                                                                                  pd-0907-17
                                                                 COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                                  Transmitted 3/7/2018 10:09 AM
                                                                    Accepted 3/7/2018 12:25 PM
                                                                          DEANA WILLIAMSON
ORAL ARGUMENT GRANTED.                                                                   CLERK
                     Case No.: PD-0907-17                             FILED
__________________________________________________________________
                                                  COURT OF CRIMINAL APPEALS
                                                                   3/7/2018
                                                             DEANA WILLIAMSON, CLERK

    IN THE COURT OF CRIMINAL APPEALS
                             OF TEXAS
______________________________________________________________________________

                   CHRISTOPHER ERNEST BRAUGHTON, JR.
                                 Appellant

                                      v.

                            THE STATE OF TEXAS,
                                   Appellee.
______________________________________________________________________________

      Decided in the 228th Judicial District Court of Harris County, Texas
  Trial Court Cause Number: 1389139, The Honorable Marc Carter, Presiding;
      Appealed to the First Court of Appeals, Cause No. 01-15-00393-CR.
__________________________________________________________________

     CHRISTOPHER ERNEST BRAUGHTON, JR.’S REPLY BRIEF
__________________________________________________________________

                                   Niles Illich
                                   SBOT: 24069969
                                   The Law Office of Niles Illich, Ph.D., J.D.
                                   701 Commerce, Suite 400
                                   Dallas, Texas 75202
                                   Telephone: (972) 802−1788
                                   Facsimile: (972) 236−0088
                                   Email: Niles@appealstx.com

                                    ATTORNEY FOR
                                    APPELLANT CHRISTOPHER
                                    ERNEST BRAUGHTON, JR.
1.         TABLE OF CONTENTS



1. TABLE OF CONTENTS ............................................................................................2
2. TABLE OF AUTHORITIES ........................................................................................4
3. SUMMARY OF THE ARGUMENT..............................................................................6
4. ARGUMENT ...........................................................................................................9
     FIRST RESPONSIVE ISSUE: THE STATE’S STATEMENT OF THE FACTS IS A PLEA TO
     RESOLVE THIS APPEAL ON EMOTION INSTEAD OF ON LAW AND REASON. ...............9
I. Dispute with the State’s Statement of Facts ........................................................9
     SECOND RESPONSIVE ISSUE: THE STATE MISCHARACTERIZED APPELLANT’S ISSUE
     AND APPELLANT AND THE DISSENT USED THE CORRECT STANDARD .....................12

II.       Reply to the State’s First Response ................................................................12
     A. Grant of Review..............................................................................................12
     B. Appellant’s Argument in Opening Brief ........................................................12
     C. State’s Response .............................................................................................12
     D. Appellant’s Reply ...........................................................................................13
     E. Conclusion ......................................................................................................17
     THIRD RESPONSIVE ISSUE: THE STATE FAILED TO ADDRESS THE ISSUE RAISED IN
     APPELLANT’S OPENING BRIEF ...............................................................................18
III.      Reply to the State’s Second Response ...........................................................18
     FOURTH RESPONSIVE ISSUE: THE STATE WAIVED ITS OPPORTUNITY TO SEEK
     DISCRETIONARY REIVEW AND THE DECISION NOT TO ISSUE THE REQUESTED-
     LESSER-INCLUDED OFFENSE WAS ERRONIOUS AND HARMFUL ..............................20
IV.       Response to the State’s Fourth Issue ..............................................................20
     A. State’s Request that this Court Grant Discretionary Review .........................20
     B. The Trial Court Erred in not Issuing the Requested Instruction on Felony-
     Deadly Conduct ....................................................................................................21
       1. State’s Argument .........................................................................................21
                                                             2
     2. Second Step of Royster/Rousseau Test .......................................................21
     3. Felony-Deadly Conduct ..............................................................................22
     4. Facts .............................................................................................................22
     5. State’s Cases ................................................................................................24
     6. Appellant’s Authority ..................................................................................26
     7. Analysis .......................................................................................................28
     8. Harm Analysis .............................................................................................32
  C. Conclusion ......................................................................................................35
CONCLUSION .............................................................................................................35
CERTIFICATE OF COMPLIANCE ..................................................................................36
CERTIFICATE OF SERVICE ..........................................................................................37




                                                             3
2.      TABLE OF AUTHORITIES

Cases
Barrios v. State,
 389 S.W.3d 382, 400 (Tex. App.—Texarkana 2012, pet. ref’d.) .................. 24, 25

Bignall v. State,
  887 S.W.3d 21, 24 (Tex. Crim. App. 1994) .........................................................22

Brewer v. State,
 05-08-01082-CR, 2009 Tex. App. LEXIS 5871, 2009 WL 2274098, at *3 (Tex.
 App. Dallas―July 30, 2009, pet ref’d).................................................................32

Brooks v. State,
 323 S.W.3d 893, 906-07 (Tex. Crim. App. 2010) ......................................... 15, 16

Cary v. State,
 507 S.W.3d 761, 766 (Tex. Crim. App. 2016) .....................................................15

Dixon v. State,
 358 S.W.3d 250, 257 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d.) ...........21

Forest v. State,
 898 S.W.2d 365, 368 (Tex. Crim. App. 1999) .............................................. 24, 25

Goad v. State,
 354 S.W.3d 443, 446–47 (Tex. Crim. App. 2011) ............................ 22, 27, 30, 31

Green v. State,
 14-06-00155-CR, 2007 Tex. App. LEXIS 4370, 2007 WL 1558731, *8; *24
 (Tex. App.—Houston [14th Dist.] May 31, 2007, no pet.) ........................... 25, 26

Jackson v. Virginia,
  443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) ........................................... 15, 16

                                                   4
Jones v. State,
  984 S.W.2d 254, 258 (Tex. Crim. App. 1998) .....................................................23

Kachel v. State,
 PD-1649-13, 2015 Tex. Crim. App. Unpub. LEXIS 402, *4 (Tex. Crim. App.
 March 18, 2015) (unpub. op.) ............................................................ 22, 28, 32, 33

Ortiz v. State,
 144 S.W.3d 225 (Tex. App.—Houston [14th Dist.] 2004, pet ref’d.) (en banc)..
 ............................................................................................................ 26, 27, 29, 30

Ramos v. State,
 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) .....................................................21

Sweed v. State,
 351 S.W.3d 63, 67 (Tex. Crim. App. 2011) ............................................ 21, 30, 32


Statutes
TEX. CODE CRIM. PROC. 36.14 .................................................................................32
TEX. PENAL CODE § 22.05(b) ...................................................................................22
TEX. PENAL CODE § 22.05(b)(2) ..............................................................................22
TEX. PENAL CODE §22.05.........................................................................................31
Other Authorities
U.S. CONST., AMEND XIV, § 1..................................................................................11
Rules
TEX. R.APP. P. 68.2(b) ..............................................................................................20




                                                             5
                                  PD-0907-17
__________________________________________________________________


     IN THE COURT OF CRIMINAL APPEALS
                                  OF TEXAS
______________________________________________________________________________

                       CHRISTOPHER ERNEST BRAUGHTON, JR.
                                     Appellant

                                           v.

                                 THE STATE OF TEXAS,
                                        Appellee.

To the Honorable Judges of the Court of Criminal Appeals:

         Christopher Ernest Braughton, Jr., Appellant, respectfully presents this reply

brief.

3.       SUMMARY OF THE ARGUMENT

         Appellant presents four responsive issues. In his first responsive issue,

Appellant contends that the State has made a transparent plea to resolve this case on

emotion instead of reason and law. In the six and a half pages that comprise the

State’s “Statement of Facts” the State directly references—more than twenty-five

times—the fact that Dominguez was a Marine. Although Dominguez’s status as a

Marine is undeniably tragic, it is ultimately irrelevant to the resolution of this appeal.

Indeed, outside of its “Statement of Facts” the State does not reference this fact
                                            6
again. Appellant trusts that this Court will recognize the State’s plea to emotion and

resolve this case on its merits.

      In his second responsive issue, Appellant contends that the State’s

characterization of the standard of review used by Appellant and the Dissent as an

attempt to blithely discard decades of precedent from this Court is misleading.

Instead, Appellant and the Dissent utilized the familiar legal sufficiency standard

that this Court has relied on for decades and Appellant asks this Court to do the same.

      In his third responsive issue, Appellant argues that the State’s response fails

to address the issue that this Court granted review to consider. The State treated this

issue as though it was a legal-sufficiency issue raised for the first time on direct

appeal. But in his opening brief, Appellant attacked the intermediate-appellate

court’s reasoning in concluding that the evidence was legally sufficient. The State’s

response does not address this issue.

      In his final issue, Appellant contends that the State’s request that this Court

grant a new ground for discretionary review is untimely and should be denied. In

the alternative, Appellant contends that felony-deadly conduct was a lesser-included

offense of murder on the facts of this case and that the trial court erred in denying

the requested instruction and that this error was harmful. The error harmed Appellant

because it prevented any juror (in a self-defense case) who believed that Braughton




                                          7
acted “knowingly” and was unjustified in using deadly force from convicting

Braughton of any offense other than murder.




                                       8
4.       ARGUMENT

                                   FIRST RESPONSIVE ISSUE

I.       Dispute with the State’s Statement of Facts

         It is an undeniable tragedy that Emmanuel Dominguez was a United States

Marine. But it is this Court’s legal, ethical, and even moral duty to decide this case

based on what happened on the night of May 23, 2013 instead of deciding in based

on who Dominguez was.

         In the State’s “Statement of the Facts,” the State uses the word “Marine

Corps,” “USMC,” or “marine” 1 no less than twenty-five times in the span of six and

a half pages. [State’s brief, 4-10]. The irrelevance of the fact that Dominguez was

a Marine is emphasized by the fact that outside of the “Statement of the Facts” the

State never again uses the word “Marine,” “USMC,” or any other reference to the

Marines. 2 The State’s emphasis, in its “Statement of the Facts,” on the fact that

Dominguez was a Marine is a transparent plea to emotion; emotion should have no

consequence for the resolution of this appeal.

         The Majority opinion described Dominguez’s conduct on May 23, 2013. The

Majority wrote that on that night that:



1
 In an unconventional style, the State uses a lowercase “m” for Marine. See, page 4, page 5, note
6; page 6. Although unconventional, Appellant does not dispute that the State is referring to the
Marines.
2
    This does not include the references to the “Wounded Warrior Battalion.”
                                                 9
• Dominguez took his live-in girlfriend to a series of bars, on a motorcycle, and

   drank so much that he was intoxicated to the point that he had twice the legal

   limit alcohol in his blood (.17 with a legal limit of .08) [Majority, 3];

• Dominguez quarreled with his live-in girlfriend and abandoned her at a bar

   [Majority, 3];

• Dominguez, drunk and on his motorcycle, got so close to the back bumper of

   the Braughton’s car, while it was moving, to set off the “vehicle alarm”

   [Majority, 4; 5];

• Dominguez was wobbling on his motorcycle as he operated it [Majority 5-6];

• Dominguez passed the Braughton’s vehicle, got in front of the Braughton’s

   car, and then slammed on his brakes [Majority, 4];

• Mrs. Braughton called her son, the Appellant, and told him in a terrified voice

   that “Son, there’s a guy chasing us. I’m scared.” [Majority, 5];

• Dominguez “dismounted or fell off the motorcycle without engaging the

   kickstand, and then he either threw down the motorcycle or let it fall to its side

   in the street.” [Majority, 5-6];

• Glen Irving, a witness who knew neither party, testified that after Dominguez

   got off of his bike “‘rather quickly’ approached the Braughton’s car”

   [Majority, 6];



                                       10
   • Braughton Sr. then got out of his car and that he and Dominguez exchanged

      vulgarities. [Majority, 6]; and that

   • Dominguez then beat Braughton Sr.’s face. [Majority, 6].

      Whatever Dominguez’s heroics may have been in the Marines, it is beyond

dispute that on the night of May 23, 2013 that his conduct was dishonorable. The

State’s transparent effort to dismiss this lousy behavior is a plea to this Court to

resolve this case on emotion instead of reason and law. The State’s plea is fallacious

(argumentum ad passions). Instead, while tragic, the fact that Dominguez was a

Marine provides him with no special status before this Court. U.S. CONST., AMEND

XIV, § 1.

      Accordingly, the State’s decision to emphasize Dominguez’s status as a

Marine in its “Statement of Facts” is an improper plea for this Court to resolve this

case based on who Dominguez was rather than on what Dominguez and Braughton

did on the night of May 23, 2013. Appellant is confident that this Court will not

heed the State’s appeal to emotion and will instead resolve this case based on its

merits.




                                         11
                            SECOND RESPONSIVE ISSUE

II.   Reply to the State’s First Response

      A.     Grant of Review

      This Court granted review on this issue to determine, principally, “how should

an intermediate-appellate court weigh the evidence to determine whether the State

met its non-evidentiary burden of persuasion.” [State’s brief, 12].

      B.     Appellant’s Argument in Opening Brief

      In his opening brief, Braughton argued that in concluding that the State carried

its non-evidentiary burden of persuasion that the Majority: failed to consider all of

the evidence, engaged in rank speculation, and drew irrational conclusions. Instead

of relying on such problematic reasoning, Appellant argued that the Majority should

have used the established standard relied upon by the Dissent. [Opening brief, 29;

generally 25-42].

      C.     State’s Response

      In its Response, the State contends that “appellant tacitly concedes that the

majority opinion of the First Court of Appeals utilized the correct legal-sufficiency

standard of review—thought appellant disputes the outcome of the majority’s

analysis. . .” [State’s brief, 22]. The State then asks this Court to find that its

members improvidently granted review on this ground. [State’s brief, 22].




                                         12
      D.     Appellant’s Reply

      The State wrongly but conveniently characterizes Appellant’s argument as

one that seeks to discard decades of precedent by advocating for a new standard that

would permit a reviewing court to re-weigh the evidence and to sit as the “thirteenth

juror.” [State’s brief, 23]. This argument misstates Appellant’s argument and that

of the Dissent.

      Appellant argued that the intermediate-appellate court erred when it

concluded that the evidence was legally sufficient to carry the State’s non-

evidentiary burden of persuasion based on the Majority’s reasoning that:

   1) “the jury could have discredited the testimony that Mrs. Braughton called
      Chris before the fight began—testimony undermined by the absence of any
      phone records demonstrating that it occurred or any data retrieved from any
      phone found at the scene;” [Majority, 32]

   2) “the cut on Braughton Sr.’s lip and [the] presence of Braughton Sr.’s DNA on
      Dominguez’s hand indicates only that Dominguez punched Braughton once;”
      [Majority 32]

   3) that even if the Court credited the testimony that Braughton Sr. was punched
      three times by an extraordinarily intoxicated Marine, “the jury could have
      rationally concluded that Chris’s use of deadly force was not immediately
      necessary for Chris to protect his father” because, by the third punch
      “Braughton Sr. was on the ground” and “Dominguez had no weapon and was
      not using his hands as deadly weapons, and was not kicking or jumping on
      Braughton Sr.”

   4) that “Braughton Sr.’s injuries—a bloody lip—were not serious” [Majority,
    33]

   5) Chris’s mother’s statement for him to put down the gun and her asking him
    “what did you do?” [Majority, 33]
                                         13
   6) that Dominguez had stopped punching by the time Braughton fired and that
      “the punches that [Dominguez] had landed on Braughton Sr. up to that point
      do not amount to deadly force that could create a reasonable belief that deadly
      force was necessary.”

   7) the Majority concluded, “In sum, Chris adduced no evidence that Dominguez
      used his hands in a deadly manner or used or threatened to use deadly force
      of any kind before Christ brought a gun to the encounter” [Majority, 34]

[Opening brief, 29-30].

      Appellant argued that these were inappropriate bases on which to conclude

that the State carried its non-evidentiary burden of persuasion because these

conclusions rely on: after the fact determinations, speculation, an ordinary disregard

for the plain language of the statute, and the Majority’s apparent willingness to allow

a jury to act irrationally. [Opening brief, 34-41].

      According to the Dissent, when a reviewing court is tasked with deciding

whether the State carried its non-evidentiary burden of persuasion, that court “must

review all of the evidence that a reasonable jury would credit and must determine

whether, in light of the evidence as a while, a reasonable jury could have found the

essential elements of murder beyond a reasonable doubt and also could have found

against appellant on his defensive issues beyond a reasonable doubt.” (emphasis

original). [State’s brief, 19].

      According to the State, this standard conflicts with “Brooks and its progeny”

and this standard allows a reviewing court to sit as a “thirteenth juror.” [State’s brief,


                                           14
19]. The State is wrong. Instead, Appellant and the Dissent argue that a reviewing

court “must review all of the evidence that a reasonable jury [c]ould credit and then

determine whether the evidence, as a whole would have allowed the jury to convict

and to reject the claim of self-defense.” This approach is entirely consistent with

“Brooks and its progeny.” Brooks’ well known hypothetical is strong evidence that

Appellant and the Dissent relied on the proper standard. In Brooks this Court wrote,

      A hypothetical that illustrates a proper application of the Jackson v.
      Virginia legal-sufficiency standard is robbery-at-a-convenience-store
      case:

      The store clerk at trial identifies A as the robber. A properly
      authenticated surveillance videotape of the event clearly shows that B
      committed the robbery. But, the jury convicts A. It was within the jury's
      prerogative to believe the convenience store clerk and disregard the
      video. But based on all the evidence the jury’s finding of guilt is not a
      rational finding.

Brooks v. State, 323 S.W.3d 893, 906-07 (Tex. Crim. App. 2010).

      Further, the Supreme Court, in Jackson, wrote, “. . . the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979) (cited with approval in Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App.

2016)).




                                         15
      Contrary to the State’s argument, Jackson and Brooks establish that a

reviewing court has a role, albeit limited, in evaluating the evidence. Brooks, 323

S.W.3d at 906-07; Jackson, 443 U.S. at 319.

      Accordingly, Appellant and the Dissent do not naïvely ask this Court to

overrule decades of precedent and to allow an intermediate-appellate court to sit as

the “thirteenth juror.”   Instead, Appellant and the Dissent applied the legal-

sufficiency standard established in Jackson and Brooks and ask this Court to do the

same. To the State’s dismay, this standard necessitates that a reviewing court

consider whether, based on all of the evidence that a rational jury could have

considered, the evidence was sufficient to carry the State’s burden. This is exactly

what Appellant and the Dissent sought to do in their respective analyses of the

evidence. [Dissent, 23-24].

      The Majority, however, veered from this standard. As a single example of a

broader concern, the Majority relied on the speculative conclusion that “the jury

could have discredited the testimony that Mrs. Braughton called Chris before the

fight began.” [Majority, 32]. But, if the jury was permitted to discredit this

evidence, there is no evidence to explain why Chris came out of the home when he

did, with a gun pointed in the air, yelling for Dominguez to stop hitting Braughton

Sr. Instead, to discredit the evidence of the phone call, the jury would have had to

have disregarded all of the affirmative evidence that the call occurred and instead


                                        16
rely on speculation that on May 23, 2013, for no apparent reason, Braughton came

out of his home after his parents returned from dinner so that he could murder a

person who was previously unknown to him and who might serendipitously appear

at the end of this cul-de-sac. Such a conclusion is irrational and entirely speculative

based on the evidence presented to this jury. And such flawed reasoning cannot be

used to find that the State carried its non-evidentiary burden of persuasion.3 Instead,

the intermediate-appellate court should have reviewed the evidence that a rational

trier of fact could have relied upon and, based upon that evidence, evaluated the

sufficiency of the evidence claim.

       E.     Conclusion

       Accordingly, the Majority—even if it argubaly articulated the proper

standard—employed the standard erroneously. Appellant asks this Court to provide

the standard for an evaluation of the evidence when an appellant has challenged the

legal-sufficiency of the evidence as that evidence relates to the appellant’s claim for

self-defense. Because the standard used by the Dissent follows the established

precedent, this Court should adopt the Dissent’s standard.




3
  In his Opening Brief, Braughton explained why each of the conclusions, including this one,
reached by the Majority was improper. Braughton does not repeat that analysis here and instead
refers the Court to pages 34 through 41 of his Opening Brief.
                                              17
                             THIRD RESPONSIVE ISSUE

III.   Reply to the State’s Second Response

       Nearly every statement made in the State’s reply to Appellant’s second issue

is factually correct. [State’s brief, 24-30]. But the State’s argument is irrelevant to

the underlying issue. In his opening brief, Appellant contends that the reasoning

used by the intermediate-appellate court was erroneous. The State has treated this

issue as if the argument is being made to the intermediate-appellate court for the first

time. [State’s brief, 24-30]. To the contrary, the intermediate-appellate court has

issued two opinions and it is the reasoning relied upon by the intermediate-appellate

court in these opinions that Appellant attacked in his opening brief.

       Specifically, Appellant argued that the intermediate-appellate court erred

when it reasoned that the evidence was legally sufficient to carry the State’s non-

evidentiary burden of persuasion when the Majority concluded that:

   1) “the jury could have discredited the testimony that Mrs. Braughton called
      Chris before the fight began—testimony undermined by the absence of any
      phone records demonstrating that it occurred or any data retrieved from any
      phone found at the scene;” [Majority, 32]

   2) “the cut on Braughton Sr.’s lip and [the] presence of Braughton Sr.’s DNA on
      Dominguez’s hand indicates only that Dominguez punched Braughton once;”
      [Majority 32]

   3) that even if the Court credited the testimony that Braughton Sr. was punched
      three times by an extraordinarily intoxicated Marine, “the jury could have
      rationally concluded that Chris’s use of deadly force was not immediately
      necessary for Chris to protect his father” because, by the third punch
      “Braughton Sr. was on the ground” and “Dominguez had no weapon and was
                                          18
      not using his hands as deadly weapons, and was not kicking or jumping on
      Braughton Sr.”

   4) that “Braughton Sr.’s injuries—a bloody lip—were not serious” [Majority,
    33]

   5) Chris’s mother’s statement for him to put down the gun and her asking him
    “what did you do?” [Majority, 33]

   6) that Dominguez had stopped punching by the time Braughton fired and that
      “the punches that [Dominguez] had landed on Braughton Sr. up to that point
      do not amount to deadly force that could create a reasonable belief that deadly
      force was necessary.”

   7) the Majority concluded, “In sum, Chris adduced no evidence that Dominguez
      used his hands in a deadly manner or used or threatened to use deadly force
      of any kind before Chris brought a gun to the encounter” [Majority, 34]

[Opening brief, 29-30].

      Appellant argued that these conclusions were either speculative or improper

after the fact determinations and that they were ultimately irrational. The State’s

response fails to address any of these points and never cites to the Majority or

Dissenting opinion.

      Accordingly, the State’s argument on this point is unpersuasive and

misleading.




                                         19
                            FOURTH RESPONSIVE ISSUE

IV.   Response to the State’s Fourth Issue

      A.     State’s Request that this Court Grant Discretionary Review

      The State asks this Court to exercise its discretion and to grant discretionary

review on the question of whether, under the facts of this case, felony-deadly conduct

is a lesser-included offense of murder. [State’s brief, 30-37].

      Rule 68.2(b) provided the State ten days in which to file its own petition for

discretionary review after Appellant filed his petition. TEX. R.APP. P. 68.2(b). The

State elected not to exercise this opportunity. Now the State asks this Court to

review—without substantive briefing—whether felony-deadly conduct is a lesser-

included offense of murder under the facts of this case. [State’s brief, 30-37].

      By any fair measure the State has waived this issue. As a preliminary matter,

the State has waived the issue because the parties have not had an opportunity to

brief this issue. But further, the State has provided no explanation for why, if this is

an important issue, the State did not seek review when it had the opportunity to do

so. Id. But the answer is likely that the State rightly believed that filing a petition

under Rule 68.2(b) would have increased the chance that this Court would grant

Appellant’s petition and so the State made a strategic decision not to file a petition

but now audaciously asks this Court to grant a late petition and to address this issue.

Appellant respectfully asks this Court to decline this tardy invitation.


                                          20
      B.     The Trial Court Erred in not Issuing the Requested Instruction on
             Felony-Deadly Conduct

             1.     State’s Argument

      The State contends that the trial court correctly denied the instruction on the

requested-lesser-included offense of felony-deadly conduct. [State’s brief, 30].

Relying on a series of misapplied cases, the State wrongly contends that “given that

there was no evidence in the record that appellant did not intend to shoot Dominguez

and cause him serious bodily injury, or that Dominguez did not actually die as a

result of the shooting” the trial court correctly denied the requested-lesser-included

instruction. [State’s brief, 30-31].

             2.     Second Step of Royster/Rousseau Test

      In 2011, this Court described the second step of the test for the inclusion of a

lesser-included offense, stating, “The second step of the lesser-included-offense

analysis is to determine if there is some evidence from which a rational trier of fact

could acquit the defendant of the greater offense while convicting him of the lesser-

included offense.” Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 2011); Hall,

225 S.W.3d at 535–36. This step is satisfied by evaluating all of the evidence in the

record and is inherently fact specific. Dixon v. State, 358 S.W.3d 250, 257 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d.) (citing Ramos v. State, 865 S.W.2d 463,

465 (Tex. Crim. App. 1993)).



                                         21
      In 2015, this Court characterized the evidentiary burden for this step as a “low

threshold—a defendant need only show ‘[a]nything more than a scintilla of

evidence’ to support the lesser-included offense.” Kachel v. State, PD-1649-13,

2015 Tex. Crim. App. Unpub. LEXIS 402, *4 (Tex. Crim. App. March 18,

2015)(unpub. op.)(citing Bignall v. State, 887 S.W.3d 21, 24 (Tex. Crim. App.

1994)). In this same opinion, this Court explained that “. . .we liberally permit a

lesser-included instruction.” Id.

      In conducting this analysis, reviewing courts “consider neither the credibility

of the evidence pertaining to the lesser-included offense, nor whether it conflicts

with other evidence.” Goad v. State, 354 S.W.3d 443, 446–47 (Tex. Crim. App.

2011).

             3.     Felony-Deadly Conduct

      A person commits felony-deadly conduct if he: “knowingly discharges a

firearm at or in the direction of: (1) one or more individuals;. . . ” (emphasis added).

TEX. PENAL CODE §§ 22.05(b), (b)(1), & (e).

             4.     Facts

      Braughton’s indictment alleged alternate ways in which he could have

committed this offense. [CR 18]. The first way was by “intentionally and knowingly

cause[ing] the death of Emmanuel Dominguez . . . by shooting [him] with a . . .

firearm.” [CR 18]. Alternatively, the State alleged that Braughton intended to


                                          22
“cause the death of [Dominguez] by intentionally and knowingly committing an act

clearly dangerous to human life, namely by shooting [him] . . . with a firearm.” [CR

18].

       The evidence produced at trial was sometimes contradictory, other times

inconsistent, and occasionally incredible. But a jury, as the State has repeatedly

argued in this case, has the liberty to believe or disbelieve any of the evidence that

it received. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). The direct

and circumstantial evidence in this case would have allowed a rational jury to find

that Braughton did not commit murder and instead committed felony-deadly

conduct. In this case, a rational jury could have:

       1) believed that Braughton did not have a motive to shoot Dominguez;
       [7 RR 78]

       2) believed that Braughton was so inexperienced with firearms that his
       parents insisted that he keep the gun in his mother’s nightstand; [7 RR
       75–76]

       3) believed that Braughton went outside with the gun pointed in the air
       and yelled repeatedly, “Stop I have a gun;” [6 RR 93; 195; 7 RR 96]

       4) believed that Braughton pointed the gun toward—or in the direction
       of—but not at Dominguez; [7 RR 84]

       5) believed that Braughton knowingly discharged the gun; and, [7 RR
       84]

       6) believed that due to Braughton’s inexperience with firearms and
       resulting poor aim that a fatal injury occurred in spite of Braughton’s
       intentions. [7 RR 75-78].


                                          23
                 5.      State’s Cases

          Principally, the State relies upon the familiar cases of Barrios, Forest, Price,

and Green.

          In Barrios, the Texarkana Court of Appeals determined that the defendant’s

testimony, which was apparently uncontradicted,4 was that “he intended to shoot

[the victim] in the hand.” Barrios v. State, 389 S.W.3d 382, 400 (Tex. App.—

Texarkana 2012, pet. ref’d.). Similarly, in Forest, “appellant was charged with

intentional murder . . .. Appellant admitted he meant to shoot the victim ‘in the butt’

but claims that he did not intend to kill him.” Forest v. State, 898 S.W.2d 365, 368

(Tex. Crim. App. 1999). Evidently, the testimony in these two cases that the

appellant intended to shoot but not kill the victim was without contradiction. See

Barrios, 389 S.W.3d at 400; Forest, 898 S.W.2d at 368.

          Here, however, Braughton testified that he shot “Towards [Dominguez’s]

arm.” [7 RR 84]. This testimony provides affirmative evidence that, if believed by

the jury, establishes that Braughton did not commit murder and instead committed

felony-deadly conduct. This affirmative evidence would have allowed a conviction

only for felony-deadly conduct if the jury believed that Braughton did not intend the

result of his conduct but that due to his inexperience with firearms, and resulting

poor aim, Braughton knowingly discharged the firearm in the direction of


4
    These cases do not provide a careful description of the evidence.
                                                  24
Dominguez and the fatal injury occurred in spite of Braughton’s intentions. Further,

this affirmative evidence also distinguishes this case from both Barrios and Forest

where the uncontradicted evidence was that the shooter intended to shoot—but not

kill—the victim.    Barrios, 389 S.W.3d at 400; Forest, 898 S.W.2d at 368.

Accordingly, the evidence in this case distinguishes it from these cases and these

cases fail to establish that Braughton was not entitled to the requested-lesser-

included offense.

      Similarly, in Green, the evidence established that the appellant “was not trying

to shoot in the air, [and instead] he was aiming at the car [in which the complaining

witness was a passenger], [the appellant] knew that there were four people in the car,

and he knew that firing a loaded weapon at a car full of people was clearly dangerous

to human life.” (emphasis added). Green v. State, 14-06-00155-CR, 2007 Tex. App.

LEXIS 4370, 2007 WL 1558731, *8; *24 (Tex. App.—Houston [14th Dist.] May

31, 2007, no pet.). In Green, the Fourteenth Court of Appeals concluded that “if

believed, appellant’s own testimony [only] demonstrates that he intentionally or

recklessly caused the complainant’s death.” Id. at 26. Here, however, Braughton

testified that he shot “Towards [but not at Dominguez’s] arm.”           [7 RR 84].

Braughton’s testimony is affirmative evidence that Braughton did not discharge the

firearm to intentionally or knowingly cause Dominguez’s death or with the intent to

commit serious bodily harm. Instead, this evidence would have allowed a rational


                                         25
jury to conclude that Braughton discharged the gun in Dominguez’s direction

without intending to hit him but due to his inexperience with firearms and resulting

poor aim that Dominguez was nevertheless fatally injured.             The conflicting

testimony in this case distinguishes it from Green where the uncontradicted evidence

was that the shooter intended to shoot the victim but not to cause death. Green, 2007

Tex. App. LEXIS 4370, 2007 WL 1558731, at *8; *24.

             6.     Appellant’s Authority

      In Ortiz, the Fourteenth Court of Appeals considered a factually similar case.

Ortiz v. State, 144 S.W.3d 225 (Tex. App.—Houston [14th Dist.] 2004, pet ref’d.)

(en banc). In Ortiz, the State charged the appellant with murder but he was convicted

of the lesser-included offense of felony-deadly conduct. Id. at 227. Appellant

challenged his conviction on the basis that felony-deadly conduct was not a lesser-

included offense of murder. Id. at 227.

      Ortiz had been at a party where he had “overstayed his welcome.” Id. As he

left, “his car was showered with bottles thrown by the crowd.” Id. “Appellant drove

approximately one or two blocks, stopped the car, opened the driver’s side door,

pulled out a pistol, and fired several shots.” Id. Appellant admitted that after he had

driven a short distance, about a block, that he stopped and then fired two shots into

the air. Id. (emphasis added). The Fourteenth Court of Appeals found that this

satisfied the first prong for a lesser-included offense and then considered the second


                                          26
prong. Id. at 234. In considering the second prong, the court wrote, “[t]hus the

circumstances suggest that if appellant is to be believed, he did not fire straight up

[into the air], but rather above the heads of the crowd, i.e., in the direction of one or

more individuals. Thus a rational jury could conclude that appellant did not intend

to commit serious bodily injury, but due to his poor aim . . . the victim was

nevertheless fatally injured.” (emphasis added). Id. Therefore the Court concluded

that the evidence was sufficient to satisfy the second test and found that the trial

court properly submitted the lesser-included offense of felony-deadly conduct. Id.

      In Goad, the State charged the appellant with burglary of a habitation. Goad,

354 S.W.3d 444. Goad approached his neighbor purportedly concerned about a lost

dog and Goad asked for permission to search the neighbor’s home for the lost dog.

Id. at 445. The neighbor declined Goad’s request and fifteen minutes later the

neighbor found Goad climbing through a window. Id. At trial, Goad testified that

he was only looking for his missing dog and that he lacked the intent to commit theft.

Id. The trial court denied the lesser-included offense of criminal trespass, but the

intermediate-appellate court found that the decision not to grant the lesser-included

offense was erroneous and reversed. Id. This Court held that Goad’s claim that he

was only looking for his dog “would permit a rational jury to believe that Goad was

only looking for his dog when he entered [his neighbor’s] home and [is] therefore

sufficient to support a criminal trespass instruction.” Id. at 447.


                                           27
            7.     Analysis

      Braughton provided the required scintilla of evidence necessary to satisfy the

second prong of the Royster/Rousseau test. Hall, 225 S.W.3d at 536. This Court

requires trial courts to grant lesser-included offenses liberally and has instructed

reviewing courts not to consider whether the evidence supporting the submission of

a requested-lesser-included offense is credible or conflicts with other evidence

produced at trial. See, e.g., Kachel, PD-1649-13, 2015 Tex. Crim. App. Unpub.

LEXIS 402 at *6.

      Here, a rational jury could have found that Braughton did not commit murder

as alleged in his indictment but rather knowingly discharged a firearm at or in the

direction of Dominguez based on the following direct and circumstantial evidence:

      (1) testimony from Braughton that he had never met Dominguez before the
      night of the shooting;

      (2) testimony from Braughton and Braughton, Sr. and Melissa that Braughton
      was inexperienced with firearms, so much so that although an adult his parents
      insisted that he keep the gun in their room; [7 RR 75–78]

      (3) testimony from Braughton that he left his parents’ home with the gun
      pointed “in the air;” [7 RR 79–80]

      (4) testimony from that Braughton, Braughton, Sr., and Irving that Braughton
      repeatedly said or yelled, “Stop I have a gun;” [6 RR 93; 195; 7 RR 96]

      (5) testimony from Braughton and Irving that Dominguez claimed to have a
      firearm; [6 RR 93; 117–18; 196; 197–98; 7 RR 30; 81; 98]




                                        28
      (6) testimony from Braughton and Braughton, Sr. that after Dominguez
      claimed to have a firearm that he then reached toward his saddlebag and
      opened it; [7 RR 102–03]

      (7) testimony from Braughton that he then lowered his gun and pointed it in
      Dominguez’s general direction, specifically towards his arm but without
      aiming at any specific part of Dominguez’s body, and fired one time; [7 RR
      84; 100;109]

      (8) testimony from Deputy D. Medina and Braughton that Braughton’s gun
      held fourteen bullets but that he fired only one time;[3 RR 173; 7 RR 84]

      (9) testimony from Braughton that the only reason he fired the shot was to
      “stop him;” [7 RR 101]

      (10) testimony of Braughton, Sr. and Melissa that Braughton remained at the
      scene and identified himself as the person who fired the shot; and,

      (11) testimony from the medical examiner that Dominguez was not standing
      immediately in front of Braughton when he fired the gun and photographs of
      Dominguez’s body after he had been shot.

      These facts render this case similar to Ortiz, in which the Fourteenth Court of

Appeals found that felony-deadly conduct was a proper-lesser-included offense of

murder. Ortiz, 144 S.W.3d at 227. Here, as in Ortiz, there is more than a scintilla

of evidence that the shooter did not commit murder.          Specifically, here, the

circumstantial evidence establishes that Braughton sought to avoid shooting

Dominguez: this evidence establishes that Braughton was inexperienced with

firearms, when he exited his parents’ home he did so with the gun pointed into the

air, he repeatedly yelled for Dominguez to stop, and after the shooting he and his

family tried to save Dominguez, and Braughton identified himself to the police as


                                         29
the shooter and told the police where to locate the gun. [6 RR 93; 195; 7 RR 79–80;

96]. Further, as in Ortiz, Braughton provided direct evidence that he did not commit

murder when he testified that he did not aim at a specific part of Dominguez’s body

and instead pointed the gun toward his arm. [7 RR 84; 100; 109]. Thus, based on

the direct and circumstantial evidence, a rational jury could have concluded that

Braughton did not intend to cause serious bodily injury or death but that due to his

inexperience with firearms that he, nevertheless, shot and killed Dominguez. Id.

This satisfies the second prong and entitled Braughton to the instruction on the

lesser-included offense. Sweed, 351 S.W.3d at 68.

      Even if this Court rejects the comparison with Ortiz, the case is similar to

Goad. Goad, 354 S.W.3d at 447. In Goad, the appellant’s testimony was that he

only entered his neighbor’s house through a window he had removed to find his

missing dog. Id. This Court agreed that this testimony, however incredible, satisfied

the second prong of the test for the inclusion of a lesser-included offense. Id. Here,

the evidence is that Braughton was inexperienced with firearms, so much so that his

parents required that he keep his gun in their room, and that Braughton fired the gun

toward Dominguez’s arm. [7 RR 75–78; 84; 100; 109]. This evidence is sufficient

for a jury to have found that Braughton did not intend to cause serious bodily injury

when he fired the gun toward Dominguez but that due to Braughton’s inexperience

with firearms that he nonetheless shot Dominguez. This evidence satisfies the


                                         30
second prong of the test and entitled Braughton to the lesser-included offense. TEX.

PENAL CODE §§ 19.02(b) & 22.05.

      Further, circumstantial evidence that shows that Braughton did not knowingly

or intentionally cause the death of Dominguez. Goad, 354 S.W.3d 451 (Alcala, J.,

concurring)(discussing role of circumstantial evidence in second prong of test for

lesser-included offense analysis). Here, the circumstantial evidence supports the

theory that Braughton did not intentionally or knowingly cause Dominguez’s death.

TEX. PENAL CODE § 19.02(b)(1). Instead, the circumstantial evidence would allow

a rational juror to conclude that Braughton intended to get Dominguez to stop

attacking his family without causing his death. Specifically, the evidence was that

when Braughton first saw Dominguez hitting his father that Braughton pointed the

gun into the air and yelled, repeatedly, for Dominguez to stop, that Braughton shot

toward Dominguez’s arm rather than his head or torso, that Braughton’s family

called 9-1-1, that Braughton remained at the scene, that Braughton identified himself

as the shooter, and Braughton told the police where to locate the gun. This

circumstantial evidence would have allowed a reasonable juror to determine that

Braughton discharged a firearm at or toward Dominguez without the intent to cause

his death and/or without the intent to cause bodily injury. TEX. PENAL CODE §§

19.02(b) & 22.05. Therefore, this evidence satisfies the standard for the inclusion




                                         31
of a lesser-included offense and the trial court erred in denying the requested

instruction. Sweed, 351 S.W.3d at 68.

      Accordingly, the evidence supports the submission of the lesser-included

offense of felony-deadly conduct and the trial court erred when it denied this request.

             8.     Harm Analysis

      When a requested jury charge instruction is wrongly excluded from the jury

charge, the error is harmful if it is “calculated to injure the rights of the defendant,”

which simply means that the error caused some harm to the accused. Sakil, 287

S.W.3d at 28; TEX. CODE CRIM. PROC. 36.14; Schoelman, 644 S.W.2d at 732 n.17.

A reviewing court will reverse an objected to jury charge error or omission if it finds

“any actual harm, regardless of the degree.” Brewer, 2009 Tex. App. LEXIS 5871,

2009 WL 2274098, at *3.

      The purpose of a lesser-included instruction is to avoid leaving the jurors with

two “equally distasteful” options: (1) to acquit the defendant when they believed him

or her guilty of the lesser-included offense, or (2) to convict the defendant of an

offense that they did not believe he or she committed. Kachel, PD-1649-13, 2015

Tex. Crim. App. Unpub. LEXIS 402, at *4.

      Here, the denial of the felony-deadly conduct offense in the jury charge

required the jury to either find Braughton guilty of murder or manslaughter or to

acquit him. [CR 175–98]. The trial court’s error harmed Braughton because it did


                                           32
not permit jurors who might have been convinced that Braughton acted “knowingly”

when he discharged his gun in the direction of Dominguez to find Braughton guilty

of an offense less than murder.       Jurors who believed that Braughton acted

“knowingly,” and considerable evidence supported this conclusion, could not have

found Braughton guilty of manslaughter and were then faced with the predicament

that this Court has sought to prevent being imposed on jurors: finding the defendant

guilty of an offense that the jury did not believe he committed or acquitting him. Id.

Therefore, the trial court’s finding was harmful to Braughton.

      To hold that the jury’s decision to convict Appellant for murder rather than

for manslaughter rendered the erroneous decision to deny Appellant the requested-

lesser-included offense harmless required the Majority to conclude that “the jury

legitimately believed that the defendant was guilty of [only] the greater, charged

offense.” Masterson, 155 S.W.3d at 171-72. Appropriately, but erroneously, the

Majority opinion argues that “the intervening lesser-included offense of

manslaughter served as an available compromise, affording the jury the opportunity

to hold Chris accountable without having to find him guilty of murder. If the jury

believed Chris lacked the requisite intent for murder, it would have convicted him

only of manslaughter; its rejection of manslaughter (and Chris’s defenses) indicate

that the jury legitimately believed Chris committed murder.” (cleaned up).

[Majority, 54].


                                         33
      This analysis, however, fails to account for the mandatory presumption that

the jury followed the jury charge “to its letter.” The charge provided the proper-

statutory definitions for the words “knowingly” and “recklessly” and these

definitions required the jury to reach distinct conclusions. [CR 176].

      The evidence at trial strongly suggested that Appellant acted “knowingly”

rather than “recklessly.” That the evidence shows that Appellant acted “knowingly”

is unsurprising because this is a case of self-defense where the principal issue was

whether Appellant’s deliberate shooting was justified.       The decision to deny

Appellant’s request for felony-deadly conduct to be included in the charge deprived

any juror—who believed that Appellant acted “knowingly” and who believed that

Appellant was unjustified in shooting Dominguez—of convicting Appellant of any

offense other than murder. Instead, the decision not to include felony-deadly

conduct as a lesser-included offense left such jurors in the position of having to

convict Appellant of murder or to acquit him—the exact predicament that this Court

has sought to avoid.

      Moreover, and for substantially the same reasons, the facts of this case echo

this Court’s admonishment in Masterson that, “the existence of an instruction

regarding an intervening lesser offense does not automatically foreclose harm—

because in some circumstances that intervening lesser offense may be the least

plausible theory under the evidence. . .” Masterson, 155 S.W.3d at 171.


                                         34
      Appellant’s case was contested as a self-defense case—meaning that

Appellant acknowledged knowingly or intentionally firing his gun but claimed that

his decision was justified. In this case, it was far more likely that a juror, who was

1) convinced that Appellant’s action was unjustified, 2) was convinced that

Appellant acted “knowingly,” and 3) was following the letter of the charge would

have convicted Appellant of felony-deadly conduct rather than manslaughter.

Therefore, under Masterson the trial court’s error was harmful. Id.

      C.     Conclusion

      Because the State decided not to exercise its right to seek review under Rule

68.2(d) and has provided no explanation for its failure to do so, Appellant asks this

Court to deny the State’s requested petition for discretionary review. Appellant also

contends that the trial court erred in not granting the requested-lesser-included

offense and that the error was harmful.

                                   CONCLUSION

      Braughton contends that the evidence is legally insufficient to support a

conviction of murder and he asks this Court to reverse his conviction and to render

judgment acquitting him. In the alternative, Braughton asks this Court to reverse the

trial court’s judgment and to render a judgment finding that Braughton committed a

lesser-included offense such as manslaughter and then to remand the case to the trial

court for a new hearing on punishment.


                                          35
      Alternatively, Braughton contends that the trial court committed reversible

error in denying his request for the lesser-included offense of felony deadly conduct.

Braughton asks this Court to reverse the trial court’s decision and to remand this

case for a new trial.

                                       Respectfully Submitted,

                                       /s/ Niles Illich

                                       Niles Illich
                                       SBOT: 24069969
                                       Law Office of Niles Illich, Ph.D., J.D.
                                       701 Commerce
                                       Suite 400
                                       Dallas, Texas 75202
                                       Direct: (972) 802−1788
                                       Facsimile: (972) 236−0088
                                       Email: Niles@appealstx.com

CERTIFICATE OF COMPLIANCE

       This is to certify that this brief complies with Rule 9.4 of the Texas Rules of
Appellate Procedure because it is computer generated and the combined briefing
does not exceed 27,000 words. Using the word count feature included with
Microsoft Word, the undersigned attorney certifies that his opening brief contains
15,082 words but when the sections exempted by Rule 9.4(i)(1) are removed, the
brief contains 12,785 words. This reply brief contains 7704 words. Accordingly,
the combined briefing in this case by Appellant is 20,509 words, less than the 27,000
allotted. Additionally, this brief also complies with the typeface requirements
because it has been prepared in a proportionally-spaced typeface using Microsoft
Word in 14-point Times New Roman font for the text and 12-point Times New
Roman font for the footnotes.
                                                /s/ Niles Illich
                                                Niles Illich




                                         36
CERTIFICATE OF SERVICE

       This is to certify that on March 7, 2018 that a true and correct copy of
this brief was served on lead counsel for all parties in accord with Rule 9.5 of the
Texas Rules of Appellate Procedure. Service was accomplished through an
electronic commercial delivery service as follows:

Melissa Stryker
Harris County District Attorney’s Office
1201 Franklin Street
Suite 600
Houston, Texas 77002-1923
Email: STRYKER_MELISSA@dao.hctx.net
Counsel for the State

Stacey Soule
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
Email: information@spa.texas.gov
Counsel for the State

Brady Thomas Wyatt, III
Law Office of Brady T. Wyatt, III
3300 Oak Lawn Ave., Suite 600
Dallas, Texas 75219
Email: Attywyatt@hotmail.com
Counsel for the National Rifle Association of America, Inc.

David H. Thompson
John D. Ohlendorf
Haley N. Proctor
Cooper & Kirk, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Email: dthompson@cooperkirk.com
Counsel for the National Rifle Association of America, Inc.



                                        37
Sean Patrick Healy
Healy Law Offices, P.C.
113 E. Houston Street
Tyler, Texas 75702-8130
Email: genghis@healylaw.com
Counsel for the Texas State Rifle Association


      /s/ Niles Illich
      Niles Illich




                                      38
