                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00035-CR

BRANDON CORNELIUS HARRIS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 08-03647-CRF-85


                MEMORANDUM OPINION ON REMAND

      We originally affirmed the trial court’s judgment after overruling Appellant

Brandon Harris’s two issues, which were that the trial court committed reversible error

when it failed to charge the jury on (1) aggravated assault and (2) manslaughter as

lesser-included offenses. Harris v. State, No. 10-11-00035-CR, 2012 WL 2445030 (Tex.

App.—Waco June 27, 2012) (mem. op., not designated for publication), vacated by State

v. Harris, No. PD-1472-12, 2012 WL 6629600 (Tex. Crim. App. Dec. 19, 2012) (not
designated for publication).1

          Specifically, we held on Harris’s second issue that manslaughter is not a lesser-

included offense of section 19.02(b)(2) murder in the first step of the lesser-included

two-step analysis. Id., 2012 WL 2445030, at *3. In so holding, we primarily relied on

Cavazos v. State, 329 S.W.3d 838, 845-46 (Tex. App.—El Paso 2010), aff’d, 382 S.W.3d 377

(Tex. Crim. App. 2012). In Cavazos, the El Paso court had held that manslaughter is not

a lesser-included offense of section 19.02(b)(2) murder but went on to also find that

there was no evidence that if the defendant was guilty, he was only guilty of

manslaughter. Id. at 844-46. On discretionary review, the Court of Criminal Appeals

disagreed with the El Paso court’s determination that manslaughter cannot be a lesser-

included offense of section 19.02(b)(2) murder but agreed that the evidence did not rise

to a level that could permit a rational jury to find that, if the defendant was guilty, he

was guilty only of the lesser-included offense of manslaughter. 382 S.W.3d at 380, 384-

86.

          Based on its decision in Cavazos, the Court of Criminal Appeals granted Harris’s

petition for discretionary review with respect to our original decision on Harris’s

second issue, vacated our judgment, and remanded this case to us in light of its opinion

in Cavazos. Harris, 2012 WL 6629600, at *1.2 Accordingly, in light of Cavazos, we will re-

address Harris’s second issue.


1
    The case’s background and the evidence at trial are set out in our original opinion.
2
  Harris also sought discretionary review of our decision on his first issue, where we held that the lesser-
included offense of aggravated assault was not raised by the evidence, but the Court of Criminal Appeals
refused that ground. Harris, 2012 WL 6629600, at *1. Accordingly, we will not revisit his first issue.

Harris v. State                                                                                      Page 2
               Manslaughter is recklessly causing the death of an individual, TEX.
        PENAL CODE ANN. § 19.04(a) (West 2011), and a person acts recklessly if he
        is aware of but consciously disregards a substantial and unjustifiable risk
        that the result will occur. Id. § 6.03(c). The indictment’s charge of section
        19.02(b)(2) murder required proof that Harris (1) intended to cause serious
        bodily injury and (2) committed an act clearly dangerous to human life (3)
        by stabbing Lewis with a knife. See TEX. PENAL CODE ANN. § 19.02(b)(2).

Harris, 2012 WL 2445030, at *3. The indictment charged Harris with section 19.02(b)(2)

murder, alleging that Harris did:

        then and there, with intent to cause serious bodily injury to an individual,
        namely, Obije Lewis, commit an act clearly dangerous to human life that
        caused the death of said Obije Lewis, by stabbing him with a knife;

        In Cavazos, the Court of Criminal Appeals’ analysis began with a comparison of

the indictment’s charge of section 19.02(b)(2) murder with the elements of

manslaughter:

                Applying the cognate-pleadings approach, we must determine
        whether the indictment charging Appellant with murder under Section
        19.02([b])(2) alleges all the elements of manslaughter, or elements and
        facts from which all the elements of manslaughter may be deduced.

                The statutory elements of murder under Section 19.02(b)(2), as
        listed in the indictment, are

                  (1) Abraham Cavazos [Appellant]

                  (2) with intent to cause serious bodily injury to an individual,
                  Rogelio Terrazas

                  (3) committed an act clearly dangerous to human life; shooting
                  Rogelio Terrazas with a firearm

                  (4) caused the death of Rogelio Terrazas

        We compare these allegations with the elements of manslaughter, which
        are


Harris v. State                                                                         Page 3
                  (1) A person [Appellant]

                  (2) recklessly

                  (3) caused the death of an individual [Rogelio Terrazas]

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

        The Court of Criminal Appeals concluded that “causing death while consciously

disregarding a risk that death will occur differs from intending to cause serious bodily

injury with a resulting death only in the respect that a less culpable mental state

establishes its commission.” Id. at 384 (citing TEX. CODE CRIM. PROC. ANN. art. 37.09(3)).

Based on this conclusion and its reasoning, we conclude that, given the indictment’s

allegations of section 19.02(b)(2) murder against Harris, manslaughter is a lesser-

included offense under the first step of the lesser-included analysis.

        We thus turn to the second step, which the Court of Criminal Appeals discussed

in Cavazos in the context of section 19.02(b)(2) murder and manslaughter:

               Next we must examine all the evidence to determine if a lesser-
        included-offense instruction on manslaughter was warranted in this case.
        A defendant is entitled to an instruction on every issue raised by the
        evidence. Bell, 693 S.W.2d at 442. “Thus, regardless of the strength or
        weakness of the evidence, if any evidence raises the issue that the
        defendant was guilty only of the lesser offense, then the charge must be
        given.” Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). We
        also explained in Saunders that there are two ways that evidence may
        indicate that a defendant is guilty of only the lesser offense. First,
        evidence may have been raised that refutes or negates other evidence
        establishing the greater offense. Second, the evidence presented regarding
        the defendant’s awareness of the risk may be subject to two different
        interpretations, in which case the jury should be instructed on both
        inferences.

              Under the second prong of the Aguilar/Rousseau test, we must
        consider whether there was some evidence raised at trial from which a

Harris v. State                                                                      Page 4
        rational jury could acquit Appellant of the greater offense of murder and
        convict him of the lesser-included offense of manslaughter. There must be
        some affirmative evidence that Appellant did not intend to cause serious
        bodily injury when he shot the victim, and [there] must be some
        affirmative evidence from which a rational juror could infer that
        Appellant was aware of but consciously disregarded a substantial and
        unjustifiable risk that death would occur as a result of his conduct. At this
        point in the analysis, anything more than a scintilla of evidence may be
        sufficient to entitle a defendant to a charge on a lesser offense. Hall, 225
        S.W.3d at 536. However, the evidence produced must be sufficient to
        establish the lesser-included offense as a “valid, rational alternative” to
        the charged offense. Id. (citing Forest v. State, 989 S.W.2d 365, 367 (Tex.
        Crim. App. 1999)). If the evidence raised at trial casts doubt on the greater
        offense, a lesser-included offense instruction allows the jury to vote for a
        rational alternative. Forest, 989 S.W.2d at 367. While it is true that the
        evidence may be weak or contradicted, the evidence must still be directly
        germane to the lesser-included offense and must rise to a level that a
        rational jury could find that if Appellant is guilty, he is guilty only of the
        lesser-included offense. Meeting this threshold requires more than mere
        speculation—it requires affirmative evidence that both raises the lesser-
        included offense and rebuts or negates an element of the greater offense.

Id. at 384-85.

        In his second issue on manslaughter, Harris relies on this evidence:

        Harris testified that he did not intend to kill Lewis; he did not intend to
        hurt him “real bad;” his intent was to just cut him a little bit; he was trying
        to stab him somewhere in the arm; and he did not intend to stab him as
        deeply as he did. …

Harris, 2012 WL 2445030, at *4.

On the other hand:

               The State points out other parts of Harris’s testimony to show that
        Harris’s statements that he did not intend to kill Lewis or hurt him badly
        do not refute his intention to cause serious bodily injury and his
        commission of an act clearly dangerous to human life. [Harris] admitted
        that he knew how dangerous a knife is, that a knife could cause serious
        bodily injury, that he could be hurt badly if he were stabbed in the back
        with an eight-inch knife, that he knew the knife could kill Lewis, and that


Harris v. State                                                                           Page 5
        he knew that cutting someone with an eight-inch knife “would hurt
        somebody real bad.”

Id.

        Harris argues that his testimony shows that he had no intent to kill or to cause

serious bodily injury, but that he was aware of the risk that a knife could be dangerous

and could cause serious bodily injury, and that he acted recklessly by wanting to stab

Lewis in the arm and cut him.

        Paraphrasing Cavazos, we must consider whether there was some evidence raised

at trial from which a rational jury could acquit Harris of the greater offense of section

19.02(b)(2) murder and convict him of the lesser-included offense of manslaughter. See

Cavazos, 382 S.W.3d at 385. There must be some affirmative evidence that Appellant did

not intend to cause serious bodily injury when he stabbed Lewis, and there must be

some affirmative evidence from which a rational juror could infer that Harris was

aware of but consciously disregarded a substantial and unjustifiable risk that death

would occur as a result of his conduct. See id.

        We begin with the first way that evidence may indicate that a defendant is guilty

of only the lesser offense: Was evidence raised that refutes or negates other evidence

establishing the greater offense? See id. Harris’s testimony that he did not intend to kill

Lewis is not determinative because intent to kill is not an element of section 19.02(b)(2)

murder. Next, Harris’s testimony that he did not intend to hurt Lewis badly or to stab

him so deeply in the back and that he intended “just to cut him a little bit” on the arm

does not refute his intention to cause serious bodily injury. Intent to hurt a person


Harris v. State                                                                      Page 6
“with a knife is intent to cause serious bodily injury.” Martinez v. State, 16 S.W.3d 845,

848 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); see Barrios v. State, 389 S.W.3d 382,

400 (Tex. App.—Texarkana 2012, pet. ref’d) (defendant’s testimony that he intended to

shoot victim in the hand established that he intended to cause serious bodily injury,

established that he was guilty of section 19.02(b)(2) murder, and precluded entitlement

to lesser-included instruction on aggravated assault) (citing Forest v. State, 989 S.W.2d

365, 368 (Tex. Crim. App. 1999)).       In short, Harris’s testimony is not affirmative

evidence that he did not intend to cause serious bodily injury, nor does it negate his

intent to cause serious bodily injury. See Cavazos, 382 S.W.3d at 385.

        The second way that evidence may indicate that a defendant is guilty of only the

lesser offense is whether the evidence presented regarding the defendant’s awareness of

the risk may be subject to two different interpretations, in which case the jury should be

instructed on both inferences. See id. We agree with the State that Harris admitted to a

higher level of culpability than reckless conduct in causing serious bodily injury. See

TEX. PENAL CODE ANN. § 6.03(b) (West 2011) (“A person acts knowingly, or with

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

reasonably certain to cause the result.”).

        [Harris] admitted that he knew how dangerous a knife is, that a knife
        could cause serious bodily injury, that he could be hurt badly if he were
        stabbed in the back with an eight-inch knife, that he knew the knife could
        kill Lewis, and that he knew that cutting someone with an eight-inch knife
        “would hurt somebody real bad.”

Harris, 2012 WL 2445030, at *4. He also knew that a knife could cut through muscle and

bone.

Harris v. State                                                                      Page 7
        In conclusion, Harris’s admission to knowingly causing serious bodily injury by

stabbing Lewis would not permit a rational jury to conclude that Harris is guilty of only

reckless conduct. See Patterson v. State, 950 S.W.2d 196, 200-01 (Tex. App.—Dallas 1997,

pet. ref’d).

        We also agree with the State’s assertion that the evidence is not sufficient to

establish manslaughter as a valid, rational alternative to section 19.02(b)(2) murder. We

recount our original summary of Harris’s trial testimony:

               Harris testified that, on the night of the offense, when he first saw
        Lewis at the apartment complex, he walked to a payphone to call the
        police to arrest Lewis for taking his stereo (Harris had pressed charges
        against Lewis for burglary of his vehicle). Harris could not get through to
        the assigned detective, so he then called 9-1-1 but was told no one would
        be sent to arrest Lewis. He called the police department again and was
        also told by them that no one would be sent. Harris then returned to his
        apartment and got a knife [an eight-inch kitchen knife] to protect himself.
        He came out of his apartment with the knife and saw Lewis and another
        man (Lewis’s cousin) standing at the bottom of the stairs.

               As Harris came down the stairs, Lewis and his cousin began to
        walk off and Harris followed them. When Lewis and his cousin started
        running, he chased them and caught up to Lewis after Lewis could not get
        in the apartment and had run into the air conditioning unit. While Harris
        was still running, he stabbed Lewis one time. Harris testified that he did
        not intend to kill Lewis or hurt him “real bad;” that he did not intend to
        stab that deep; that he was trying to stab Lewis somewhere in the arm;
        and that he intended “just to cut him a little bit” so that Lewis would
        leave him alone.3 …

               The medical examiner testified that the stab wound was consistent
        with a straightforward motion, rather than an over-the-head motion, and
        that the wound was seven inches deep. The knife cut through the muscle
        of Lewis’s upper back, fractured two ribs, passed through his left lung,
        and penetrated the left side of his heart. That type of wound would have

3
 Harris fled the scene and left Bryan, going to his parents’ home in Midway. After learning the next day
that Lewis had died, he returned and turned himself in.

Harris v. State                                                                                  Page 8
        required a considerable amount of force, but the knife had not been buried
        to the hilt. Even without penetrating the heart, the injury would have
        been life-threatening but possibly survivable with medical attention.

Harris, 2012 WL 2445030, at *2-3.

        To paraphrase the Court of Criminal Appeals in Cavazos, Harris’s getting an

eight-inch kitchen knife, leaving his apartment to chase after a fleeing Lewis, and

stabbing Lewis in the upper back seven inches deep, fleeing the scene and the city, and

then testifying that he intended “just to cut him a little bit” does not rationally support

an inference that Harris acted recklessly at the moment he stabbed Lewis. See Cavazos,

382 S.W.3d at 382 (“ Pulling out a gun, pointing it at someone, pulling the trigger twice,

fleeing the scene (and the country), and later telling a friend “I didn't mean to shoot

anyone” does not rationally support an inference that Appellant acted recklessly at the

moment he fired the shots.”).

        The trial court did not err in refusing to charge the jury on the lesser-included

offense of manslaughter, and we overrule issue two. And having previously overruled

Harris’s first issue in our original opinion, we affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 10, 2014
Do not publish
[CRPM]

Harris v. State                                                                       Page 9
