Opinion issued December 4, 2014




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00145-CR
                           ———————————
                 ROMELLE MONTE HAWKINS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1402764


                         MEMORANDUM OPINION

      Appellant Romelle Monte Hawkins pleaded not guilty to the charged offense

of murder. 1   A jury found Appellant guilty of the lesser-included offense of




1
      See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
manslaughter2 and assessed Appellant’s punishment at 23 years in prison. In one

issue on appeal, Appellant asserts that the trial court erred by refusing to instruct

the jury on the lesser-included offense of criminally negligent homicide.

      We affirm.

                                       Background

      On April 8, 2012, at around 11:00 p.m., Fallon Kiser went to a bar to meet

friends, including her date, Jerold Griffin, and her best friend, Katherine

Brownlow-Stewart, the complainant in this case. Appellant was also at the bar.

He was Katherine’s date.

      The group stayed at the bar for a while and then went to a second club.

Fallon and Katherine were at the second club when, around 3:00 a.m., Jerold

decided that he wanted to leave. Although she wanted to stay at the club, Fallon

decided to leave with her date.

      Fallon and Jerold rode in the backseat of Jerold’s vehicle, a white SUV.

Jerold’s cousin, Devline Smallwood, was driving, and another acquaintance,

Cedric Jackson, rode in the front passenger seat. During the ride, Fallon and Jerold

started to argue. They both had been drinking alcohol that night, and Jerold was

drunk.




2
      See id. § 19.04 (Vernon 2011).

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      Fallon got out of the vehicle and began walking along the road, which was in

an isolated area. Devline drove the SUV slowly along the road to keep pace with

Fallon. The men encouraged Fallon to get back in the vehicle, but she would not

comply. Jerold got out of the SUV and began walking with Fallon trying to

convince her to get back in the vehicle. The two continued to argue as they

walked.

      Fallon called Katherine to come pick her up. Katherine arrived shortly after

Fallon called her. Katherine was driving her black SUV. Appellant was in the

front passenger seat.

      Fallon got into the backseat of Katherine’s vehicle. Katherine and Jerold

began arguing, and Jerold walked toward Katherine’s SUV in what Fallon later

described as an aggressive manner. Fallon saw Katherine reach under her driver’s

seat to grab a gun, which Fallon knew Katherine kept in her vehicle, but Katherine

could not locate the weapon.

      As Jerold approached her SUV, Katherine opened her door, hitting Jerold in

the face. Katherine then got out of the vehicle and began hitting Jerold. Fallon

also got out of the SUV and went to assist Katherine in the physical altercation

with Jerold. The two women engaged in a physical fight with Jerold for about 10

to 15 minutes.




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      The women were winning the fight when Devline approached to break it up.

He grabbed Jerold around the waist and tried to pull him away.

      At this point, the group was near the driver’s side of Katherine’s SUV. The

driver’s side door and window were open. Appellant had never gotten out of

Katherine’s vehicle and remained seated in the front passenger’s seat.

      Without warning, the group heard a gunshot. It was Appellant; he had fired

a revolver from inside Katherine’s SUV. Katherine told Fallon to “get down.”

The two women ducked down by the vehicle. Jerold and Devline ran away.

Cedric, who was further away, hid in the bushes. Ten to fifteen seconds passed.

Appellant fired the gun a second time. That shot hit Jerold in the arm as he ran

away. Some time passed, and Katherine and Fallon thought it was safe. Katherine

stood up and went to get in the driver’s side of her vehicle. About five seconds

after she stood up, Appellant fired the gun a third time, shooting Katherine in the

head. Katherine fell into Fallon’s arms, and they both fell to the ground.

      Fallon looked at Appellant and saw him holding the gun. He was shaking.

Fallon had heard Appellant say, “What the fuck happened?”

      Fallon begged Appellant to help Katherine. Instead, Appellant got into the

driver’s seat of Katherine’s vehicle and drove off. The police and paramedics were

called to the scene. However, Katherine died from the gunshot wound to her head.




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      Fallon told the police that Appellant had shot Katherine and Jerold. Cedric

identified Appellant as the person he saw driving away from the scene.

      Later that day, Appellant went to a police station to inquire about Katherine.

Appellant was taken into custody, and he agreed to be interviewed. During the

video-taped interview, Appellant denied being at the scene and firing the gun.

      Appellant was indicted for the offense of murder.        During trial, Fallon

testified in detail to the events occurring before, during, and after the shooting.

She stated that Appellant was the person who shot Katherine. Fallon testified that,

when Katherine was shot, she had seen Appellant aiming the gun at Katherine’s

head. She stated that the shots had not been fired rapidly; rather, appreciable time

had elapsed between each of the three shots. Fallon testified that Katherine had

been standing upright for five seconds trying to get into her vehicle when

Appellant shot her.

      Cedric also testified. He stated that, although he did not see who had fired

the shots, he saw Appellant drive away after the shooting. The investigating police

officers testified at trial, and the video-taped interview with Appellant was

admitted into evidence. The State further showed, through forensic evidence, that

Appellant had tested positive for gun residue on both his hands and his clothing.

The defense did not present any evidence.




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      At the charge conference, the defense requested that the jury be instructed on

the lesser-included offenses of manslaughter and criminally negligent homicide.

The trial court granted the request to instruct the jury on the lesser-included offense

of manslaughter, but denied the request to instruct the jury on the offense of

criminally negligent homicide.

      When it returned its verdict, the jury found Appellant guilty of the offense of

manslaughter. Appellant pleaded true to an enhancement allegation found in the

indictment, indicating that he had previously been convicted of the felony offense

of felon in possession of a firearm. The jury assessed Appellant’s punishment at

23 years in prison.

      This appeal followed. In one issue, Appellant asserts that the trial court

erred in denying his request to instruct the jury on the lesser-included offense of

criminally negligent homicide.

                       Lesser-Included Offense Instruction

A.    Standard of Review

      We apply a two-step test to determine whether appellant was entitled to an

instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382

(Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.

2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). We first

determine whether criminally negligent homicide is a lesser-included offense of



                                          6
murder by comparing the statutory elements of the greater offense and any

descriptive averments in the indictment with the statutory elements of the potential

lesser-included offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524,

535–36 (Tex. Crim. App. 2007). This inquiry is a question of law. Hall, 225

S.W.3d at 535.

      If this threshold is met, the second step then requires that we determine

whether some evidence in the record would have permitted the jury to rationally

find that, if he was guilty, the defendant was guilty only of the lesser-included

offense. Id. at 536; Guzman, 188 S.W.3d at 188–89; Rousseau v. State, 855

S.W.2d 666, 673 (Tex. Crim. App. 1993). Anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a lesser charge, but the

evidence must establish the lesser-included offense as a valid, rational alternative

to the charged offense. Hall, 225 S.W.3d at 536; Forest v. State, 989 S.W.2d 365,

367 (Tex. Crim. App. 1999). Although the threshold showing required for an

instruction on a lesser-included offense is low, it is not enough that the jury may

disbelieve crucial evidence pertaining to the greater offense; there must be some

evidence directly germane to the lesser-included offense for the finder of fact to

consider before a lesser-included offense instruction is warranted. Bignall v. State,

887 S.W.2d 21, 24 (Tex. Crim. App. 1994).

B.    Analysis



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      Here, the State does not dispute that criminally negligent homicide is a

lesser-included offense of murder. See Saunders v. State, 840 S.W.2d 390, 391

(Tex. Crim. App. 1992) (holding that negligent homicide is a lesser-included

offense of murder). Thus, as briefed, the dispute in this case centers on whether

there is some evidence from which the jury could have rationally found that, if

Appellant was guilty, he was guilty only of the lesser offense of criminally

negligent homicide. At this step of the analysis, “the evidence must establish the

lesser-included offense as a valid, rational alternative to the charged offense.”

Hall, 225 S.W.3d at 536.

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

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

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

individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2011). A person

commits manslaughter if he recklessly causes the death of another. See id. § 19.04

(Vernon 2011). A person commits the offense of criminally negligent homicide if

he causes the death of an individual by criminal negligence.        Id. § 19.05(a)

(Vernon 2011).

      The essential difference between murder, manslaughter, and criminally

negligent homicide is the culpable mental state required to establish each offense.




                                        8
See Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). The Penal

Code defines the relevant culpable mental states as follows:

      (a) A person acts intentionally, or with intent, with respect to . . . his
      conduct when it is his conscious objective or desire to . . . cause the
      result.

      (b) A person acts knowingly, or with knowledge, with respect to a
      result of his conduct when he is aware that his conduct is reasonably
      certain to cause the result.

      (c) A person acts recklessly, or is 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. 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.

      (d) 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 . . . or the result will occur. 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.

TEX. PENAL CODE ANN. § 6.03(a)–(d) (Vernon 2011).

      “The key to criminal negligence is not the actor’s being aware of a

substantial risk and disregarding it, but rather it is the failure of the actor to

perceive the risk at all” created by his conduct. Montgomery v. State, 369 S.W.3d

188, 193 (Tex. Crim. App. 2012); Trujillo v. State, 227 S.W.3d 164, 168 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d). Evidence showing that a defendant



                                           9
did not intend the result does not automatically entitle him to a charge on criminal

negligence. See Trujillo, 227 S.W.3d at 168. “Rather, the difference between

criminally negligent homicide and manslaughter is the culpable mental state of

criminal negligence for the former and recklessness for the latter.”         Id.      A

defendant is not entitled to a charge of criminally negligent homicide if the

evidence shows that the defendant’s awareness is such that he perceived the risk

his conduct created. Id.

      In support of his assertion that the jury should have been instructed on

criminally negligent homicide, Appellant asserts as follows in his appellate brief:

      There was substantial evidence that the shooting and killing of the
      complainant was unintentional and that the Appellant was trying to
      break up the melee that had started in front of him. Ms. Fallon
      testified that [Jerold] was getting more deadly and more aggressive
      and she would have pulled a gun on him that night if she had one.
      The fight had already lasted 10-15 minutes. Ms. Fallon admitted
      under cross examination that there was no friction between the
      complainant and the Appellant and that the Appellant would “not hurt
      someone he was with.” She further admitted that when the
      complainant was shot and killed, the Appellant said, “What the fuck
      happened” and was shaking. . . . There was further evidence that
      [Appellant’s] eyesight was not good and the lighting conditions were
      only good.

(Record citations omitted.)

      While it may show that he did not intend to kill Katherine, the evidence cited

by Appellant does not necessarily show that he failed to perceive the risk of

pointing and firing a gun in the direction of four people, standing nearby him. See



                                         10
Trujillo v. State, 227 S.W.3d at 168. This is particularly true when the cited

evidence is viewed in the context of the other evidence in the record.          See

Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (concluding that

appellant’s statement he did not intend to hit victim not evidence he is guilty only

of lesser included offense, particularly given the other evidence in the record that

he intended to kill victim).

      The evidence showed that Appellant fired the gun three times with a

significant pause between each shot. The second shot hit Jerold in the arm. A

sufficient amount of time passed, which led Katherine and Fallon to think that it

was safe to stand up. After Katherine stood up, another five seconds passed.

Appellant then shot her as she tried to get into her own vehicle in which Appellant

sat. Fallon testified that she saw Appellant aim the gun at Katherine’s head.

      Even if the evidence could be viewed (1) as showing that Appellant was

trying to break up the fight between the two women and Jerold by frightening the

group or (2) as showing that Appellant was shooting at Jerold to protect the

women, such evidence does not raise a scintilla of evidence that Appellant did not

perceive the risk his conduct created. To the contrary, viewing the evidence in

such a manner would show that Appellant disregarded the risk, knew the risk of

firing a gun, or was choosing to exploit that risk. See Trujillo, 227 S.W.3d at 168

(concluding that brandishing a loaded gun to frighten people indicates awareness



                                         11
of a risk posed by a loaded gun); see also Jackson v. State, 248 S.W.3d 369, 372

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that drawing handgun

from pocket in response to a threat does not alone raise an inference that appellant

was unaware of the risk posed by that conduct; instead, it indicates that the actor

was aware of the risk posed by the weapon and was choosing to exploit that risk).

      Because Appellant did not present evidence showing that he failed to

perceive the risk created by his conduct, and the evidence shows that he did

perceive and disregard that risk, the trial court did not err by denying Appellant’s

request to instruct the jury on the offense of criminally negligent homicide. See

Trujillo, 227 S.W.3d at 168–69. We overrule Appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Keyes, Higley, and Brown.

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




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