesses who

witnessed the shooting. As is often the case, the fact finder had to infer appellant’s

mental state from the evidence. Most of the evidence simply proved a shooting occurred

without shedding light on the circumstances of the shooting. Appellant never contested

shooting Villarreal.      Thus, gunshot residue on the passenger door of Rex’s truck,

appellant’s phone number on Villarreal’s cellular telephone, a shell casing at the scene of

the shooting, and even Villarreal’s statements that appellant shot him are pieces of

evidence that supported a shooting done recklessly, intentionally, or knowingly. None of

that evidence was inconsistent with appellant’s statement. Appellant’s mental state at

the time of the shooting had to be gleaned primarily from Villarreal’s words to the

responding officers or appellant’s statement—the two competing versions of events,

neither of which were perfect.7


        7   The incompleteness of appellant’s statement has already been discussed. Testimony of
Villarreal’s statements to the responding officers also contained gaps. For example, both officers claimed
                                                   12
        In appellant’s statement, appellant alleged he heard Villarreal cock his gun.

Police officers found Villarreal’s gun with a bullet chambered, i.e. the gun had been

cocked, and Guerra, who had retrieved the gun from the road, insisted at trial that she did

not cock the gun. This evidence arguably supported appellant’s version; it certainly did

not undermine appellant’s statement. Appellant said Villarreal stood up and walked into

his property after the shooting, which Guerra’s testimony and Villarreal’s position confirm.

        This is not to say appellant’s version of events was without competition. Contrary

to appellant’s characterization of simply responding to an unexpected threat, Deputy

Contreras and Sergeant Davila testified Villarreal told them appellant demanded his

money before shooting him, and Perales testified appellant told her before going to meet

Villarreal he planned to “jack him up.” Our inquiry, however, does not consider the

credibility of appellant’s statement or whether other evidence controverts it; anything more

than a scintilla of evidence, regardless of however weak it is, entitles him to a lesser-

included charge. See Cavazos, 382 S.W.3d at 384–85; Goad, 354 S.W.3d at 446–47.

We hold appellant’s statement satisfies that low threshold.

        In reviewing the entire record, we also note that defense counsel relied heavily on

appellant’s statement during closing argument.8 Defense had no opening argument, and



Villarreal called appellant a friend, but Guerra testified she never heard of appellant, and she noted Villarreal
only carried his gun to drug transactions at which Villarreal did not know the buyer. Appellant’s statement
comported with Guerra’s testimony; appellant stated “I never have met with Balla[,] we only had a
conversation on the phone.” More importantly, testimony that Villarreal said appellant demanded
Villarreal’s money was the main evidence supporting an intentional or knowing killing or killing in the course
of a robbery, but, contrary to the purposes of a robbery, officers found a “stack” of currency near Villarreal,
which was not where Villarreal, according to any statement or evidence, was shot. Appellant did not enter
Villarreal’s house, and there was no evidence he took any of Villarreal’s personal property.

        8   For example, the following excerpt is from defense counsel’s closing argument:

                                                      13
appellant did not testify, making defense counsel’s closing argument the only time the

jury heard the defense’s narrative.            Based on defense counsel’s reliance on the

statement and the fact that the evidence can be construed to support appellant’s

statement, the statement is not the type of evidence that only supports the lesser-included

offense if plucked from the record and reviewed in a vacuum. Cf. Cavazos, 382 S.W.3d

at 385–86; Enriquez, 21 S.W.3d at 278.

C.     Harm

       The erroneous refusal to give a requested instruction on a lesser-included offense

is charge error subject to an Almanza harm analysis. See Saunders, 840 S.W.2d at 392;

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

Under that analysis, reversal is required if the error resulted in some harm to the accused,

“some” meaning “any.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en

banc); Almanza, 686 S.W.2d at 171. The court of criminal appeals has “routinely found

‘some’ harm, and therefore reversed, when the trial court has failed to submit a lesser



       We know that Mr. Scepanski saw [Villarreal’s] hand on the gun and that he pulled it and
       cocked it.

                At that time, he pointed the gun. Mr. Scepanski panicked, reached for the gun
       that he didn’t even know was loaded or not loaded. And it happened in an instant. It
       wasn’t a matter of like the prosecutor wants you to believe that—did he have time to think,
       did he have time to do that or this. It was reactionary. He was afraid. He was
       intimidated. He was fearful for his life, so he pulls the gun surprising Mr. Villarreal.

               Mr. Villarreal is surprised that, oh, this person can defend himself, drops his own
       weapon to the ground, wrestles with Mr. Scepanski for the weapon that he is now pointing
       and trying to defend himself with, and the weapon goes off shooting Mr. Villarreal in the
       chest area.

         We recognize but are unconcerned that defense counsel argued self-defense; the self-defense
argument was reasonable because by the time of closing argument, the trial court had already foreclosed
the jury’s consideration of manslaughter by denying appellant’s requested instruction.

                                                  14
included offense that was requested and raised by the evidence—at least where that

failure left the jury with the sole option either to convict the defendant of the greater

offense or acquit him.” Saunders, 913 S.W.2d at 571. When, however, a trial court

submits one lesser-included offense raised by the evidence but declines to submit

another that the evidence also raised, as is the case here:

      the jury’s options [are] not limited to conviction of the greater offense or
      acquittal. Under these circumstances the Beck [v. Alabama, 447 U.S. 625,
      634 (1980)] risk that the jury will convict of the greater offense despite its
      reasonable doubt is not so apparent. There is an available compromise.
      It is at least arguable that a jury that believed the defendant committed an
      uncharged lesser included offense, but unwilling to acquit him of all
      wrongdoing, and therefore inclined to compromise, would opt for a lesser
      included offense that was submitted rather than convict him of the greater
      offense.

Id. at 572. In Saunders, because the jury convicted the defendant of the greater offense

rather than under the lesser-included charge that the trial court had submitted, the

Saunders court concluded that the error of not including the refused lesser-included

offense was harmless. Id. (“That the jury here did not [opt for the submitted lesser-

included offense] may thus indicate that the sort of ‘harm’ contemplated by Beck did not

occur in this cause.”), 574 (“[B]ecause the jury did not opt to convict appellant of

involuntary manslaughter, failure to authorize conviction for negligent homicide was

harmless under Almanza and Arline.”).

      Unlike the Saunders jury, the jury in this case convicted appellant of the submitted

lesser-included offense. According to the jury charge, the jury was to convict appellant

of murder rather than capital murder if it had reasonable doubt appellant intentionally

caused Villarreal’s death or had reasonable doubt the killing occurred during the course


                                           15
of a robbery. We cannot tell by the jury’s verdict of murder rather than capital murder

whether it had reasonable doubt appellant acted intentionally, was committing a robbery,

or both. Because the jury returned a verdict on the submitted lesser-included offense,

the “Beck risk” re-emerges, and it is not apparent, as it was in Saunders, that the jury

would have disregarded the requested lesser-included offense.              The absence of

appellant’s requested manslaughter instruction left the jury with the sole option of

convicting him of murder or acquitting him, either under self-defense or evidentiary

concerns. In such circumstances, the finding of harm is essentially automatic because

the jury was denied the opportunity to convict the defendant of the lesser offense. See

id. at 571; Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d).

          3.    The Evidence Did Not Support an Instruction on Criminally Negligent
                Homicide.

          Although criminally negligent homicide is a lesser-included offense, there was no

evidence, including appellant’s statement, that appellant, in firing the weapon, was

unaware of a substantial and unjustifiable risk. See TEX. PENAL CODE ANN. § 6.03(d)

(defining criminal negligence). Because the evidence did not support an instruction on

criminally negligent homicide, appellant was not entitled to the instruction. See Rice, 333

S.W.3d at 145.

D.        Summary

          Anything more than a scintilla of evidence supporting a lesser-included instruction

entitles a defendant to the instruction, regardless of whether the evidence is weak,

impeached, or contradicted. See Cavazos, 382 S.W.3d at 383; Goad, 354 S.W.3d at

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446–47. Here, appellant’s statement, on which the defense heavily relied, was sufficient

evidence to meet the low threshold, and the trial court’s error of not including the

instruction harmed appellant. Accordingly, we sustain appellant’s first issue. Having

sustained the issue, we need not address appellant’s other issues on appeal. See TEX.

R. APP. P. 47.1.

                                  III. CONCLUSION

       We reverse the trial court’s judgment and remand the case to the trial court.



                                                   GREGORY T. PERKES
                                                   Justice

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

Delivered and filed the 21st
day of August, 2014.




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