                                                                                   ACCEPTED
                                                                               08-17-00106-CR
                             08-17-00106-CR                        EIGHTH COURT OF APPEALS
                                                                              EL PASO, TEXAS
                                                                             5/29/2018 1:34 PM
                                                                            DENISE PACHECO
                                                                                        CLERK

                       66   NO. 08-17-00106-CR

                   IN THE COURT OF APPEALS                    FILED IN
                                                       8th COURT OF APPEALS
                   EIGHTH DISTRICT OF TEXAS                EL PASO, TEXAS
                                                       5/29/2018 1:34:19 PM
                                                           DENISE PACHECO
                                                               Clerk
LEO MARTINEZ                                               APPELLANT

V.

THE STATE OF TEXAS                                           APPELLEE


                        THE STATE’S BRIEF



           ON APPEAL FROM CAUSE NUMBER 20120D01991
     IN THE 409TH DISTRICT COURT OF EL PASO COUNTY, TEXAS



                                JAIME ESPARZA
                                DISTRICT ATTORNEY
                                34th JUDICIAL DISTRICT

                                REBECCA ESTRADA QUINN
                                ASST. DISTRICT ATTORNEY
                                DISTRICT ATTORNEY’S OFFICE
                                EL PASO COUNTY COURTHOUSE
                                500 E. SAN ANTONIO
                                EL PASO, TEXAS 79901
                                (915) 546-2059 ext. 4320
                                FAX (915) 533-5520
                                E-MAIL: rebquinn@epcounty.com
                                SBN 00787444
                                ATTORNEYS FOR THE STATE

               The State does not request oral argument.
                        TABLE OF CONTENTS

INDEX OF AUTHORITIES                                                   iii-iv

STATEMENT OF THE CASE                                                      v

STATEMENT OF FACTS                                                     1-10

SUMMARY OF THE STATE’S ARGUMENTS                                      11-12

STATE’S REPLY TO APPELLANT’S SOLE ISSUE PRESENTED

    Martinez failed to show that the trial court erred by refusing his 13-26
    request to provide the jury with an instruction on the lesser-
    included offense of manslaughter because the trial evidence did
    not support giving such an instruction where, other than his
    assertions that he had not intended to murder his mother and that
    he accidentally shot her, there was no evidence in the record that
    showed that at the time that he fired the gun, he was aware of, but
    consciously disregarded, a substantial and unjustifiable risk that
    his mother would die as a result of his conduct. Moreover, the
    evidence showed that he intentionally and knowingly caused his
    mother’s death when, after arguing with her over his drinking, he
    pointed a cocked and loaded gun at her and shot her in the face as
    she turned to say something to him.

PRAYER                                                                   27

SIGNATURES                                                               27

CERTIFICATE OF COMPLIANCE                                                27

CERTIFICATE OF SERVICE                                                   27




                                    ii
                                    INDEX OF AUTHORITIES

FEDERAL CASES

Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ....................................................................... 6

STATE CASES

Arnold v. State, 234 S.W.3d 664
(Tex.App.-Houston [14th Dist.] 2007, no pet.)......................................................... 18

Brown v. State, No. 04-12-00813-CR, 2014 WL 3747234
(Tex.App.-San Antonio July 30, 2014, no pet.)
(not designated for publication) .........................................................................23, 25

Cantu v. State, No. 04-07-00330-CR, 2008 WL 372506
(Tex.App.-San Antonio Aug. 20, 2008, pet. ref’d)
(not designated for publication) ............................................................................... 24

Cavazos v. State, 382 S.W.3d 377 (Tex.Crim.App. 2012) ....................15, 16, 20, 23

Gilbert v. State, 196 S.W.3d 163
(Tex.App.-Houston [1st Dist.] 2005, pet. ref’d) .................................................19, 26

Goad v. State, 354 S.W.3d 443 (Tex.Crim.App. 2011) ........................................... 14

Godsey v. State, 719 S.W.2d 578 (Tex.Crim.App. 1986)............................ 18, 20, 21

Hall v. State, 225 S.W.3d 524 (Tex.Crim.App. 2007) ............................................ 15

Hampton v. State, 109 S.W.3d 437 (Tex.Crim.App. 2003) ..................................... 15

Hayes v. State, 728 S.W.2d 804 (Tex.Crim.App. 1987).......................................... 19

Keller v. State, No. 03-13-00501-CR, 2014 WL 6617143
(Tex.App.-Austin Nov. 20, 2014, no pet.)
(not designated for publication) ............................................................................... 24

                                                        iii
Mathis v. State, 67 S.W.3d 918 (Tex.Crim.App. 2002) .......................................... 22

Sanchez v. State, No. 05-05-01118-CR, 2006 WL 2709528
(Tex.App.-Dallas June 6, 2007, pet. ref’d)
(not designated for publication) ............................................................................... 26

Scepanski v. State, No. 13-11-00523-CR, 2014 WL 4161453
(Tex.App.-Corpus Christ Aug. 21, 2014, no pet.)
(not designated for publication) ............................................................................... 19

Shannon v. State, No. 08-13-00320-CR, 2015 WL 6394922
(Tex.App.-El Paso Oct. 21, 2015, no pet.)
(not designated for publication) ...................................................................16, 18, 20

STATUTES AND RULES

TEX. PENAL CODE §6.03(a) ...................................................................................... 15

TEX. PENAL CODE §19.02(b)(1) ............................................................................... 13

TEX. PENAL CODE §19.02(b)(2) ............................................................................... 13

TEX. PENAL CODE §19.04(a) .................................................................................... 15




                                                        iv
                              STATEMENT OF THE CASE


       Appellant, Leo Martinez (hereinafter Martinez), was indicted for the murder

of his mother, Hilda Gonzalez (hereinafter Gonzalez). (CR:8).1 A jury found

Martinez guilty as charged in the indictment. (RR4:56)(CR:78). Martinez elected

to have the jury assess punishment, and the jury assessed his punishment at life in

the Texas Department of Criminal Justice Institutional Division and a $10,000 fine.

(CR:91)(RR6:4). The trial court sentenced Martinez in accordance with the jury’s

verdicts. (RR6:9). Martinez filed an application for writ of habeas corpus

claiming that through no fault of his own, he had been denied the right to a direct

appeal, and the Court of Criminal Appeals ordered that he be granted the

opportunity to file an out-of-time appeal. (SRR1:5). Martinez timely filed notice

of appeal pursuant to the opinion of the Court of Criminal Appeals. (CR:124-25).




1
  Throughout this brief, references to the record will be made as follows: references to the clerk’s
record will be made as “CR” and page number, references to the originally filed reporter’s record
will be made as “RR” and volume and page number, references to the first supplemental
reporter’s record will be made as “SRR” and volume and page number, and references to
exhibits will be made as either “SX” or “DX” and exhibit number.

                                                 v
                           STATEMENT OF FACTS

      Introduction

      In 2005, one week after his high-school graduation, Martinez enlisted in the

Marines, and just three days shy of graduating from boot camp, he was

dishonorably discharged for testing positive for cocaine. (RR5:36-37). Martinez

spent the next four years in Denver living with and near his father. (RR5:39-43).

In 2007, he rekindled a high-school friendship with Stephanie Paniagua

(hereinafter Paniagua) that ultimately formed into a romantic relationship.

(RR5:39-40). After Paniagua obtained a job transfer, she moved from El Paso to

Denver to live with him, and they had a daughter. (RR5:39-40). In 2009, Martinez

was arrested for menacing, abusive language or threats, and creating danger of

violence against Paniagua. (RR5:69). Martinez and Paniagua ended their

relationship after being together for two years, and she moved to Alaska with their

daughter. (RR5:41). Martinez remained in Denver and, in 2010, was arrested for

assault against a current girlfriend. (RR5:42). In July 2011, he asked his mother if

he could return home to live with her in El Paso because he was fed up with his

abuse of alcohol and drugs. (RR5:43). Although his mother was attempting to

regroup her own life after suffering from a lupus flare-up, she took him in and

offered him support. (RR4:68), (RR5:44).




                                         1
      Once back in El Paso, Martinez was not working, but he had enrolled in

school in order to become a massage therapist. (RR5:44). He claimed that things

were going well at first, but then in September 2011, he was arrested for driving

while intoxicated (DWI). (RR5:44-45). His mother bailed him out and was very

upset with him because he had promised her that he would stop drinking and this

was his second DWI. (RR5:46). After his arrest, Martinez continued to drink

alcohol, and his relationship with his mother deteriorated because she found his

continued drinking upsetting. (RR5:47).

      The murder

      On February 5, 2012, the tension between Martinez and his mother escalated

when she, tired of his drinking, told him to leave her house. (SX134, 10:33).

Martinez began packing and, unbeknownst to his mother, decided to pack a gun

that belonged to her boyfriend, Mariano Peralta (hereinafter Peralta). (SX134,

17:25). However, his packing was interrupted when his mother suggested that they

postpone his departure due to his upcoming DWI hearing, as she was responsible

for his posted bail. (SX134, 17:39).

      Martinez then took Peralta’s gun and walked to Love’s Truck Stop, which

was about two miles from his mother’s house. (SX134, 18:24). Once he was

there, he sat down to drink a beer and watch the Super Bowl game. (SX134, 2:10).

About five minutes before the game ended, he returned to his mother’s house and



                                         2
stood outside for about half an hour “scoping” his mother’s “every move.”

(SX134, 19:57). His mother was unable to see him watching her because he was

shielded by a fence. (SX134, 20:07). Martinez eventually went inside and

approached his mother, who was sitting down doing homework. (SX134, 19:47).

He stated that she “nagged” him about his drinking, and she asked what he was

doing back, as she thought he had left for good. (SX134, 38:22). After they

argued, his mother spoke with her best friend on her cell phone, and when she

hung up and was about to call someone else, he told her that he needed to use the

phone “as a decoy to get her off the phone.” (RR5:90), (SX134, 23:24). His

mother gave him the phone and asked him not to be long. (SX134, 22:26). She

then walked into her bedroom, and he took Peralta’s gun, which he had previously

cocked and loaded, and followed her. (SX134, 23:58). When she got to her

bedroom, he was standing in the hallway, and as she turned to look at him, he shot

her in the face. (SX134, 25:05), (RR4:19). Martinez stated that when she turned

around, “she was about to say something—not no more.” (SX134, 25:05). He

claimed not to know why he shot her, but after doing so, he looked at her once and

knew that it was too late to get her any help. (SX134, 25:06).

      Martinez’s actions after the murder

      Martinez left home in Peralta’s truck and stopped at Love’s Truck Stop for

gas and to buy a 30-pack of beer. (SX134, 26:11, 26:50). He used his mother’s



                                        3
cell phone to call his younger brother, but was not able to get a hold of him.

(RR5:86). He also called a friend living in Hatch, New Mexico, and asked her if

they could meet in El Paso, as he did not want to go to her home for fear of being

caught at the border-patrol checkpoint. (SX134, 27:11). However, she was unable

to leave her home due to the late hour. (SX134, 27:40). He then called Paniagua

and was on the phone with her for close to an hour. (RR5:91), (SX134, 26:00),

(SX259).

      Paniagua was at her home in California with her daughter when she received

Martinez’s call, which was unexpected because they were not on speaking terms.

(RR3:44-45). Paniagua believed that Martinez sounded as though he was drunk

and repeatedly asked him what was wrong, before finally asking him if he had

killed someone. (RR3:45). Martinez responded that if he answered her, he could

not reveal who he had killed. (RR3:46). She then ran through a list of those he

might have killed, including his mother, her boyfriend, his dog, or a stranger,

before he admitted that he killed his mother. (RR3:46). Paniagua did not believe

him and asked him not to joke about something like that, but he told her that he

was not joking. (RR3:46). Martinez explained that he shot his mother after they

argued about his failure to be a good father and then described the bloody scene.

(RR3:47). He also kept repeating that he could not believe what had happened.

(RR3:62). Although Paniagua testified that Martinez told her that shooting his



                                         4
mother had been an accident or a mistake, she admitted that she never said this

when the police initially spoke to her. (RR3:52). She also agreed that Martinez’s

statement that he could not believe what had happened was different from him

saying that he accidently shot his mother. (RR3:53).

      Paniagua and Martinez continued to speak while he drove around, and he

eventually stopped at a Motel 6. (RR3:48). She remained on the phone with him

while he spoke with the Motel 6 desk clerk, who turned out to be a high-school

classmate. (RR3:49). After speaking with the desk clerk, he walked out and told

her that there were officers standing by the truck. (RR3:49). She advised him to

act normally, and as he approached the officers, they asked for his name and then

arrested him. (RR3:49).

      The 911 call and police response

      While Paniagua was speaking with Martinez, she texted several people in an

effort to get someone to go check on Gonzalez, and the only person who responded

was Jesus Solorio (hereinafter Solorio). (RR3:50). Solorio received Paniagua’s

urgent texts asking him to call 911 in order obtain assistance for Martinez’s

mother. (RR3:30),(SX6-16). Although Solorio was in disbelief, he called 911 to

report that Paniagua was on the phone with Martinez, who had informed her that

he had shot his mother and wanted to kill himself. (RR3:31), (SX17, 18). After

Solorio made the initial 911 call, the police called him back to obtain more details,



                                         5
and his information that Martinez was on his way to Motel 6 led to Martinez’s

apprehension. (SX12). Solorio’s 911 call also prompted officers to respond to

Gonzalez’s home, where after knocking and receiving no response, they broke

down the front door and found Gonzalez in a room towards the back of the house

lying on the floor in a pool of blood. (RR3:70-73). Because Gonzalez showed no

signs of life and foul play was suspected, detectives with the El Paso Sheriff’s

Office (EPSO) were called out to the scene. (RR3:74-75).

         Detective Antonio Arias (hereinafter Detective Arias) responded to

Gonzalez’s home after he received information that a female, Gonzalez, was found

dead and was believed to have been killed by her son, Martinez, who had been

arrested at the Motel 6. (RR3:79-80). When he arrived at the scene, he spoke with

other detectives, and when the crime-scene technicians arrived, he went to

headquarters to speak with Martinez. (RR3:80).

         Martinez’s video-recorded statement

          Martinez agreed to give a video-recorded statement that was admitted into

evidence without objection, (RR3:81), (SX134), and before questioning began,

Detective Arias read him his Miranda2 warnings. (RR5:228). Martinez first asked

how they knew that he was at the Motel 6 and, after deducing that Paniagua had

called them, stated that her doing so was “f***** up.” (SX134, 1:58). He then


2
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


                                                6
tried to implicate Peralta by stating that he had been with him in the truck when

they stopped at the Motel 6. (SX134, 5:36, 7:14). As the interview continued,

Martinez explained that he had lived with his mother since July of 2011 and that

after arguing with her the prior afternoon about his drinking, she had kicked him

out of her house. (SX134, 28:41). He began to pack his suitcase so that he could

leave and threw in a gun that he had found in a closet and belonged to his mother’s

boyfriend, Peralta. (SX134, 16:26). However, he stopped packing when his

mother suggested that he wait to leave until after his DWI court hearing scheduled

for the next week, given that she had posted his bail and was responsible for his

appearance. (SX134, 17:13).

      Martinez then walked over to Love’s Truck Stop, taking Peralta’s gun with

him, and watched the Super Bowl game. (SX134, 18:24). Prior to the end of the

game, he walked back to his mother’s house, and when he arrived, he stood outside

for about half-an-hour listening to music and “scoping” his mother’s “every

move.” (SX134, 9:09, 19:57). His mother was in her room doing homework and

could not see him because a fence was blocking her view. (SX134, 20:07). He

admitted that he “just got there knowing what he was going to do.” (SX134,

19:53). When he went inside, his mother was still sitting down doing her

homework, and he sat down in front of her. (SX134, 19:47). She asked him why

he had been drinking and said that she thought he had left the house for good.



                                         7
(SX134, 21:05). Martinez stated that the arguments with his mother regarding his

failure to face his problems arose when he drank and that if she “just accepted that

he drank, then things would go smoothly.” (SX134, 11:29).

      His mother spoke with her best friend, Maria Dominguez, on her cell phone,

and after she hung up, they argued some more. (SX134:37:49). She then walked

away and was about to dial a number on her cell phone when he asked to use it “as

a decoy” in order “to get her off the phone.” (RR3:114), (SX134, 23:24, 38:00).

She handed him her cell phone, asking him not to be long, and then went to her

bedroom. (SX134, 22:26). Martinez followed her with the cocked and loaded gun

in his hand and was in the hallway when she got to her bedroom. (SX134, 23:58).

His mother turned to look at him and was about to say something, but before she

could do so, he shot her. (SX134, 25:05). He “looked at her once, but knew that it

was too late.” (SX134, 25:05).

      Martinez said that he left in Peralta’s truck and thought about going to see a

friend in Hatch, New Mexico, but decided not to because he did not want to risk

traveling through the border-patrol checkpoint. (SX134, 26:11). While driving

around, he called Paniagua to tell her what he had done and to speak with his

daughter. (SX134, 26:11). He did not think that she would call the police and

reiterated his dismay with her due to her role in his apprehension. (SX134, 26:11).




                                         8
      Martinez stated that he did not know why he shot his mother. (SX134,

19:07). However, he also said that her “nagging started as soon as he went in” and

that “he just couldn’t hold back. I don’t know. It’s weird.” (SX134, 38:19). He

admitted that there was tension between them, but that it was no reason for him to

have done what he did and said that they should have sat down and talked about

things. (SX134, 30:44).

      Cause of death

      Dr. Contin performed Gonzalez’s autopsy and testified that she died of a

bullet hole to the head. (RR4:27). He stated that the bullet entered her right cheek,

passed into the carotid artery, and then to the neck where it was recovered.

(RR4:19-20). He further explained that Gonzalez died from respiratory arrest, as

her breathing stopped when the bullet hit her cervical spine. (RR4:27). He found

no other injuries on her that were indicative of a struggle. (RR4:20, 29).

      On cross examination, Dr. Contin testified that Gonzalez’s death was

instantaneous and that medical treatment would not have made a difference.

(RR4:28-29).

      The jury found Martinez guilty of murder, rejecting his claim that his actions

were reckless because he had not planned to murder his mother. (RR4:47, 56).




                                         9
      Punishment

      The jury heard testimony that Gonzalez’s family was greatly affected by her

death. (RR4:66, 97). They also learned that after Gonzalez recovered from lupus,

she enrolled in school in order to become a nursing assistant. (RR4:68-69). The

State also introduced evidence of Martinez’s criminal history in Colorado and

photos of him laughing with the Motel 6 desk clerk a few hours after he had

murdered his mother. (SX231, 232, 233), (SX237-244).

      Martinez testified that from the time that he was a child, his mother would

hit him for not doing his chores correctly and tell him that she did not want him in

her life. (RR5:31-32). He claimed that on the day of his mother’s murder, he

snapped because she told him he was nothing but a drunk and that Paniagua did not

want him and would find someone else who might sexually abuse his daughter.

(RR5:61-63).

      The jury rejected Martinez’s claim that he caused his mother’s death under

the immediate influence of sudden passion and sentenced him to life in prison and

a $10,000 fine. (RR6:4).




                                         10
                SUMMARY OF THE STATE’S ARGUMENTS

Summary of the State’s reply to appellant’s sole issue: In his sole issue,

Martinez claims that the trial court erred by not providing a jury instruction on the

lesser-included offense of manslaughter. The trial court correctly refused

Martinez’s request because the evidence at trial did not support providing such an

instruction. Martinez argues that statements he made indicating that shooting his

mother was an accident, that he did not intend to shoot her, and that he could not

take back his actions are evidence that he recklessly caused her death. However,

there is no evidence that Martinez accidentally discharged the gun, during, for

example, a struggle with his mother, or that he only shot towards her in an attempt

to scare her. Additionally, the statements he relies upon are merely expressions of

regret and do not support an inference that he consciously disregarded a known

risk when he shot his mother. Martinez also asserts that Dr. Contin’s testimony

regarding the various ways that homicide could be charged also supports his

position. However, Dr. Contin did not testify that Martinez consciously

disregarded a known risk when he shot his mother, and his testimony that homicide

could be charged as murder, manslaughter, or criminally negligent homicide does

not support that inference.

      Thus, the evidence cited by Martinez did not show that at the time that he

fired the gun, he was aware of, but consciously disregarded, a substantial and



                                         11
unjustifiable risk that his mother would die as a result of his conduct.

Additionally, it does not rebut or negate the evidence that he intentionally and

knowingly caused his mother’s death, where the evidence shows that after what he

described as his mother “nagging” him about his drinking, he took a cocked and

loaded gun, pointed it at her, and shot her in the face.




                                          12
REPLY TO APPELLANT’S SOLE ISSUE: Martinez failed to show that the
trial court erred by refusing his request to provide the jury with an
instruction on the lesser-included offense of manslaughter because the trial
evidence did not support giving such an instruction where, other than his
assertions that he had not intended to murder his mother and that he
accidentally shot her, there was no evidence in the record that showed that at
the time that he fired the gun, he was aware of, but consciously disregarded, a
substantial and unjustifiable risk that his mother would die as a result of his
conduct. Moreover, the evidence showed that he intentionally and knowingly
caused his mother’s death when, after arguing with her over his drinking, he
pointed a cocked and loaded gun at her and shot her in the face as she turned
to say something to him.

                             UNDERLYING FACTS

      In addition to the recitation of facts set out in the statement of facts above,

the record in this case further shows that Martinez was charged by indictment with

two manners and means of committing murder. First, under TEX. PENAL CODE

§19.02(b)(1), with intentionally and knowingly causing the death of Gonzalez by

shooting her in the face with a firearm. (CR:8). And, alternatively, under TEX.

PENAL CODE §19.02(b)(2), with causing Gonzalez’s death by intending to cause

serious bodily injury to Gonzalez and committing an act clearly dangerous to

human life by shooting her in the face with a firearm. (CR:8).

      During voir dire, defense counsel spoke to the jury about manslaughter and

criminally negligent homicide, calling them lesser-included offenses of murder,

and told them that if selected, they would be responsible for determining which of

those offenses Martinez was guilty of. (RR2:86). During the jury-charge

conference, Martinez argued that he was entitled to a lesser-included-offense


                                          13
instruction on manslaughter because, in his video-recorded statement, he claimed

that he had not planned his mother’s murder and could not take back what he did.

(RR4:32).3 The trial court denied this request, finding that there was not a scintilla

of evidence to warrant such an instruction. (RR4:33).

       During closing argument, Martinez argued that he had not intended to kill

his mother based on his statements that he had not planned her murder, that the

murder had just happened, and that he could not take back what he had done.

(RR4:47, 49).

                          ARGUMENT AND AUTHORITIES

       In his sole issue, Martinez contends that the trial court’s charge to the jury

was erroneous because it did not include the lesser-included offense of

manslaughter. See (appellant’s brief:17-25). Martinez’s claim is without merit and

should be overruled because there was no evidence presented to the jury that he

consciously disregarded a known risk when he shot his mother.

I. Principles applicable to the submission of a lesser-included-offense
instruction
       The determination of whether a lesser-included-offense instruction requested

by a defendant must be given involves a two-step analysis. Goad v. State, 354

S.W.3d 443, 446 (Tex.Crim.App. 2011). The first question is whether the offense
3
  The record reflects that Martinez also argued that he was entitled to a lesser-included-offense
instruction on criminally negligent homicide based on the same reasons given for the
manslaughter instruction. (RR4:32). Martinez does not complain in this appeal about the trial
court’s denial of his request for an instruction on criminally negligent homicide.


                                                14
in the requested instruction is a lesser-included offense of the charged offense.

Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). If it is, then a

determination must be made as to whether there is some evidence in the record that

would permit a jury to rationally find that, if the defendant is guilty, he is guilty

only of the lesser offense. Id. In the second step of the analysis, anything more

than a scintilla of evidence may be sufficient to entitle a defendant to a lesser

charge. Id. at 536. And the evidence must establish the lesser-included offense as

a valid, rational alternative to the charged offense. Id. However, “it is not enough

that the jury may disbelieve crucial evidence pertaining to the greater offense, but

rather, there must be some evidence directly germane to the lesser-included offense

for the finder of fact to consider before an instruction on a lesser-included offense

is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003).

“Meeting this threshold requires more than mere speculation—it requires

affirmative evidence that both raises the lesser-included offense and rebuts or

negates an element of the greater offense.” Cavazos v. State, 382 S.W.3d 377, 385

(Tex.Crim.App. 2012).

      A person commits the offense of manslaughter if he “recklessly causes the

death of an individual.” TEX. PENAL CODE §19.04(a). A person acts recklessly

“when he is aware of but consciously disregards a substantial and unjustifiable risk

that the circumstances exist or the result will occur.” TEX. PENAL CODE §6.03(a).



                                           15
Thus, in order for Martinez to have been entitled to an instruction on manslaughter,

the record had to contain “some affirmative evidence” that he did not intend to

cause his mother’s death, thereby allowing a rational jury to find him not guilty of

murder. See Shannon v. State, No. 08-13-00320-CR, 2015 WL 6394922 at *9

(Tex.App.-El Paso Oct. 21, 2015, no pet.)(not designated for publication). And,

there had to be “some affirmative evidence” from which a rational juror could have

concluded that he had the lesser mental state required for manslaughter, i.e., that he

acted recklessly in conscious disregard of an unjustifiable risk that his conduct

would cause his mother’s death. See Shannon, 2015 WL 6394922 at *9, citing

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

      As a legal matter, manslaughter is a lesser-included offense of murder. See

Cavazos, 382 S.W.3d at 384. Thus, the pivotal inquiry in this case is whether the

trial evidence supported giving the instruction to the jury.

II. The trial court properly refused to provide an instruction on
manslaughter because the trial evidence did not support giving such an
instruction.

      In order for Martinez to prevail on his claim that the trial court erred by

failing to grant his request for a jury instruction on manslaughter, there must have

been “some affirmative evidence” that he did not intentionally and knowingly

intend to kill or cause serious bodily injury to his mother, thereby allowing a

rational jury to find him not guilty of murder. See Shannon, 2015 WL 6394922 at



                                          16
*9. And, there had to have been “some affirmative evidence” from which a

rational jury could have concluded that he acted recklessly in conscious disregard

of an unjustifiable risk that his conduct would cause his mother’s death. See

Shannon, 2015 WL 6394922 at *9. In attempting to meet this standard, Martinez

relies on the following: 1) Paniagua’s testimony that Martinez allegedly told her

that shooting his mother was a mistake or an accident, 2) Detective Arias’

testimony that during his video-recorded statement, Martinez said that he had not

planned to murder his mother and that he could not take back his actions, and 3)

Dr. Contin’s testimony that homicide could be classified as either murder,

manslaughter, or criminally negligent homicide. See (appellant’s brief:17-18).

Martinez fails to meet this standard with the evidence he relies upon because

neither the statements nor Dr. Contin’s testimony reflect that his culpable mental

state was merely reckless (or anything less than intentional or knowing) when he

discharged the gun.

      A. Paniagua’s testimony regarding Martinez’s alleged assertion that he
      accidentally shot his mother is an isolated claim that is unsupported by
      the evidence.
      At trial, the prosecutor asked Paniagua whether Martinez told her that

shooting his mother had been a mistake or an accident, and she responded that he

had. (RR3:52). However, when questioned further about this, Paniagua admitted

that when she gave her statement to the police, she did not mention that Martinez



                                         17
characterized his actions as a mistake or an accident. (RR3:52). Instead, she stated

that Martinez initially told her that he could not tell her what had happened

because he could not believe it himself, and then he continued to repeat that he was

in disbelief. (RR3:52-53, 62).

      Paniagua’s testimony regarding Martinez’s claim that he accidentally shot

his mother cannot be considered in a vacuum. See Godsey v. State, 719 S.W.2d

578, 584 (Tex.Crim.App. 1986); Shannon, 2015 WL 6394922 at *9. Rather, the

entire record must be examined and in reviewing the entire record, there is no

evidence that supports Martinez’s claim of mere recklessness. See Shannon, 2015

WL 6394922 at *9-10. Generally, in cases where a defendant is accused of murder

by shooting the victim, courts require that a manslaughter instruction be given

when there is some showing that the gun discharged accidentally or that the

defendant was simply trying to scare the victim. See Arnold v. State, 234 S.W.3d

664, 672 (Tex.App.-Houston [14th Dist.] 2007, no pet.)(“[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.”).

      In his video-recorded statement, Martinez did not mention any facts that

would have shown that he was reckless in discharging the gun, such as engaging in

a struggle with his mother, stating that the gun discharged accidently, or claiming



                                         18
that he only shot towards his mother in order to scare her. Additionally, Dr.

Contin’s testimony that there were no signs of injury on Gonzalez supports the

inference that no struggle occurred. (RR4:20, 29). Thus, the record does not

contain any evidence of the type that generally requires a trial court to instruct the

jury on manslaughter in a shooting death. See Scepanski v. State, No. 13-11-

00523-CR, 2014 WL 4161453 at *5 (Tex.App.-Corpus Christ Aug. 21, 2014, no

pet.)(not designated for publication), citing Hayes v. State, 728 S.W.2d 804, 810

(Tex.Crim.App. 1987)(holding that the exact circumstance under which a

manslaughter charge should be given is one in which the defendant claims that he

did not intend to shoot the victim and that the gun accidentally discharged during a

struggle with the victim); Gilbert v. State, 196 S.W.3d 163, 165 (Tex.Crim.App.

2005)(holding that because manslaughter is a “result-of-conduct” offense, it was

important for appellant, claiming that the trial court erred in refusing to submit a

manslaughter instruction, to rely on facts showing he was reckless in discharging

the gun, such as claiming that he voluntarily discharged the gun in an effort to

shoot near the complainant in order to scare him).

      Moreover, Martinez’s alleged claim that shooting his mother was an

accident, would not rationally support a finding that he acted recklessly. In his

video-recorded statement, Martinez stated that he got to his mother’s house

knowing what he was going to do, that he lied about needing to use his mother’s



                                          19
cell phone so that he could get her off the cell phone, that Gonzalez was simply

standing in her bedroom and had turned to say something to him when he took the

cocked and loaded gun and shot her, and that he left the scene without obtaining

assistance for his mother, later telling Paniagua that he could not believe what he

had done. (SX134, 19:07, 23:24, 23:58, 25:05, 26:11). Thus, his admitted actions

did not support the inference that he consciously disregarded a known risk when he

shot his mother, but, rather, that he knowingly and intentionally caused her death.

See Cavazos, 382 S.W.3d at 385 (holding that “[P]ulling out a gun, pointing it 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.”);

Godsey, 719 S.W.2d at 580-81 (holding that if a deadly weapon was used in a

deadly manner, the inference is almost conclusive that defendant intended to kill).

      Similarly, as this Court explained in Shannon, when evidence shows that a

defendant committed an act that was “clearly dangerous to human life,” such as

shooting a victim with a firearm, recklessness is not raised simply by defendant’s

statement that he did not mean to do it. See Shannon, 2015 WL 6394922 at *9-10.

Here, Martinez admitted that he took a gun and shot his mother, and the evidence

established that she died from a gunshot wound to the head. (SX134, 25:05),

(RR4:27). As such, because Martinez committed an act that was “clearly



                                         20
dangerous to human life,” his request for a manslaughter instruction was not

warranted, despite his claim that it was an accident. See Shannon, 2015 WL

6394922 at *9. (“[N]umerous courts have held that when the record demonstrates

a defendant committed an act that was “clearly dangerous to human life,” such as

shooting a victim at point blank range or stabbing a victim in the throat, the

evidence will not rationally support a finding that the defendant acted recklessly or

negligently, even in light of the defendant’s testimony that he did not intend to kill

his victim.”).

      Thus, Martinez’s statement to Paniagua that it was an accident is not

affirmative evidence from which a rational jury could have concluded that

Martinez acted recklessly in conscious disregard of an unjustifiable risk that his

conduct would cause his mother’s death, and Martinez’s reliance on her testimony

is misplaced as it does not support his position that a manslaughter instruction was

warranted.

      B. Martinez’s statements that he had not planned to murder his
      mother, that the murder just happened, and that he could not take back
      his actions did not refute the evidence that Martinez acted knowingly or
      intentionally when he caused his mother’s death and were merely
      expressions of regret that failed to show that he was reckless when he
      discharged the gun.

      Martinez also relies on Detective Arias’ testimony that in his video-recorded

statement, Martinez claimed that he had not planned to shoot his mother, that the

shooting had just happened, and that he could not take back his actions. See


                                          21
(appellant’s brief:18).4 As with Paniagua’s testimony, Martinez’s statements

reflecting that he had not intended to kill his mother “cannot be plucked out of the

record and examined in a vacuum.” See Godsey, 719 S.W.2d at 584. Rather, the

entire record, specifically Martinez’s video-recorded statement, must be reviewed

in order to determine whether the record contains any affirmative evidence that

Martinez did not in fact intentionally or knowingly cause his mother’s death. See

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

       Here, a review of the record shows that there was substantial evidence that

Martinez intentionally and knowingly caused his mother’s death. Primarily, a

review of Martinez’s video-recorded statement reflects that Martinez initially tried

to implicate Peralta as somehow being involved in his mother’s murder by

claiming that Peralta had been with him when he got to the Motel 6 and asking

how it was that Peralta had not been caught. (SX134, 4:20, 5:36). He then

recounted that he and his mother had an on-and-off argument regarding his

drinking and that they had argued about his drinking the day of the murder.

(SX134, 10:33, 11:15). After they argued, he left her home with Peralta’s gun and

went to a nearby truck stop to watch the Super Bowl game. (SX134, 18:24).

4
  Although Detective Arias agreed that Martinez said these things towards the end of his video-
recorded statement, a review of the conclusion of his statement actually shows that after
Martinez was asked, “so once you were sitting there, the nagging started–right there you had
already decided that you were going to do that?” (SX134, 38:10). Martinez responded, “I mean,
I didn’t decide it. It just happened. I just couldn’t hold back. I don’t know. It’s weird.”
(SX134, 38:17). However, in another part of his statement, Martinez did state that he had not
planned to murder his mother and that there was no going back. (SX134, 13:11, 30:44).


                                              22
When he returned to her home later that evening, he stood outside undetected and

watched her for about half-an-hour. (SX134, 19:07). He then went into the house,

and his mother began “nagging” him as “always.” (SX134, 38:22). His mother

then got on her cell phone, and after she hung up and was about to make another

call, he asked to borrow it as “a decoy” to get her off of the phone. (SX134, 23:24,

37:00). Gonzalez handed him the cell phone, asked him not to be long, and walked

to her bedroom. (SX134, 23:26). He admitted that he followed his mother to her

bedroom with the cocked and loaded gun, and when she got to her bedroom, she

turned around and was about to say something to him, but “not no more,” as he

shot her in the face from where he was standing in the hallway. (SX134, 23:58,

25:05). He and his mother were the only people at the house when he shot her.

(SX134, 31:37). When he was asked what had caused him to explode, Martinez

first stated that he did not know, as he kept replaying what had happened, but then

said, “I guess I just got there knowing what I was going to do, you know.”

(SX134, 19:21-20:08).

      As such, Martinez’s statement detailing that he lied in wait watching his

mother’s every move, concocted a way to get her off the phone, took a gun he

knew was loaded and shot her in the face, then fled the scene and called Paniagua

to tell her that he could not believe that he had shot his mother does not rationally

support an inference that Martinez recklessly caused his mother’s death. Instead, it



                                          23
shows that he had knowledge of his actions and their result. See Cavazos, 382

S.W.3d at 384 (stating that “specific intent to kill may be inferred from the use of a

deadly weapon”); Brown, 2014 WL 3747234 at *6 (holding that appellant’s

admission to her daughter and to the police that she shot the victim and killed her

boss indicated her knowledge of her actions and their result).

       Additionally, there is no evidence directly germane to recklessness because

the statements that Martinez asserts entitled him to the manslaughter instruction

amount to nothing more than expressions of regret and are not sufficient evidence

that would permit a jury to find that if Martinez was guilty, he was only guilty of

manslaughter. See Cantu v. State, No. 04-07-00330-CR, 2008 WL 372506 at *3

(Tex.App.-San Antonio Aug. 20, 2008, pet. ref’d)(not designated for

publication)(holding that appellant’s statements made after he shot and killed his

girlfriend, that he had done something stupid, that he thought he had killed his

girlfriend, and that he had not meant to do it, were expressions of regret and not

sufficient evidence that appellant recklessly discharged the gun or was unable to

perceive the risk created by his conduct); Keller v. State, No. 03-13-00501-CR,

2014 WL 6617143 at *7 (Tex.App.-Austin Nov. 20, 2014, no pet.)(not designated

for publication)(holding that statements of the defendant, charged with shooting

and murdering victim, that the shooting was a mistake and that he should not have

shot the victim, are evidence of remorseful feelings, not a reckless act).



                                          24
      Thus, Martinez’s request for a manslaughter instruction was not supported

by the statements he relies upon because they do not refute the evidence that he

knowingly or intentionally caused his mother’s death and do not show that he acted

recklessly when he discharged the gun.

      C. Dr. Contin’s testimony regarding the manner in which homicide
      may be charged does not support Martinez’s request for a
      manslaughter instruction as it does not suggest that Martinez acted
      recklessly when he shot his mother.

      Martinez also relies on Dr. Contin’s testimony that homicide can result in a

charge of murder, manslaughter, or criminally negligent homicide to support his

argument that there was some evidence that his act of shooting his mother was

reckless. See (appellant’s brief:18). Here, Dr. Contin simply agreed with defense

counsel’s question asking whether homicide could result in three different charges

that take into account an individual’s mental state. (RR4:28). As such, Dr. Contin

was only answering an abstract question and did not state that Martinez acted

recklessly when he discharged the gun or make any statement during his testimony

that would have supported that finding. See Brown, 2014 WL 3747234 at *6

(holding that medical examiner’s statement that shooting a person was considered

to be an act of reckless endangerment did not constitute some evidence that

appellant was merely reckless, where the medical examiner was answering an

abstract question, and did not state that appellant only committed an act of reckless

endangerment).


                                         25
      As such, Dr. Contin’s testimony does not support Martinez’s request for a

manslaughter instruction.

III. Conclusion

      Based on the foregoing, the evidence Martinez relies upon does not directly

raise manslaughter as a valid, rational alternative to murder because it failed to

show that he recklessly disregarded a known risk. That is, that at the time that he

fired the gun, that he was aware of, but consciously disregarded, a substantial and

unjustifiable risk that his mother would die as a result of his conduct. See Gilbert,

196 S.W.3d at 165-66 (holding that neither appellant’s denial that he intended to

kill the victim nor his claim that the shooting was an accident established that

appellant was reckless in having discharged the gun). Rather, a review of the

entire record shows that he intentionally or knowingly caused his mother’s death

by taking the cocked and loaded gun, pointing it at his mother, and shooting her in

the face before she could say anything else to him. See Sanchez v. State, No. 05-

05-01118-CR, 2006 WL 2709528 at *4 (Tex.App.-Dallas June 6, 2007, pet.

ref’d)(not designated for publication)(holding that the evidence did not raise the

lesser-included offense of manslaughter where the evidence showed that appellant

got his shotgun, pointed it at the deceased, and shot her in the back of the head at

close range). As such, Martinez was not entitled to a jury-charge instruction on the

lesser-included offense of manslaughter, and his sole issue should be overruled.



                                          26
                                   PRAYER

      WHEREFORE, the State prays that appellant’s conviction and sentence be

affirmed.

                                     Respectfully submitted,
                                     JAIME ESPARZA
                                     DISTRICT ATTORNEY
                                     34th JUDICIAL DISTRICT

                                     /s/ Rebecca Estrada Quinn
                                     REBECCA ESTRADA QUINN
                                     ASST. DISTRICT ATTORNEY
                                     DISTRICT ATTORNEY’S OFFICE
                                     EL PASO COUNTY COURTHOUSE
                                     500 E. SAN ANTONIO
                                     EL PASO, TEXAS 79901
                                     (915) 546-2059 ext. 3070
                                     FAX (915) 533-5520
                                     E-MAIL: rebquinn@epcounty.com
                                     SBN 00787444

                     CERTIFICATE OF COMPLIANCE

      The undersigned does hereby certify that the foregoing document contains
7,222 words.

                                     /s/ Rebecca Estrada Quinn
                                     REBECCA ESTRADA QUINN

                        CERTIFICATE OF SERVICE

       The undersigned does hereby certify that a copy of the above motion was
sent via the e-file system on May 29, 2018 to Ruben Morales,
rbnpmrls@gmail.com and Mateo DeKoatz, mateodekoatz@yahoo.com, attorneys
for appellant, 718 Myrtle, El Paso, Texas, 79901.

                                     /s/ Rebecca Estrada Quinn
                                     REBECC A ESTRADA QUINN


                                       27
