








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1675-10


ABRAHAM CAVAZOS, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS

EL PASO COUNTY



 Meyers, J., delivered the opinion of the Court in which Price,
Womack, Keasler, Hervey, Cochran, and Alcala, JJ., joined.  Keller, P.J.,
filed a concurring opinion.  Johnson, J., concurred. 

O P I N I O N


	A jury found Appellant, Abraham Cavazos, guilty of murder and imposed a
punishment of twenty-eight years' confinement and a $5,000 fine.  Cavazos v. State, 329
S.W.3d 838 (Tex. App.--El Paso 2010).  Appellant appealed, claiming that the trial court
erred by refusing his requested jury instruction on the charge of manslaughter.  Id. at 840. 
The court of appeals held that manslaughter is not a lesser-included offense of murder
under Texas Penal Code Section 19.02(b)(2) and thus the trial court did not err by failing
to instruct the jury on manslaughter.  Cavazos, 329 S.W.3d at 845.  The court of appeals
also concluded that, even if manslaughter were a lesser-included offense of the type of
murder charged in this case, there is no evidence in the record that if Appellant is guilty,
he is guilty only of manslaughter.  Id. at 846.  Appellant filed a petition for discretionary
review asking us to consider whether the court of appeals erred in holding that
manslaughter was not a lesser-included offense of the charged murder and in holding that
the trial court did not err by denying Appellant's request to instruct the jury on
manslaughter.  We agree with Appellant that the court of appeals erred in concluding that
manslaughter was not a lesser-included offense of the charged murder.  However,
because there is no evidence that would permit a rational jury to find that, if Appellant is
guilty, he is guilty of only the lesser offense, the court of appeals properly held that the
trial court did not err in denying Appellant's request for a jury instruction on
manslaughter.  We will affirm.
FACTS
	The victim, Rogelio Terrazas, was attending a birthday party for Camille Martinez
in December of 2004.  Camille had previously met Appellant at a night club and had
invited him to the party.  When Appellant arrived at the party wearing a pink and white
striped shirt, Terrazas and his friends teased Appellant about the color of his shirt and
called him a "faggot."  Terrazas also told Appellant he would show him something pink
and exposed his penis.  Terrazas then threw a plastic beer cup at Camille and Appellant,
who were sitting together on the couch.  Terrazas and Appellant exchanged words, and
Appellant stepped in front of Camille and shot Terrazas twice.  Appellant left the party
with his friends, and Terrazas subsequently died at the scene.  
	Several days later, Appellant called his friend, Leonor Salais, and told her that he
got drunk at a party and shot a guy who kept provoking him.  He also told her that he did
not mean to shoot anyone.  Appellant fled to Mexico, but was extradited back to the
United States three years later to stand trial.
	Appellant was charged with murder.  The indictment stated, in relevant part, that
"Abraham Cavazos . . . did then and there, with intent to cause serious bodily injury to an
individual, namely, Rogelio Terrazas, commit an act clearly dangerous to human life, to
wit: shooting Rogelio Terrazas with a firearm, that caused the death of the said Rogelio
Terrazas."
	A jury found Appellant guilty of murder in violation of Texas Penal Code Section
19.02(b)(2). (1)  The jury assessed punishment at 28 years' confinement in the Institutional
Division of the Texas Department of Criminal Justice and imposed a fine of $5,000.
Appellant timely appealed the conviction, contending that the trial court erred in denying
his requested jury instruction on the lesser-included offense of manslaughter.
COURT OF APPEALS
	The court of appeals concluded that manslaughter is not a lesser-included offense
of murder under Texas Penal Code Section 19.02(b)(2) and thus the trial court did not err
by denying Appellant's request to instruct the jury on manslaughter.  Cavazos, 329
S.W.3d at 845.  The court of appeals further held that, even if manslaughter were a lesser-included offense of the type of murder charged in this case, there is no evidence in the
record that if Appellant is guilty, he is guilty only of manslaughter.  Id. at 846.  According
to the court, regardless of whether Appellant intended to kill the victim, evidence shows
that he did intend to cause serious bodily injury to the victim by pointing the gun at him
and pulling the trigger, which is an act clearly dangerous to human life.
	The court of appeals stated that, similar to felony murder under Section
19.02(b)(3), the murder charged in this case does not require a culpable mental state for
causing the victim's death-it just requires intent to cause serious bodily injury.  The court
points out that neither Section 19.02(b)(2) nor the indictment required a culpable mental
state for committing an act clearly dangerous to human life.  In contrast, manslaughter
requires proof that Appellant recklessly caused the victim's death. (2)  Thus, the elements of
manslaughter are not established by proof of the same or less than all of the elements
required to establish the charged offense, nor does manslaughter differ from the charged
offense only in that a less culpable mental state is sufficient to establish its commission. 
See Tex. Code Crim. Proc. Ann. art. 37.09(1), (3). 
	Based on this analysis, the court of appeals overruled Appellant's issues,
concluding that manslaughter is not a lesser-included offense of murder under Section
19.02(b)(2), and that even if it were, there is no evidence that if Appellant is guilty, he is
guilty of only manslaughter.  Cavazos, 329 S.W.3d at 845-46.  ARGUMENTS OF THE PARTIES
	Appellant argues that the court of appeals erred when it held that manslaughter
was not a lesser-included offense of the charged murder.  Appellant contends that, under
the rationale advanced by the court of appeals, any killing using a deadly weapon can be
murder since no culpable mental state is required.  Appellant argues that Section
19.02(b)(2) does, in fact, require a culpable mental state-the intent to cause serious bodily
injury.  Appellant states that the court of appeals appears to say that he is guilty of felony
murder with the felony being the discharge of a firearm, but that is not how he was
charged or how the jury was instructed.  Appellant asserts that the cases cited by the court
of appeals do not support its holding and that there is no support in Texas law for
eradicating the mens rea requirement from Section 19.02(b)(2).
	Appellant argues that he was entitled to a jury instruction on the charge of
manslaughter because there was some testimony that he did not intend to kill anyone,
which rebuts or negates one of the crucial elements of murder.  Therefore, there was
evidence from which a rational jury could have found him guilty of only the lesser-included offense. 
	The State contends that the plain language of Section 19.02(b)(2) indicates an
intent to dispense with a culpable mental state as it relates to the result of the conduct- 
death of an individual.  Manslaughter requires a culpable mental state, recklessness, as to
the individual's death while murder under Section 19.02(b)(2) requires that the defendant
intend to cause serious bodily injury.  Because manslaughter requires proof of a culpable
mental state as to the result of the conduct and murder does not, the State argues that
manslaughter is not a lesser-included offense of murder under Section 19.02(b)(2), so it
was not error for the trial court to refuse the instruction.
	The State argues that Appellant mischaracterized the lower court's opinion.  The
State says that the court of appeals did not hold or conclude that Section 19.02(b)(2) lacks
a culpable mental state, rather it said that the mens rea for murder under Section
19.02(b)(2) is intent to cause serious bodily injury.  The clearly dangerous act under
Section 19.02(b)(2) is what causes the death, but the actor must intend to cause only the
serious bodily injury, not the resulting death.  The State concludes that evidence that
Appellant did not mean to shoot anyone does not indicate that he was guilty only of
manslaughter because his statement does not establish that he recklessly caused the
victim's death. 
CASELAW AND STATUTES
	Courts apply the Aguilar/Rousseau test to determine whether an instruction on a
lesser-included offense should be given to the jury.  Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007); McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App.
2006); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).  First, the court
determines if the proof necessary to establish the charged offense also includes the lesser
offense.  Hall, 225 S.W.3d at 535-36.  If this threshold is met, the court must then
consider whether the evidence shows that if the Appellant is guilty, he is guilty only of
the lesser offense.  The first step is a question of law, and it does not depend on the
evidence raised at trial.  In fact, it may be performed by the trial judge before trial
commences or, as here, on appeal.  In this step, the court compares the elements alleged
in the indictment with the elements of the lesser offense.
	Code of Criminal Procedure Article 37.09 (3) says that an offense is a lesser-included
offense if "(1) it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged;" or "(3) it differs from the offense
charged only in the respect that a less culpable mental state suffices to establish its
commission."  To determine whether an offense qualifies as a lesser-included offense
under Article 37.09(1), we use the cognate-pleadings approach.  Ex parte Watson, 306
S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh'g).  In Watson, we explained that
	An offense is a lesser-included offense of another offense, under Article
37.09(1) of the Code of Criminal Procedure, if the indictment for the
greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive
averments, such as non-statutory manner and means, that are alleged for
purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced.  Both statutory elements and any
descriptive averments alleged in the indictment for the greater-inclusive
offense should be compared to the statutory elements of the lesser offense.
If a descriptive averment in the indictment for the greater offense is
identical to an element of the lesser offense, or if an element of the lesser
offense may be deduced from a descriptive averment in the indictment for
the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the elements of the lesser
offense are contained within the allegations of the greater offense. 	
Id. at 273 (citations omitted).
	As we pointed out in Watson, the elements of the lesser-included offense do not
have to be pleaded in the indictment if they can be deduced from facts alleged in the
indictment.  In this situation, the functional-equivalence concept may be part of the lesser-included-offense analysis.  Using functional-equivalence, the court must "examine the
elements of the lesser offense and decide whether they are functionally the same or less
than those required to prove the charged offense."  McKithan v. State, 324 S.W.3d 582,
588 (Tex. Crim. App. 2010) (citing Farrakhan v. State, 247 S.W.3d 720, 722-23 (Tex.
Crim. App. 2008)). 
	An offense may also be a lesser-included offense if it differs from the charged
offense only in the respect that a less culpable mental state is sufficient to establish its
commission.  See Tex. Code Crim. Proc. Ann. art. 37.09(3).
	If the offense is a lesser-included offense under either Article 37.09(1) or (3), the 
court moves to the second step of the Aguilar/Rousseau test and considers whether there
is some evidence that would permit a rational jury to find that, if the appellant is guilty, he
is guilty only of the lesser offense.  Hall, 225 S.W.3d at 536; Mathis v. State, 67 S.W.3d
918, 925 (Tex. Crim. App. 2002).  This second step is a question of fact and is based on
the evidence presented at trial.  A defendant is entitled to an instruction on a lesser-included offense if some evidence from any source raises a fact issue on whether he is
guilty of only the lesser, regardless of whether the evidence is weak, impeached, or
contradicted.  Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985).  
ANALYSIS
	Applying the cognate-pleadings approach, we must determine whether the
indictment charging Appellant with murder under Section 19.02(a)(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
	(1) A person [Appellant]
	(2) recklessly
	(3) caused the death of an individual [Rogelio Terrazas]

We then ask the question posed by Article 37.09(1):
	Are the elements of manslaughter established by proof of the same or less
than all the facts required to establish the commission of murder under
Section 19.02(b)(2)?

Or the question posed by Article 37.09(3):
	Does manslaughter differ from murder under Section 19.02(b)(2) only in
the respect that a less culpable mental state suffices to establish its
commission?

Hall, 225 S.W.3d at 536.  
	Because there are allegations in the indictment that are not identical to elements of
the lesser offense, we apply the functional-equivalence test to determine whether
elements of the lesser offense are functionally the same or less than those required to
prove the charged offense.  McKithan, 324 S.W.3d at 588.  The differences here are the
following: Murder as alleged in the indictment included the intent to cause serious bodily
injury and the commission of an act clearly dangerous to human life (shooting with a
firearm) whereas manslaughter includes recklessness, which is a conscious disregard of a
substantial and unjustifiable risk regarding circumstances or results surrounding the
conduct.  The commission of an act clearly dangerous to human life, shooting with a
firearm, is the circumstance surrounding the conduct, which would be the same under
either murder or manslaughter.  This leaves us with the only difference being intent
versus recklessness.
	We disagree with the court of appeals's contention that the murder charged in this
case does not require a culpable mental state for causing another's death.  Cavazos, 329
S.W.3d at 845.  As we have previously held, the specific intent to kill may be inferred
from the use of a deadly weapon.  Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim.
App. 1986) (citing Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1984); Bell
v. State, 501 S.W.2d 137, 138 (Tex. Crim. App. 1973)).  Here, the indictment specified
that Appellant shot the victim with a deadly weapon, so it can be inferred that he had the
intent to cause the victim's death.  Although the only mens rea specified in Section
19.02(b)(2) is the intent to cause serious bodily injury and the statute does not add a
culpable mental state to the conduct that caused the death, murder under Section
19.02(b)(2) is a "result" crime.  See Lugo-Lugo v. State, 650 S.W.2d 72, 82 (Tex. Crim.
App. 1983) (op. on reh'g) (stating that the statute "focuses the mental state of the
individual on the particular result and not on the conduct that causes death"). (4)  And,
because the definition of recklessness is disregarding a risk that circumstances exist or the
result will occur, the reckless mens rea for manslaughter applies to either the nature of the
conduct or the result of the conduct. 
	We conclude 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.  See Tex. Code
Crim. Proc. Ann. art. 37.09(3).
	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, 639 S.W.2d 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 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 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.
	The evidence in question here is Leonor Salais's testimony that Appellant told her
that he did not mean to shoot anyone.  Appellant claims that there is no evidence that he
intentionally pulled the trigger and that Salais's testimony is evidence that he did not
mean to shoot anyone, which negates the intent element of the greater offense.  He says
pulling out a loaded gun in a room full of people is a reckless act and that shooting
directly at a person twice is still reckless as long as the evidence shows no intent to do so. 
The trial court concluded that testimony from a phone conversation that took place the
day after the shooting during which Appellant said he did not mean to shoot anyone does
not indicate that his conduct was reckless.  The trial court also noted that there was no
evidence to indicate that this was a reckless discharge of a firearm.  We agree.
	There was no evidence directly germane to recklessness.  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 evidence
here does not support a finding of recklessness and does not rise to level that would
convince a rational jury to find that if Appellant is guilty, he is guilty of only the lesser-included offense. 
	Without additional evidence supporting a finding of recklessness, Salais's
testimony alone is insufficient to require an instruction on the lesser-included offense of
manslaughter.  Because the facts did not raise manslaughter as a valid, rational alternative
to the charged offense, Appellant was not entitled to the requested jury instruction. 
	Appellant failed to meet the second prong of the Aguilar/Rousseau test because
there is no evidence that would permit a rational jury to find that, if Appellant is guilty, he
is guilty only of the lesser offense.  The court of appeals properly held that the trial court
did not err by denying Appellant's requested instruction on the lesser-included offense of
manslaughter. 
CONCLUSION
	The court of appeals improperly concluded that manslaughter is not a lesser-included offense of murder under Section 19.02(b)(2) as alleged in the indictment. 
Appellant demonstrated that manslaughter "differs from the offense charged only in the
respect that a less culpable mental state suffices to establish its commission," and thus
meets the requirements set out in Article 37.09(3) of the Code of Criminal Procedure.  
Although Appellant satisfied the first step of the Aguilar/Rousseau test, he was not
entitled to a lesser-included-offense instruction because there was no evidence raised at
trial that would permit a rational jury to find that, if Appellant is guilty, he is guilty only
of manslaughter.  The judgment of the court of appeals is affirmed. 
								Meyers, J.
Delivered: October 31, 2012
Publish
1. A person commits murder if he "intends to cause serious bodily injury and commits an
act clearly dangerous to human life that causes the death of an individual."  Tex. Penal Code
Ann. § 19.02(b)(2).  Unless otherwise noted, all future references to sections refer to the Texas
Penal Code. 
2. A person commits manslaughter if he "recklessly causes the death of an individual." 
Tex. Penal Code Ann. § 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.  The risk must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would exercise under all the
circumstances as viewed from the actor's standpoint."  Id. § 6.03(c).	
3. Unless otherwise specified, all future reference to Articles refer to the Texas Code of
Criminal Procedure. 
4. At the time Lugo-Lugo was handed down, murder by intent to cause serious bodily harm
was section 19.02(a)(2).  When definitions were added to 19.02(a), the statute in question
became section 19.02(b)(2), but the substance and wording of the statute remains unchanged. 
