                                   NUMBER 13-10-00124-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


MICHAEL ANTHONY MANCHA,                                                                       Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                             Appellee.


                       On appeal from the 139th District Court
                             of Hidalgo County, Texas.


                               MEMORANDUM OPINION

                   Before Justices Garza, Benavides, and Wittig1
                      Memorandum Opinion by Justice Wittig

        Appellant, Michael Anthony Mancha, age sixteen at the time of the homicide, was

certified as an adult. He was indicted on three counts of the capital murder of Miguel

Cahue. Mancha pled not guilty but the jury found him guilty of the lesser-included offense

        1
         Retired Justice Don W ittig assigned to this Court by the Chief Justice of the Suprem e Court of Texas
pursuant to the governm ent code. See T EX . G O V ’T C O D E A N N . § 74.003 (Vernon 2005).
of murder, and assessed his punishment at ninety-nine years at the Institutional Division

of the TDCJ. Notice of appeal was timely filed. In a single issue, Mancha argues the trial

court abused its discretion by denying his request for inclusion of the lesser-included

offense of manslaughter in the jury charge. We reverse and remand.

                                    I. Background

         Hazael (Ozzy) Gonzales, eighteen, and Joel (Jay) Salinas owed a lot of money to

several loan agencies and had fallen behind in payments. Ozzy came up with a plan to rob

Cahue, seventy-four, who lived across from the park at a McAllen trailer park.               In

preparation for the robbery, Wendy Gomez, fourteen, went to the Wal Mart store and stole

some latex gloves and duct tape. Wendy knew Mancha but was closer to Ozzy. Ozzy in

turn was closer to Mancha. Ozzy knew that Cahue liked to have sex with young boys.

They planned to take a couple young males to visit Cahue, and gain access to his trailer

home. Cahue was thought to have money and have some “good stuff” to steal. Ozzy and

Jay were joined by Wendy’s brothers Alfredo Gomez and Marvin Gomez, ages nineteen

and sixteen, respectively. Jose de Jesus Martinez, seventeen, and Mancha completed the

group.

         The teens went to Cahue’s trailer once but decided it was too late so they returned

August 6, 2008. They brought with them duct tape, latex gloves, and a BB gun. Mancha

and Alfredo initially held Cahue on the floor, while their cohorts searched for items to steal.

Alfredo held Cahue’s legs and Mancha sat on his upper body, placing a sweater over his

head. Cahue yelled at his captors and struggled to free himself, kicking and scratching.

Cahue’s daughter described her father as fit, able to defend himself, native Chicagoan,

who lifted weights. Alfredo at some point turned Cahue over to Mancha while Alfredo then


                                               2
helped the others search the trailer for valuables. Jose, one of the State’s eye-witnesses,

testified Mancha hit Cahue in the face with his hand. He did not see Mancha strike Cahue

with any object. Jose said Wendy kicked Cahue. Another State witness, Marvin, testified

he saw Mancha hold Cahue’s hands, cover his face with a gray sweater, and strike Cahue

with a candleholder. Wendy hit Cahue three times and “stomped him on the butt” two

times, according to Marvin. The episode took about ten to fifteen minutes according to

Marvin, and thirty minutes according to other testimony. During the ten to fifteen minute

episode, Mancha was “holding the man down.”                     Before testifying, Marvin, also

charged with capital murder, entered into a plea bargain for a reduced charge and five

years in the penitentiary. Similarly, Jose had his capital murder charges reduced and pled

to receive five years in the penitentiary.           These two accomplices were the primary

witnesses for the State.

        Mancha’s statement to police, admitted into evidence, stated he met with Marvin,

Alfredo and Wendy. Wendy told of two “gay guys” who knew a “greedy old man” who hung

out at the park and had money. The two guys would take the group to the man’s trailer.

Alfredo went in first because Cahue thought he was going to have sex with him.2 Later

Mancha went in and told Cahue to lay down on the ground, but he would not listen, so

Mancha, one-hundred-and-ten pounds, grabbed the larger man and knocked him to the

floor. While Cahue was being held, he kept struggling, grabbing Mancha’s neck “. . .and

I kept holding on to the old man trying to calm him down.” The statement continued,

Wendy walked up to Mancha and Cahue and kicked Cahue in the face, but not too hard.


       2
          Investigators found a box of nude photos of young m en and used condom s at the scene
corroborating the group’s story. W endy erased nude photos of m ales from the digital cam era stolen from
Cahue.

                                                   3
Cahue started struggling again and put his hand in the back of Mancha’s pants. Mancha

punched him some more in the face and head. Cahue was bleeding a lot from the head

and face. When the robbery was complete, they grabbed Cahue by his arms and dragged

him to the bathroom and left him there. When Mancha left Cahue, he was breathing and

Mancha did not think he was going to die. Mancha stated he was not going to kill Cahue.

Afterwards, the group went to the park and then behind Wendy’s apartment where they

burned the sweater and latex gloves used in the robbery. Mancha’s statement was

detailed and extensive.

       According to other testimony, when the group left, some were afraid Cahue would

come after them while some were not afraid. When officers arrived on August 8, 2008, the

television and air conditioning were both on and there were blood stains on the carpet.

The door next to the bedroom was locked but was opened with a set of keys located in the

trailer. The pathologist found lacerations to Cahue’s head around the left and right

eyebrow, a bruise on his right forehead, small scrapes on his right hand and right knee,

and bruising on his right calf. The pathologist’s internal exam showed extensive bruising

along the chest wall, rib fractures, as well as discoloration to the back and back of his

head. The pathologist opined that the cause of death was blunt force head and chest

trauma and either set of injuries was sufficient to have killed Cahue.

                                  II. Standard of Review

      Our first duty in analyzing a jury charge issue is to decide whether error exists. Ngo

v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citations omitted). If we find

error, we analyze that error for harm. Id. The degree of harm necessary for reversal

depends on whether the appellant preserved the error by objection. Id. Under Almanza,


                                            4
jury charge error requires reversal when the defendant has properly objected to the charge

and we find "some harm" to his rights. Id. (citing Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985)). Thus, we review alleged charge error by considering two

questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted

from the error to compel reversal. Id.

                                     III. Charge Error

       The State does not contest that Mancha timely requested a jury instruction for the

lesser-included offense of manslaughter. The trial court refused to give the instruction.

To determine whether a charge on a lesser-included offense should be given, the court of

criminal appeals has implemented a two-step test. Mathis v. State, 67 S.W.3d 918, 925

(Tex. Crim. App. 2002) (citing Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App.

1985); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981) (plurality opinion)).

The first step is to decide whether the offense is a lesser-included offense of the offense

charged. Id.; TEX . CODE CRIM . PROD . ANN . art. 37.09 (Vernon 2008); see also, e.g.,

Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar, 682 S.W.2d at

558. The courts have recognized that manslaughter is a lesser-included offense of capital

murder. See Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim. App. 2000).

Therefore, the first prong of the test is satisfied.

       The second step of the Aguilar/Rousseau test requires an evaluation of the

evidence to determine whether there is some evidence that would permit a jury to rationally

find that the defendant is guilty only of the lesser offense. Mathis, 67 S. W.3d at 925 (citing

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998); Rousseau, 855 S.W.2d at 672)).

“In other words, there must be some evidence from which a jury could rationally acquit the


                                               5
defendant of the greater offense while convicting him of the lesser-included offense.” Id.

(citing Moore, 969 S.W.2d at 8). The evidence must establish the lesser-included offense

as a valid rational alternative to the charged offense. Id. (citing Wesbrook v. State, 29

S.W.3d 103, 113-14 (Tex. Crim. App. 2000)); see also Arevalo v. State, 943 S.W.2d 887,

889 (Tex. Crim. App. 1997).

       The only difference between murder and manslaughter is the mental state required.

Ross v. State, 861 S.W.2d 870, 875 (Tex. Crim. App. 1992) (en banc). Murder is

statutorily defined as intentionally or knowingly causing the death of an individual. TEX .

PENAL CODE ANN . § 19.02(b)(1) (Vernon 2008). 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. § 6.03(a).

A person acts knowingly with respect to a result of his conduct when he is aware that his

conduct is reasonably certain to cause the result. Id. § 6.03(b). In contrast, manslaughter

is defined as recklessly causing the death of an individual. Id. § 19.04(a). A person acts

recklessly or is reckless with respect to circumstances surrounding his conduct, or the

result of his conduct, when he is aware of, but consciously disregards, a substantial and

unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(c); Arnold

v. State, 234 S.W.3d 664, 671 (Tex. App.–Houston [14th Dist.] 2007, no pet.).

       Murder is a "result of conduct" offense, which means that the culpable mental state

relates to the result of the conduct, the causing of the death. Schroeder v. State, 123

S.W.3d 398, 400-01 (Tex. Crim. App. 2003). The fact finder would have to conclude that

Mancha recklessly caused Cahue’s death. TEX . PENAL CODE ANN . § 19.04.

       A manslaughter charge is required if there is any evidence from which a jury could


                                              6
conclude the defendant did not intentionally or knowingly kill an individual, but consciously

disregarded a substantial and unjustifiable risk the result would occur. Lugo v. State, 667

S.W.2d 144, 147 (Tex. Crim. App. 1984). "[A] defendant may be shown to be guilty only

of the lesser offense if the evidence presented is subject to different interpretations."

Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992) (holding that the mental

state was shown circumstantially; no direct evidence was presented regarding appellant's

intent to kill or injure, his knowledge that death could result, or his awareness that a risk

of death existed; evidence simply showed that appellant had squeezed the back of the

baby's head fifteen days before the child's death, (whose death was likely caused by a

similar squeeze)).

       “If there is evidence within a defendant's testimony which raises the lesser-included

offense, it is not dispositive that this evidence does not fit in with the larger theme of that

defendant's testimony.” Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).

“Whether there is evidence, within or without the defendant's testimony, which raised the

lesser-included offense controls the issue of whether an instruction on the lesser-included

offense should be given.” Id.      So long as there is some evidence which is "directly

germane" to a lesser-included offense for the factfinder to consider, then an instruction on

the lesser-included offense is warranted. Id. (citations omitted).

       “The issue is not one of theoretical possibility, but one of whether, given all the

circumstances, it is reasonable to infer that the particular individual on trial was in fact

aware of the risk.” Dillon v. State, 574 S.W.2d 92, 95 (Tex. Crim. App. 1978). A

defendant, however, need not be aware of the specific risk of another's death in order to

commit manslaughter. Trepanier v. State, 940 S.W.2d 827, 829 (Tex. App.–Austin 1997,


                                              7
pet. ref'd).

                                     IV. The State’s Argument

        Citing Arnold, 234 S.W.3d at 672, the State initially argues that a defendant’s

isolated statement that he did not intend to kill does not constitute evidence upon which

a jury could rationally find his actions merely reckless. In Arnold, the defendant argued that

testimony created an inference that the gun discharged accidentally. Id. The court held

that the defense argument relied on isolated statements taken out of context and gave

interpretations to the appellant's statements that appellant himself did not give. Id. (citing

Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986) (en banc)). “Fragments of

testimony ‘cannot be plucked out of the record and examined in a vacuum.’” Id. Any

inference that the gun discharged accidentally was negated by the defendant’s testimony

on cross-examination describing his state of mind:

        State:   And your testimony is you jumped and the gun went off, correct?

        Appellant:      Yes, ma'am – yes, sir.

        State:       Now, did you intentionally or knowingly fire that gun at Ken

        Wimbley?

        Appellant:      Yes, sir.

        State:   So, it wasn't an accident that you shot him, correct?

        Appellant:      No, sir.

Id.   While we agree that isolated statements out of context would not support a

manslaughter charge, such is not the case before us. First, the record here affords no

evidence or admission of intent to murder. The State’s own witnesses said their intent was

to rob. Furthermore, as we discuss below, the contextual evidence, both direct and


                                                 8
circumstantial, supports an inference that the resulting death was caused recklessly, rather

than intentionally.

       Next, the State cites Wesbrook, 29 S.W.3d at 113. There, the appellant claimed the

trial court erroneously denied his request for a jury instruction on the lesser-included

offense of aggravated assault. Id. The only evidence supporting an aggravated assault

instruction came from appellant himself when he took the stand and, under direct

examination, admitted that he fired the rifle but denied he possessed any intent to kill the

five victims. Id. As the State argues, a defendant’s statement must be considered in the

context of the entire record to determine whether there was evidence from which the jury

could have concluded that the appellant was only guilty of manslaughter. See id. at 113-

14. In Wesbrook, the trial record showed appellant acted intentionally, or at the least,

knowingly, when he walked into an apartment armed with a high-powered rifle. Id. at 112.

He fired a single shot at close range into the chest of the first victim, and continued to fire

the weapon, again at close range, into four more individuals, choosing as his target either

their head, chest, or abdomen. Id. Physical evidence from the scene and the condition

of the bodies suggest that one victim was shot as he attempted to escape from the

apartment and another was shot while on his knees. Id. The only contrary evidence that

this was not an intentional or knowing act was appellant's own assertion that he did not

intend to kill. Id. Given the entire record, this was not evidence from which a jury could

rationally conclude that appellant was guilty only of aggravated assault. Id. at 113-14

(citing Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999) (holding defendant

not entitled to instruction on the lesser-included offense of aggravated assault when

evidence showed appellant, at least, guilty of homicide). Although an instruction on


                                              9
aggravated assault was given here, arguably Mancha was not entitled to one. See id.

       Unlike Wesbrook, Mancha did not shoot multiple victims at close range with a high

powered rifle. We must consider the entire record where multiple participants indicated no

intent to kill and where Ozzy’s entire scheme, as well as that of his accomplices, was to rob

Cahue. Thus, Mancha’s statement of lack of intent to kill is corroborated by the express

intent of the others, the use of duct tape, a BB gun, and even the logical inference of the

pathologist’s testimony that blows to the chest by Wendy could have caused the death of

Cahue. “Either one could kill him, the head trauma or the chest trauma.”

       The State argues that Mancha’s statement that he “did not intend to kill the victim

but was only trying to restrain him,” is an interpretation that can only be reached if specific

aspects are taken out of context. However, in the context of Mancha’s statement, he told

Cahue to lie down on the ground. Mancha’s statement recited that Alfred told Cahue

several times to get down also but Cahue would not listen. Mancha grabbed Cahue and

knocked him down to the floor. He held Cahue who kept telling the group “stuff.” Mancha

had duct tape hidden in his sweater. “We were trying to tie him up and hold him down, but

he kept struggling with us.” While being held, Cahue bit Mancha on the left thumb. “I

punched him several times in the face to stop him from struggling but he would not stop.”

Cahue kept grabbing Mancha’s neck and pinching him with his hands. “Alfred walked out

of the house and I kept holding on to the old man trying to calm him down.” Wendy walked

up and kicked Cahue in the face. Cahue starting struggling again and put his hand in the

back of Mancha’s pants. “I punched him some more in the face and head.” Cahue was

dragged to the back room. “When I left the old guy was still breathing. I did not think that

he was going to die.”


                                              10
       We also note that the State focuses almost exclusively on certain isolated parts of

Mancha’s statement, rather than all of the contextual evidence we are required to consider.

Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000) (stating that the appellate

court must examine the entire record instead of plucking certain evidence from the record

and examining it in a vacuum).

       The State next cites Mathis v. State, 67 S.W.3d 918, 925-26 (Tex. Crim. App. 2002).

Like Wesbrook–indeed citing Wesbrook–the defendant shot multiple people. He killed one

with two shots to the head, including one shot to the back of the head, and shot a third

person between her eyes and yet still attempted to obtain a lesser charge of aggravated

assault. Id. (citing Wesbook, 29 S.W.3d at 103) (holding defendant not entitled to

instruction on the lesser-included offense of aggravated assault when evidence showed

appellant, at least, guilty of homicide)). Witnesses testified defendant’s actions were calm

and collected. Id. The defendant vacillated between insisting he had not aimed the gun

when shooting and stating that he had indeed aimed and shot:

       I did not actually know at the time that I was – I was shooting [Almaguer]. I
       did aim the gun and pull the trigger, but I never meaned [sic] – I just shot. I
       never aimed it or anything. It just hit her. . . . I never said I didn't aim the gun
       and pull the trigger. I have been telling you the whole time that I did aim the
       gun and pull the trigger. . . . after they started hollering and screaming, then
       I went in there and that's when I aimed and pulled the gun and pulled the
       trigger. . . . I said I pointed the gun – I said I pointed it – I aimed – I didn't
       mean to just point it. . . . I just pointed it and shot . . .. I just pointed the gun
       and shot. I wasn't even really just looking . . . when I shot the gun, but I did
       aim it over there. I wasn't never even looking . . . I just pulled the trigger. . .
       . I just closed my eyes and shoot [sic].

Id. The evidence of the defendant’s actions reflected he was calm and calculating, not

panicked or frightened. Id. While claiming recklessness and no intent to kill, his own

testimony was inconsistent, for example he insisted he did not aim the weapon and yet


                                                11
stating he did aim and shoot.          Id. “Appellant's testimony that he did not intend to kill

anyone does not amount to evidence upon which a jury could rationally find appellant only

acted recklessly with respect to killing Hibbard, and not intentionally.” Id. Apart from the

defendant’s own testimony that he did not intend to kill anyone, there was no other

evidence in support of such theory, and “in fact the evidence refuted that testimony.” Id.

The Mathis court concluded that the defendant’s testimony did not supply evidence upon

which a jury could rationally find appellant's actions toward Hibbard were merely reckless

and were not at least knowing. Id. (citing Jackson, 992 S.W.2d at 475). Mathis likewise

does not apply for several reasons. First, the requested lesser-included charge in this case

was manslaughter, not aggravated assault.                Second, Mancha’s statement does not

vacillate between aiming a weapon and insisting he did not aim. The only arguable

inconsistency in the statement, as the State points out in its next argument, was Mancha’s

gratuitous statement he didn’t remember a lot.3 Third, Mancha was not armed with a high

powered rifle and did not shoot or kill multiple people or harm any other person. The

evidence did not even put the BB gun in his hands. Fourth, the State’s own witnesses

stated that their intent was to rob, and the plan to rob necessarily included restraining, but

not killing, Cahue. In context, Ozzy’s plan was designed and implemented as a robbery,

not a multiple homicide.

       Next, addressing the memory portion of Mancha’s statement, the State argues that

evidence of a defendant's inability to remember causing the death of the victim does not

entitle the defendant to a charge on the lesser-included offense of manslaughter, citing

Schroeder, 123 S.W.3d at 401. In Schroeder, the defendant testified that although he


       3
           Mancha’s detailed and expansive statem ent was one and a half legal pages, single spaced.

                                                    12
remembered the events leading up to the shooting, he suddenly “blacked out” and had no

recollection of actually shooting the victim. Id. By his own admission, he was not aware

that he caused the victim's death at the time of the shooting. Id.

       The court of appeals’ reliance on the cited cases involving reckless conduct
       is misplaced simply because those cases do not involve defendants who
       were completely incognizant of what occurred at the time they engaged in
       the charged conduct. Here, the evidence of the appellant's struggle with the
       victim and his statements, “It was an accident” and “I did not mean to,” are
       relevant to the defensive issues of accident and self-defense, but such
       evidence does not allow a finding of recklessness given the appellant's
       self-described mental state when the victim was killed. Evidence of a
       defendant's inability to remember causing the death of the victim does not
       entitle the defendant to a charge on the lesser-included offense of
       manslaughter. . . .

Id. (emphasis added).

       In Schroeder, the defendant was charged with the murder of his wife by shooting

her with a firearm. Id. at 399. The defendant called 911 and told the operator that he and

his wife had struggled over a gun and that it “went off a couple of times,” shooting his wife

in her chest. Id. The deceased was shot three times, two of the bullets entered her body

from the side, and one from the back. Id. The .357 pistol contained five spent shells and

one unfired cartridge. Id. The appellant told one of the officers that “it was an accident”

and that he "did not mean to [shoot her].” Id. The defendant testified he was arguing with

his wife when she presented the pistol. They struggled, he blacked out or something, and

couldn’t remember what happened. Id. The State questioned:

       Q:    Do you know anything of what happened when you walked out of the
       bedroom and she was standing there with the gun and you all started
       wrestling to the time you all ended up and you were on top of her at the front
       door? Do you remember-can you recall anything?

       A:    I remember we was wrestling around with the gun in the kitchen and
       then we hit the floor and then it was, like–I don't know. I ain't going to say–
       I guess I blacked out or something. I don't know. I don't remember.

                                             13
Id.

       In contrast, Mancha’s statement goes all the way through the episode in detail—from

hearing the planning of the robbery with Wendy and Ozzy, to entering the trailer and holding

Cahue down, to the exit of the group and burning the gloves and sweater. He recounted

wrestling with Cahue, striking him with his fists, trying to hold him down, attempting to tie

him up, trying to calm him down, details of wounds he received, Wendy’s attack, punching

him some more in the face and head, articles that were stolen, dragging Cahue into the

bathroom, burning the sweater and gloves, et cetera.                   Unlike Schroeder, Mancha

acknowledged striking Cahue. Furthermore, the evidence indicated Cahue was alive when

the group left, and thus Mancha could not have known that he or Wendy or anyone else had

killed Cahue. While Mancha’s statement included the self-serving or even rhetorical

comment “I don’t remember a lot[,]” that isolated sentence is belied by the extreme detail

of the lengthy confession. See Enriquez, 21 S.W.3d at 278. Our situation is unlike

Schroeder where a man struggles with his victim over a .357, and it somehow goes off at

least three times, hitting the victim in the side two times and once in the back, and the

defendant “blacked out or something.”4

       The State maintains there is no evidence that when Mancha was hitting Cahue he

was behaving recklessly, and did not knowingly or intentionally cause Cahue’s death. The

record shows otherwise. A defendant’s statement must be considered in the context of the

entire record to determine whether there was evidence from which the jury could conclude



       4
         As quoted above, Schroeder states that the defendant there was “com pletely incognizant” of what
occurred in the shooting. Schroeder, 123 S.W .3d at 401.

                                                  14
that a defendant was only guilty of manslaughter. Wesbrook, 29 S.W.3d 113-14; Enriquez,

21 S.W.3d at 278. The State seems to agree that members of the group only intended to

rob Cahue, but that the struggle escalated, and at some unknown time Mancha changed

his intent to murder. The argument that Mancha’s intent changed is not established by the

record. Rather, a pattern emerged showing that Cahue originally resisted the intruders and

then lowered his resistance. This seems to have happened several times while Mancha

insisted: “I kept holding onto the old man trying to calm him down.” After Wendy kicked

Cahue, Cahue began struggling again, so Mancha punched him some more in the face and

head. According to this segment of Mancha’s statement:

       I punched him some more in the face and head. I don’t remember a lot. He
       was bleeding a lot from head and face. [sic] We grabbed him by his arms and
       dragged him to the back room. We just took off after that in the Jeep with the
       two gay guys. When I left the old boy was still breathing I did not think that
       he was going to die.

       Jose testified the group went to rob Cahue. He saw Mancha and Alfredo holding

Cahue down. The whole time–said here to be thirty minutes–Mancha was “holding him.”

Mancha did hit Cahue in the face with his hand more than once. Jose said he was afraid

when they left Cahue was going to come out, fight and give chase, although Jose did not

actually see him get up. None of the State’s eye-witnesses’ testimony supports the State’s

theory on appeal that Mancha at some point escalated his intent from what can be rationally

viewed as reckless conduct to intentional homicide.

       Contrary to the State’s focus on a single sentence in Mancha’s extensive statement,

we are bound to consider all of the evidence presented by the State and the defendant in

determining whether the trial court erred in failing to give a charge on the lesser-included

offense. Jones v. State, 900 S.W.2d 103, 105 (Tex. App–Houston [14th Dist.] 1995, no


                                            15
pet.). In making this assessment, we are cognizant that if evidence from any source raises

the issue of a lesser-included offense, a charge on that offense must be included in the

court's charge if requested. Id. (citing Saunders v. State, 840 S.W.2d at 391). The

determination of whether a defendant is entitled to a jury charge on a lesser-included

offense must be made on a case-by-case basis according to the particular facts. Livingston

v. State, 739 S.W.2d 311, 336 (Tex. Crim. App. 1987). The credibility of the evidence and

whether it conflicts with other evidence or is controverted may not be considered in

determining whether an instruction on a lesser-included offense should be given. Banda

v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994). Regardless of its strength or

weakness, if any evidence raises the issue that the defendant was guilty only of the lesser

offense, then the charge must be given. Saunders, 840 S.W.2d at 391; O'Brien v. State,

89 S.W.3d 753, 755 (Tex. App.–Houston [1st Dist.] 2002, pet ref’d).

       The State next cites Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).

Bignall holds:

       The correct test, as stated in Aguilar v. State, 682 S.W.2d 556 (Tex. Crim.
       App. 1985), is as follows: “If a defendant either presents evidence that he
       committed no offense or presents no evidence, and there is no evidence
       otherwise showing he is guilty only of a lesser-included offense, then a charge
       on a lesser-included offense is not required.” Id. at 558.


Id. Unlike Aguilar, Mancha did not assert that no crime was committed. And like Bignall,

Mancha’s statement, the circumstances surrounding the crime by the group of teens, and

the State’s own eyewitness testimony presented evidence of the lesser-included offense.

See id. (holding that defendant is entitled to an instruction on a lesser-included offense if

evidence from any source raises the issue).

       Finally, the State argues from Arnold, 234 S.W.3d at 671-72 (that fragments of

                                             16
testimony “cannot be plucked out of the record and examined in a vacuum.”) Arnold held

that any inference that the gun discharged accidentally was negated by appellant's

testimony on cross-examination describing his state of mind. Id. On the stand, Arnold

testified that he intentionally or knowingly fired the gun at the victim and that it was not an

accident. He also stated:

       State:        So, you shot him and you meant to do it, right?

       Appellant:     Yes, sir.

Id.   Arnold is very much akin to Wesbook and Mathis discussed above. Similarly, we

conclude that the cited authority is not specifically applicable to this case.

       The mental state must generally be inferred from the accused behavior and the

circumstances but the acts relied upon as proving the mental state need not be the same

act constituting the offense. George E. Dix & Robert O. Dawson, 41 TEXAS PRACTICE:

CRIMINAL PRACTICE     AND   PROCEDURE § 20.171 (2d ed. 2001).            The mens rea for

manslaughter is recklessness. Richie v. State, 149 S.W.3d 856, 858 (Tex. App.–Amarillo

2004, no pet.). Because manslaughter is a result of conduct offense, the definition of the

culpable mental state of recklessness is limited to the result of conduct. Perez v. State, 216

S.W.3d 855, 857 (Tex. App.–Corpus Christi 2006, pet. ref'd)(citing Cook v. State, 884

S.W.2d 485, 491 (Tex. Crim. App. 1994)). In Richie, the court explained:

       [A]nd, while, according to the statutory definition of reckless, one may be
       reckless regarding the circumstances surrounding his conduct or the result of
       his conduct, [TEX . PENAL CODE ANN .] § 6.03(c), the crime defined in § 19.04(a)
       simply encompasses recklessness viz the result of accused's conduct. In
       other words, the legislature, in defining manslaughter, was not concerned with
       whether the accused was aware of the circumstances surrounding his
       conduct but rather with whether his conduct resulted in death. Id. at 858
       (emphasis added).

Richie, 149 S.W.3d at 858. Therefore, with regard to the offense of manslaughter, the

                                              17
applicable part of section 6.03(c) should read: "A person acts recklessly, or is reckless,

with respect to . . . the result of his conduct when he is aware of but consciously disregards

a substantial and unjustifiable risk that the . . . result will occur." Schroeder, 123 S.W.3d

at 400-01. For purposes of our analysis, we assume Cahue was killed as a result of

Mancha’s conduct.5 Whether the charge is murder or manslaughter, the result is identical:

Cahue died. There is no direct evidence that Mancha intentionally or knowingly killed

Cahue.6

        The circumstantial evidence, eyewitness testimony, and Mancha’s stated intent to

only restrain Cahue on the floor and specifically not to kill him, raised evidence of the lesser-

included offense of manslaughter.               Accordingly, the trial court erred in refusing the

requested instruction on manslaughter.

       The dissent states the distinction between a reckless mental state and an intentional

or knowing one is irrelevant if the defendant was indicted for an offense for which he could

be found guilty under section 19.02(b)(3) (felony murder). See TEX . PENAL CODE ANN .

§19.02(b)(c). However, the dissent also states that the jury was not instructed under this

section and therefore the court should apply the Malik test for evidentiary sufficiency, using

a hypothetically correct charge vis a vis the jury charge actually given. See Malik, 953

S.W.2d at 240). We disagree.


        5
          Other plausible causes of the resulting hom icide, were the blows and kicks to the head and body
by W endy or others. During closing argum ent, defense counsel suggested that it was Ozzy and Jay, not
Mancha, who had a m otive to kill Cahue. Cahue knew Ozzy and Jay, but not Mancha. It was Ozzy and Jay
who needed the m oney and set up the robbery. Cahue was m oved from the place Mancha left him and
apparently one or m ore persons returned and cleaned up the trailer with a m op that could not be found during
the investigation. Counsel argued that was probably when Cahue was killed. W hile no DNA evidence was
found on Mancha, blood was found on another accom plice’s shoe. Multiple rib fractures found on Cahue
were likely caused by kicks to Cahue’s body by others, not from Mancha’s blows to the head. The court’s
charge alternately included W endy as the person who intentionally killed Cahue.

        6
            W e are not suggesting evidentiary insufficiency, nor was that issue raised.

                                                      18
        First, no authority is cited for the extension of Malik into the question of whether or

not a lesser included charge should be given. Even the State acknowledges that the

second step in the lesser-included offense analysis is a question of fact and asks whether

the evidence actually presented at trial supported giving the instruction to the jury. See Hall

v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007) (holding a defendant is entitled to an

instruction on a lesser-included offense where the proof for the offense charged includes

the proof necessary to establish the lesser-included offense and there is some evidence in

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

only of the lesser-included offense)7.

       Remarkably, the “hypothetically correct charge” was given to the jury. The jury was

charged to find Capital Murder if: (1) Mancha intentionally caused the death of Cahue while

committing or attempting to commit robbery; or (2) Wendy intentionally caused the death

of Cahue by striking Cahue when Wendy was committing or attempting to commit robbery

and Mancha knew of her intent, and encourage her; or (3) Mancha conspired with the group

to commit robbery and Wendy intentionally caused the death of Cahue. The jury rejected

the Capital Murder charge. Instead the jury found Mancha guilty of the lesser included


        7
            Article 37.09 clearly delineates an offense is a lesser included offense if:

  (1) it is established by proof of the sam e or less than all the facts required to establish the com m ission of
the offense charged;

  (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the
sam e person, property, or public interest suffices to establish its com m ission;

   (3) it differs from the offense charged only in the respect that a less culpable m ental state suffices to
establish its com m ission; or

  (4) it consists of an attem pt to com m it the offense charged or an otherwise included offense.   TEX . CODE
CRIM . P.    ART . 37.09, Vernon’s (2008).

        The dissent does not address how it would com ply with this article of the code of crim inal procedure.

                                                       19
offense of Murder which was given in the charge as follows:


      “If you find from the evidence beyond a reasonable doubt that on or about
      AUGUST 6, 2008, in Hidalgo County, Texas, the Defendant, MICHAEL
      ANTHONY MANCHA, did intentionally or knowingly cause the death of
      MIGUEL CAHUE by stroking the victim with his hand or kicking the victim with
      his foot or striking the victim with an object unknown to the Gand Jurors, but
      you have a reasonable doubt as to whether the Defendant was then and
      there engaged in the commission of robbery of MIGUEL CAHUE at the time
      of the said striking with his hand or kicking with his foot or striking with an
      object unknown to the Grand Jurors, if any, then you will find the Defendant
      guilty of MURDER, but not CAPITAL MURDER.8


      Finally, in its customary application, Malik may be utilized and due process not

necessarily violated when affirming a conviction in which the jury charge contains “extra,

unnecessary elements that are not supported by the evidence.” Id. at 238. On the other

hand, Malik recognized that due process prevents an appellate court from affirming a

conviction based upon legal and factual grounds that were not submitted to the jury. Id.

(citing McCormick v. United States, 500 U.S. 257, 269-70, 270 n. 8 (1991); Dunn v. United

States, 442 U.S. 100, 106 (1979); Cole v. Arkansas, 333 U.S. 196, 201-02,(1948)). Malik

is clearly inapplicable and its attempted application to this situation raises due process

concerns. See id.

                                                  V. Harm

      The erroneous refusal to give a requested instruction on a lesser-included offense

is charge error subject to an Almanza harm analysis. Saunders, 840 S.W.2d at 392; see

also Almanza, 686 S.W.2d at 171. Reversal is required if the error resulted in some harm

to the accused, “some” meaning “any.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.



       8
           A sim ilar m urder charge was given with W endy as the principal actor.

                                                     20
App. 1986); Almanza, 686 S.W.2d at 171. When the absence of the lesser-included

offense instruction leaves the jury with the sole option either to convict the defendant of the

charged offense or to acquit him, a finding of harm is essentially automatic because the jury

was denied the opportunity to convict the defendant of the lesser offense. Saunders v.

State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995). Such is the case here. There is a

distinct possibility that the jury, believing the defendant committed homicide, but given only

the option to convict him of the greater offense of murder, chose to find him guilty of that

greater offense rather than to acquit him of any homicide, even though it had a reasonable

doubt that he really committed the greater offense.9 Id. (citing Beck v. Alabama, 447 U.S.

625, 634, (1980)). Just as the jury rejected the State’s charge of capital murder in favor

of the lesser-included murder finding, the jury could reasonably have found the death of

Cahue was recklessly caused. Accordingly, we hold that under this record, Mancha

suffered some harm from the erroneous refusal to submit the lesser-included charge of

manslaughter.

                                               VI. Conclusion

       We reverse and remand for a new trial on all issues.

                                                               DON WITTIG
                                                               Justice


Dissenting Memorandum Opinion
by Justice Gina M. Benavides.
Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
14th day of April, 2011.


       9
           Like the holding in Jackson, the lesser charged offense of aggravated assault was not a viable
option to the jury, given that hom icide was the result of the crim e. See Jackson, 992 S.W .2d at 475.

                                                  21
