                                                                                              ACCEPTED
                                                                                          03-14-00531-CR
                                                                                                  8334008
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN, TEXAS
                                                                                   12/21/2015 10:34:34 PM
December 21, 2015                No. 03-14-0531-CR                                      JEFFREY D. KYLE
                                                                                                   CLERK


                                  IN THE
                             COURT OF APPEALS               RECEIVED IN
                      FOR THE THIRD JUDICIAL DISTRICT  3rd COURT  OF APPEALS
                                                           AUSTIN, TEXAS
                            OF TEXAS, AT AUSTIN       12/21/2015 10:34:34 PM
                                                                     JEFFREY D. KYLE
                                                                          Clerk
                     DERRICK KUYKENDALL
                                      Appellant

                                          v.

                                 The State of Texas
                                     Appellee

                    On Appeal In Case Number D1DC-13-300701
                    From the 147ST District Court of Travis County
                      The Hon. Bert Richardson, Judge Presiding



                      Brief on Appeal
                                    Submitted by:

                           The Law Offices of Ariel Payan
                                  1012 Rio Grande
                                Austin, Texas 78701
                                 Tel. 512/478-3900
                                 Fax: 512/472-4102
                              arielpayan@hotmail.com


                                     Ariel Payan
                               State Bar No. 00794430

                       Court-Appointed Attorney for Appellant

                             Oral Argument Requested
                                                      Table of Contents


Certificate of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Point of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Facts Relevant to Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Delivery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                                    i
                                    Certificate of Parties

      Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”), the

following is a complete list of the names and addresses of all parties to the trial court’s final

judgment and their counsel in the trial court, as well as appellate counsel, so the Clerk of the

Court may properly notify the parties to the trial court’s final judgment or their counsel, if

any, of the judgment and all orders of the Court of Appeals.

                                          Appellant

                                    Derrick Kuykendall
                                   TDCJ-ID No. 01946959
                                       Holliday Unit
                                        295 IH 45 N
                                    Huntsville, TX 77320

Appellate Counsel:                              Trial Counsel:
                                                Jackie Wood
Ariel Payan                                     Karen Gross
1012 Rio Grande                                 1502 West Ave
Austin, Texas 78701                             Austin, TX 78701

                                        State of Texas

                                     Rosemary Lehmberg
                                       P.O. Box 1748
                                      Austin, TX 78767

Appellate Counsel:                              Trial Counsel:

Scott Taliaferro                                Anna Lee McNelis
                                                Marc Chavez




                                               ii
iii
                                          Index of Authorities


Federal Cases:

Beck v. Alabama, 447 U.S. 625, 634 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16



Texas Cases:

Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Cr.App. 1994).. . . . . . . . . . . . . . . . . . . . . . . 7

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984). . . . . . . . . . . . . . . . . 7, 8, 15

Arline v. State, 721 S.W.2d 348 (Tex.Cr.App. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Blount v. State, 257 S.W.3d 712, 713 (Tex.Cr.App. 2008). . . . . . . . . . . . . . . . . . . . . . . . 8

Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Cr.App. 2012.. . . . . . . . . . . . . . . . . . . 11-14

Crumpton v. State, 301 S.W.3d 663, 664 (Tex.Cr.App. 2009).. . . . . . . . . . . . . . . . . . . . . 8

Frank v. State, 688 S.W.2d 863, 868 (Tex.Cr.App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . 8

Guzman v. State, 188 S.W.3d 185, 188–89 (Tex.Cr.App. 2006). . . . . . . . . . . . . . . . . . . 12

Hampton v. State, 109 S.W.3d 437, 441 (Tex.Cr.App. 2003). . . . . . . . . . . . . . . . . . . . . 12

Herron v. State, 86 S.W.3d 621, 632 (Tex.Cr.App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . 9

Hutch v. State, 922 S.W.2d 166 (Tex.Cr.App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Marras v. State, 741 S.W.2d 395 (Tex.Cr.App. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Moore v. State, 969 S.W.2d 4, 8 (Tex.Cr.App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Mouton v. State, 923 S.W.2d 219, 221–22 (Tex.App.-Houston [14th Dist.] 1996, no pet.)
....................................................................... 9


                                                      iv
Posey v. State, 966 S.W.2d 57 (Tex.Cr.App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Posey v. State, 966 S.W.2d 57, 60 (Tex.Cr.App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rice v. State, 333 S.W.3d 140, 144 (Tex.Cr.App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 12

Rousseau v. State, 855 S.W.2d 666 (Tex.Cr.App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 15

Saunders v. State, 840 S.W.2d 390, 391 (Tex.Cr.App. 1992). . . . . . . . . . . . . . . . . . . . . 13

Saunders v. State, 913 S.W.2d 564 (Tex.Cr.App. 1995). . . . . . . . . . . . . . . . . . . . . . . . . 15

Skinner v. State, 956 S.W.2d 532 (Tex.Cr.App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Meru, 414 S.W.3d 159, 162 (Tex.Cr.App. 2013). . . . . . . . . . . . . . . . . . . . . 11, 12

Tello v. State, 180 S.W.3d 150 (Tex.Cr.App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Vasquez v. State, 25 S.W.3d 826, 828 n. 1 (Tex.App.-Houston [1st Dist.] 2000) aff'd on
other grounds, 56 S.W.3d 46 (Tex.Cr.App. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Villalba v. State, No. 05–13–01661–CR, 2015 WL 1514453, at *4–7 (Tex.App.–Dallas Mar.
31, 2015, pet. ref'd) (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . 14




Texas Constitution:

Tex. Const. art. I, § 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9



Texas Statutes / Codes:

Tex. Pen. Code Ann. § 6.03(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Penal Code Ann. § 19.05(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13



                                                                 v
Tex. Penal Code Ann. § 6.03(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Penal Code Ann. § 19.02.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Penal Code Ann. § 6.03(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Penal Code Ann. § 6.03(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Pen. Code § 19.05(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex.Code Crim. Proc. Ann. art. 36.19.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8



Other References:




                                                             vi
                                  Preliminary Statement

      Pursuant to Tex.R.App.Pro. 38.1(d), the following is a brief general statement of the

nature of the cause or offense:

      Appellant, Derrick Kuykendall, was charged by indictment with the offense of
      murder, a felony, in Cause No. D1DC 13-300701 in the 147th District Court of
      Travis County, Texas. He was convicted of manslaughter and was sentenced
      to 15 years incarceration. Notice of Appeal was timely given.

                                     Point of Error

      Pursuant to Tex.R.App.Pro. 38.1(f), the following are the points upon this appeal is
predicated:

      THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT
      THE JURY REGARDING THE SPECIAL ISSUE OF A DEADLY
      WEAPON AND SUCH WAS HARMFUL TO APPELLANT

      THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT
      THE JURY REGARDING THE LESSOR INCLUDED CHARGE OF
      CRIMINALLY NEGLIGENT HOMICIDE AND SUCH WAS HARMFUL
      TO APPELLANT




                                            vii
                                   No. 03-14-0531-CR

                                    IN THE
                               COURT OF APPEALS
                        FOR THE THIRD JUDICIAL DISTRICT
                              OF TEXAS, AT AUSTIN

                       DERRICK KUYKENDALL
                                        Appellant

                                            v.

                                   The State of Texas
                                       Appellee

                     On Appeal In Case Number D1DC-13-300701
                     From the 147ST District Court of Travis County
                       The Hon. Bert Richardson, Judge Presiding



                        Brief on Appeal
TO THE HONORABLE JUDGES OF THE THIRD COURT OF APPEALS:

      COMES NOW, DERRICK KUYKENDALL, Appellant in the above styled and

numbered cause, by and through Ariel Payan, his undersigned attorney of record, and

respectfully files this “Brief on Appeal,” filed pursuant to Tex.R.App.Pro. 38.1, and would

pursuant to 38.1(g) show the Court as follows:




                                            1
                                Facts Relevant to Appeal

      On March 31, 2013, Jonathan Fischer, Terrance Caldwell, Qualyn Young, Adrian

Garrett, Dessiny Guyton, Ashley Scott and the victim, Bennie Deshawn Heslip, were all

leaving downtown 6th street area heading home. (R.R. Vol. 3, pg 134). The group had been

downtown enjoying the after party for the Texas Relay races held earlier that day in Austin.

This group of four men and three women had arrived separately in the downtown area and

met up to head home together, they all knew each other from high school and in many cases

long before that. The group walked up to where Young and Fischer had parked their

vehicles in the 11th street and Trinity surface parking lot. They had all been drinking to

varying degrees of intoxication.

      Appellant had arrived downtown with three women that night as well, Cadrea Bundy,

and her cousins Brystal Holcombe and Destiny Moore. (R.R. Vol. 4, pg 195). Appellant

had been dating Bundy off and on for some time, and they had left her home in Killeen to

come to Austin for this event. (R.R. Vol. 4, pg 195).       The cousins had been drinking

heavily before being picked up by Bundy and Appellant in Round Rock. (R.R. Vol. 4, pg

200). When they arrived in Austin to the 11th Street and Trinity parking lot, the girls went

one way and Appellant went another, to give them time to be together. (R.R. Vol. 4, pg

201). Bundy had given her car keys to Appellant, because she did not have any pockets.

(R.R. Vol. 4, pg 204). After the bars closed, the girls returned to the car, only to remember

that they did not have the keys and had to sit by the car while Bundy contacted Appellant


                                              2
and told him how to get from where he was back to the parking lot. (R.R. Vol. 4, pg 207).

During that time Moore was sitting on the trunk of the car while Holcombe was sick and

laying on the ground next to it. (R.R. Vol. 4, pg 205).

      Qualyn Young was driving a black Mercedes, and the Victim ended up in the front

passenger seat as they began to get ready to head home, Adrian Garrett sat in the passenger

rear behind him, and Ashley Scott sat behind the driver, Young. (R.R. Vol. 3, pg. 216-7).

Jonathan Fischer was driving an orange Dodge Charger Terrance Caldwell sat in front,

Dessiny Guyton sat in the back.

      Qualyn Young saw Moore sitting on the trunk, and went over and spoke to her in an

effort to get her phone number. While he was speaking to her, Appellant walked up and got

in the car for a moment. (R.R. Vol. 3, pg. 146). Appellant did not say anything to Young

as he was speaking to Moore. Young got back into his vehicle and started to leave. Fischer

pulled out of the parking spot and started to leave, Young began to follow him but stopped

after he was out of his spot. (R.R. Vol. 3, pg. 183). Young stopped his vehicle, Holcombe

sitting in the driver rear side of Bundy’s vehicle opened her door, leaned out and yelled at

Young’s vehicle to move. (R.R. Vol. 4, pg. 267). Scott, sitting in the driver rear side had

her window partially down, yelled back at Bundy’s car. (R.R. Vol. 3, pg. 219). Bundy,

thinking the Mercedes was being rude, got out of her car and approached Scott yelling at

her. (R.R. Vol. 4, pg. 209-210). This argument led to Bundy swinging at Scott, and all




                                             3
three cars emptied putting all 10 of these people in this small area. (R.R. Vol. 4, pg. 215).



      Appellant exited the front passenger seat of Bundy’s vehicle. He was directly next

to a red Trailblazer. The Mercedes was partially blocking the rear of his vehicle, and he

walked to the trunk of his vehicle in an attempt to get Bundy to get back in the car.

Holcombe and Moore both got out and attempted to pull Bundy back to her car. Young was

out of his car and standing near to his driver door, Scott remained inside the back of the car

with the window partially down. Garrett walked around the front of the Mercedes and

headed towards Bundy. The victim got out and began to follow her. Meanwhile Fischer’s

vehicle had stopped a small distance away and they all got out of their car and started to

head back to the confrontation. Caldwell, moving quickly, passed by the Trailblazer and

the passenger side of Bundy’s vehicle walking past Appellant. Caldwell described the

victim as telling everyone to ‘chill’ and moving towards Appellant. (R.R. Vol. 3, pg. 104).

Appellant looked calm and was not yelling or moving. (R.R. Vol. 3, pg. 104). Caldwell saw

the victim put both his hands on Appellant’s shoulders . (R.R. Vol. 3, pg. 147, 151-2, 175).

Caldwell did not see the victim with any weapons. (R.R. Vol. 3, pg. 110). Caldwell saw

Appellant pull a gun out of his back pocket and begin to raise it upwards. Caldwell yelled

‘watch out he has a gun’. (R.R. Vol. 3, pg. 111). The weapon discharged once, the victim

started to stumble backwards and the weapon discharged a second time. The second shot




                                              4
struck the victim, through the heart, killing him. Appellant and the other three girls got back

in their vehicle and left quickly.

      The State charged Appellant with murder in a two count indictment. Count I was

murder as proscribed under Texas Penal Code 19.02 (b)1, intentionally or knowingly

causing the death of an individual, and Count II alleged murder under 19.02 (b)2, intending

to cause serious bodily injury and commits an act clearly dangerous to human life that

causes death. C.R. pg 29. Each paragraph contains a deadly weapon notice to wit: a

firearm, but there is no separate deadly weapon allegation except what is contained within

each individual paragraph alleging murder. Appellant was acquitted of both murder counts

in his indictment, but the jury convicted him of a lessor included manslaughter charge, for

which the jury assessed him 15 years incarceration, no fine, and the jury did not make any

affirmative findings, as the State failed to request one over the objections of the defense.




                                Summary of the Argument

      Pursuant to Tex.R.App.Pro. 38.1(h), the following is a brief summary of the argument

presented in this appeal:

      The trial court erred in failing to give a requested instruction during the guilt

innocence phase of the trial. Appellant requested that the trial court provide the jury with




                                              5
a verdict form that included the option to make an affirmative finding of a deadly weapon,

which was refused.

      The trial court erred in failing to give an instruction on criminal negligent homicide.

Testimony was presented that provided a scintilla of evidence supporting such a charge.




                                             6
                                 Point of Error Restated



      THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT
      THE JURY REGARDING THE SPECIAL ISSUE OF A DEADLY
      WEAPON AND SUCH WAS HARMFUL TO APPELLANT


      The procedure to review jury charge error is prescribed in article 36.19 of the Texas

Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 36.19; see Almanza v. State,

686 S.W.2d 157, 171 (Tex.Cr.App. 1984). The court must determine: (1) whether error

actually existed in the charge, and (2) whether sufficient harm resulted from the error to

result in a reversal. See Posey v. State, 966 S.W.2d 57, 60 (Tex.Cr.App. 1998). The

standard of harm required for reversal depends on whether trial counsel objected. See

Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Cr.App. 1994). If a timely objection was made

at trial, then the appellate court needs only find "some harm." See Almanza, 686 S.W.2d

at 171. By contrast, if the first complaint of charge error is made on appeal, then the

appellate court must find "egregious harm." See id.

      In the instant case, the record reflects that the defense objected to the trial court and

State not submitting an affirmative finding of a deadly weapon verdict form to the jury at

guilt. This conversation was had off the record, but the trial judge recounted and

memorialized the conversation during the punishment charge conference. See (R.R. Vol.

10, pg. 74). A deadly weapon finding may be made at either guilt or punishment by the trier



                                              7
of fact. See Vasquez v. State, 25 S.W.3d 826, 828 n. 1 (Tex.App.-Houston [1st Dist.] 2000)

(stating that fact finder, “may ‘make’ an affirmative deadly weapon finding ...either at the

guilt phase or the punishment phase”), aff'd on other grounds, 56 S.W.3d 46 (Tex.Cr.App.

2001). Appellant’s objection to the lack of special finding was timely made and preserved

for review. Appellant was entitled to the jury affirmatively making the ruling regarding the

use of a deadly weapon, regardless of an ‘implied’ or ‘assumed’ finding. See, Crumpton v.

State, 301 S.W.3d 663, 664 (Tex.Cr.App. 2009); Blount v. State, 257 S.W.3d 712, 713

(Tex.Cr.App. 2008). Denial of a requested charge that Appellant is entitled to is error.

Frank v. State, 688 S.W.2d 863, 868 (Tex.Cr.App. 1985).

      Whenever it appears by the record in any criminal action upon appeal [that a charge

error has occurred], the judgment shall not be reversed unless the error appearing from the

record was calculated to injure the rights of defendant, or unless it appears from the record

that the defendant has not had a fair and impartial trial. All objections to the charge and to

the refusal of special charges shall be made at the time of trial. Tex.Code Crim. Proc. Ann.

art. 36.19.

      Under Almanza v. State, 686 S.W.2d at 157 (Tex.Cr.App. 1984), the appropriate harm

analysis depends upon whether the defendant preserved error by bringing the improper

omission to the trial court's attention. When the error is properly preserved, a reversal is

required if "some harm" is shown. But when the defendant has failed to preserve error, he

must show egregious harm. The difference in harm standards impacts how strong the


                                              8
non-accomplice evidence must be for the error in omitting an accomplice witness instruction

to be considered harmless. Herron v. State, 86 S.W.3d 621, 632 (Tex.Cr.App. 2002).

      Here since an objection was timely made Appellant only need show ‘some harm’.

The jury is the ultimate trier of fact in this case. The jury can decide what issues it wishes

to resolve and in what manner it resolves them, so long as they have a vehicle to effectuate

their decision making process.       See,   Mouton v. State, 923 S.W.2d 219, 221–22

(Tex.App.-Houston [14th Dist.] 1996, no pet.); Tex. Const. art. I, § 8. The inclusion of the

‘assumed’ deadly weapon finding harmed Appellant in that he will serve more time on his

sentence than otherwise. The jury should have been given the opportunity to make the

affirmative finding on the verdict form, as requested by the defense. The failure to so

include was error and harmful to Appellant. Appellant would request that this Court so find

and reverse and remand for a new trial.




      THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT
      THE JURY REGARDING THE LESSOR INCLUDED CHARGE OF
      CRIMINALLY NEGLIGENT HOMICIDE AND SUCH WAS HARMFUL
      TO APPELLANT

      In the instant case defense counsel requested the lessor included charge of criminally

negligent homicide, and submitted a written request that the trial judge ruled on, which is

included in the record. C.R. pg. 120. Appellant was originally charged with two counts of



                                              9
murder, and after Appellant testified at guilt/innocence the trial judge granted the defense

request for the lessor included of manslaughter, but denied a criminal negligence instruction.

      Criminally negligent homicide is defined as when, a person commits an offense if he

causes the death of an individual by criminal negligence. Tex. Pen. Code 19.05(a).

Criminal negligence is defined as:

      Criminally negligent homicide requires not only a failure to perceive a risk of
      death, but also some serious blameworthiness in the conduct that caused it.
      The risk involved must have been substantial and unjustifiable, and the failure
      to perceive that risk must have been a gross deviation from reasonable care.


Tello v. State, 180 S.W.3d 150, 158 (Tex.Cr.App. 2005). The penal code defines criminal

negligence as:

      A person acts with criminal negligence, or is criminally negligent, with respect
      to circumstances surrounding his conduct or the result of his conduct when he
      ought to be aware of a substantial and unjustifiable risk that the circumstances
      exist 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 stand point.

Tex. Pen. Code Ann. § 6.03(d). The State’s theory of the case was that Appellant killed the

victim without provocation or justification. Appellant testified that he due to the physical

beating that he had suffered in the recent past, (R.R. Vol. 8, pg. 40), as well as his physical

and psychological trauma he suffered from being shot himself three years prior, (R.R. Vol.

8, pg. 37-39), and that the victim and other men were rushing towards him he was afraid of

being attacked and seriously injured. (R.R. Vol. 8, pg. 61-2). Appellant thought that the


                                              10
victim was reaching for a weapon as he rushed towards him, noting that his hands were

grabbing at his pockets as he came at him. (R.R. Vol. 8, pg. 61). Appellant felt like he

could not escape or retreat because of the physical layout of the parking lot and the speed

the victim approached him. (R.R. Vol. 8, pg. 62). Appellant pulled the firearm out of his

back pocket and tried to fire a single warning shot to force the victim back away from him.

(R.R. Vol. 8, pg. 62). Appellant does not remember firing a second shot, further he testified

that he was not trying to shoot anyone. (R.R. Vol. 8, pg. 63). Appellant testified that the

victim was on top of him so quickly that he did not have time to aim. The defense attorney

asked him if he aimed the weapon, Appellant responded:

      No, ma'am. I barely -- I barely got -- I didn't even have time to aim. I just took
      it out of my pocket and shot. I probably could have shot myself. I didn't have
      time to aim.

(R.R. Vol. 8, pg. 65). At the time of the first shot, Caldwell’s testimony was that the victim

had his hands on Appellant’s shoulders, during the short pause, which every eye witness

testified to, between shots, the victim started to fall backwards. At which point the second

shot struck him in the chest, and then he fell to the ground.

      Court’s traditionally utilize a two-step Aguilar/Rousseau analysis to determine

whether the trial court should have given the jury a lesser-included offense instruction. State

v. Meru, 414 S.W.3d 159, 162 (Tex.Cr.App. 2013); Cavazos v. State, 382 S.W.3d 377, 382

(Tex.Cr.App. 2012). First, the Court must determine as a matter of law whether the

requested instruction is indeed a lesser-included offense of the offense charged. Meru, 414


                                              11
S.W.3d at 162; Cavazos, 382 S.W.3d at 382; Hall v. State, 225 S.W.3d 524, 535

(Tex.Cr.App. 2007). To do this, the appellate courts compare the elements of the offense

as alleged in the indictment with those of the requested lesser offense. Meru, 414 S.W.3d

at 162. This is a question of law that is independent of the evidence produced at trial. Rice

v. State, 333 S.W.3d 140, 144 (Tex.Cr.App. 2011); see also Meru, 414 S.W.3d at 162.

Second, as a question of fact, the court must determine 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. See Meru, 414 S.W.3d at 162–63; Guzman v. State, 188 S.W.3d 185,

188–89 (Tex.Cr.App. 2006).

      “Anything more than a scintilla of evidence may be sufficient to entitle a defendant

to a charge on a lesser offense.” Cavazos, 382 S.W.3d at 385; see also Meru, 414 S.W.3d

at 163. Further, in determining whether the evidence presented at trial supported an

instruction on a lesser-included offense, a reviewing court may not consider whether the

evidence presented was “credible, controverted, or in conflict with other evidence.” Moore

v. State, 969 S.W.2d 4, 8 (Tex.Cr.App. 1998).

      Nevertheless, the evidence supporting an instruction on a lesser-included offense

“must still be directly germane to the lesser-included offense[.]” Cavazos, 382 S.W.3d at

385; see also Hampton v. State, 109 S.W.3d 437, 441 (Tex.Cr.App. 2003) (evidence must

be “directly germane” to lesser-included offense before an instruction on a lesser-included

offense is warranted). Further, this “threshold requires more than mere speculation—it


                                              12
requires affirmative evidence that both raises the lesser-included offense and rebuts or

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

      Criminally negligent homicide is a lesser-included offenses of murder. See Saunders

v. State, 840 S.W.2d 390, 391 (Tex.Cr.App. 1992) (criminally negligent homicide is a

lesser-included offense of murder). As such, the only issue for consideration is whether

there was any evidence presented at trial from which a rational jury could have found

Appellant guilty of the lesser-included offense, and not guilty of the greater offense of

murder.

      Murder is statutorily defined as intentionally or knowingly causing the death of

another, or alternatively, intentionally or knowingly causing serious bodily injury to another

by committing an “act clearly dangerous to human life,” resulting in that person's death.

Tex. Penal Code Ann. § 19.02 (West 2011). A person acts intentionally, or with intent, with

respect to the nature of his conduct or to a result of his conduct when it is his conscious

objective or desire to engage in the conduct or cause the result. Id. at § 6.03(a) (West 2011).

A person acts knowingly when he is aware of the nature of his conduct and that his conduct

is reasonably certain to cause the result. Id. at § 6.03(b).

      A person commits criminally negligent homicide if he causes the death of an

individual by criminal negligence. Id. at § 19.05(a) (West 2011). A person acts with criminal

negligence when he ought to be aware of a substantial and unjustifiable risk that the result

will occur. Id. at § 6.03(d).


                                              13
For Appellant to have been entitled to an instruction on criminally negligent homicide, the

record has to contain “some affirmative evidence” that Appellant did not intend to kill or

cause serious bodily injury to the victim, thereby allowing a rational jury to find him not

guilty of murder. In addition, there had to be “some affirmative evidence” from which a

rational juror could have concluded that Appellant had the lesser mental state required for

criminally negligent homicide, i.e., that he acted in conscious disregard of an unjustifiable

risk that his conduct would cause the victim's death, or alternatively that he ought to have,

but did not, perceive that his conduct would result in the victim's death. Cavazos, 382

S.W.3d at 385; see also Villalba v. State, No. 05–13–01661–CR, 2015 WL 1514453, at

*4–7 (Tex.App.–Dallas Mar. 31, 2015, pet. ref'd) (mem. op., not designated for publication).

      Here the jury found Appellant not guilty of murder, so the evidence he presented that

he did not intend to cause the death of the victim is self evident. Second, Appellant testified

that he did not intend to shoot the victim, only to fire a warning shot to get him away, and

that he only remembers firing a single round. That round did not strike the victim, the

evidence is uncontroverted that it was the second shot that killed the victim. A ‘scintilla’

of evidence exists that Appellant did not intend to fire the weapon at the victim, and that he

consciously disregarded the risk of firing a weapon with an individual so close to him

without be able to aim the weapon. Further, Appellant did not believe at that time, that he

fired more than the single warning shot into the air. The lack of any evidence of intent or

motive from the State, allows for some evidence to exist in the record that would permit a


                                              14
rational jury to find that, if the Appellant is guilty, he is guilty only of the lesser offense of

criminally negligent homicide.        See Rousseau v. State, 855 S.W.2d 666, 672-73

(Tex.Cr.App. 1993); see also Skinner v. State, 956 S.W.2d 532, 543 (Tex.Cr.App. 1997).

       If evidence from any source raises the issue of a lesser included offense or a defensive

theory, it must be included in the court's charge. See Marras v. State, 741 S.W.2d 395, 405

(Tex.Cr.App. 1987). This is particularly true where the defendant objects to the omission

of the charge or presents a special requested charge. See Posey v. State, 966 S.W.2d 57, 61

(Tex.Cr.App. 1998). Having determined that there was error in the charge, this Court must

now decide if sufficient harm was caused by the error to require a reversal. See Hutch v.

State, 922 S.W.2d 166, 170 (Tex.Cr.App. 1996). Error properly preserved by an objection

will require reversal “as long as the error is not harmless.” Almanza v. State, 686 S.W.2d

157, 171 (Tex.Cr.App. 1984) (op. on reh'g). This has been interpreted to mean any harm

regardless of degree. See Hutch, 922 S.W.2d at 171 (citing Arline v. State, 721 S.W.2d 348,

351 (Tex.Cr.App. 1986)).

       Without the instruction on the requested lesser included offenses the jury is left with

the sole option of either to convict on the charged offense or to let him go; harm is automatic

because the jury was denied the opportunity to convict on the lesser included. See Saunders

v. State, 913 S.W.2d 564, 571 (Tex.Cr.App. 1995). The jury believing the defendant to have

done something, but with the only option to convict him of a greater offense, may choose

to convict him rather than acquit, even though the jury had a reasonable doubt of whether


                                               15
he really committed the greater offense. See id. at 571 (citing Beck v. Alabama, 447 U.S.

625, 634 (1980)).

      The jury was given the option of convicting Appellant of murder or manslaughter.

Clearly the jury did not find Appellant had the requisite intent to find him guilty of murder

but found him guilty of manslaughter the lessor culpable mental state. The jury should have

been given the option to determine whether Appellant was guilty of criminally negligent

homicide, failure to so include harmed Appellant and his case should be reversed and

remanded for a new trial on this issue.




                                             16
                                            Prayer

       WHEREFORE, PREMISES CONSIDERED, DERRICK KUYKENDALL, Appellant

in the above styled and numbered cause respectfully prays that this Court grant him any and

all relief to which he is entitled.

                                         Respectfully submitted,

                                         ARIEL PAYAN
                                         Attorney at Law
                                         1012 Rio Grande
                                         Austin, Texas 78701
                                         Tel. 512/478-3900
                                         Fax: 512/472-4102
                                         arielpayan@hotmail.com

                                      by: /s/ Ariel Payan
                                          Ariel Payan
                                          State Bar No. 00794430

                                         Attorney for Appellant

                           Statement Regarding Oral Argument

                                 Oral Argument is Requested



                                  Certificate of Compliance

       I hereby certify pursuant to T.R.A.P. 9.4(i)(3), the word count for this document, as

determined by the word processing program is 3753                        .
                                        /s/ Ariel Payan
                                    Ariel Payan




                                              17
                                  Certificate of Delivery

       This is to certify that a true and correct copy of the above and foregoing “Appellant’s

Brief on Appeal” was delivered via email or hand-delivered, mailed postage pre-paid or

transmitted via telecopier (fax) to the office of the District Attorney of Travis County,

Texas; and to Appellant at the address listed in the Certificate of Parties, on December 21,

2015



                                         /s/ Ariel Payan
                                        Ariel Payan




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