      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00508-CR



                                Ashton Blake Salvato, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
         NO. 76778, THE HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Ashton Blake Salvato of the offense of manslaughter, see

Tex. Penal Code § 19.04, for fatally shooting his three-year-old daughter, and assessed his

punishment at confinement for 20 years in the Texas Department of Criminal Justice and a $10,000

fine, see id. § 12.33. On appeal, appellant challenges the sufficiency of the evidence. We affirm the

trial court’s judgment of conviction.


                                         BACKGROUND

               The jury heard evidence that appellant lived with Dustin Rhodes and Brittany Brown

in a house in Killeen, Texas. Appellant, who had recently been medically discharged from the Army,

kept firearms in the home, in the closet in his room: a pistol, a shotgun, and an AR-15 rifle, which

were always loaded. He was in the process of divorcing his wife, the mother of his three-year-old

daughter, C.J.S., and a court order regarding custody and visitation of their daughter was in place.
               On the weekend of April 17, 2015, appellant had three-year-old C.J.S. at his home

for his weekend visitation. On Saturday morning, Brown and Rhodes were in the living room, sitting

on the couch watching TV. Appellant was also in the room. C.J.S. was awake and had been in

the living room, but appellant had sent her to his room for a “time out” because she had been

crying and was “whiney.” For time out, C.J.S. was required to stand in the corner behind the door

of appellant’s room.

               At one point that morning, Brown, who was not feeling well, said something to the

effect of “Just shoot me, I feel horrible.” She expressed this sentiment aloud to no one in particular.

Appellant, who was standing at the edge of the couch, left the room and returned with his AR-15

rifle, which had a loaded magazine in it. He pointed the weapon at Brown’s head as she sat on the

couch. Brown told appellant that “it wasn’t funny” and pulled a blanket over her head to hide.

Appellant then pulled back the charging handle on the rifle, pushed off the safety mechanism, pulled

the trigger, and “dry fired” the weapon at her. Brown told appellant again that “it wasn’t funny.”

               Appellant left the living room, heading toward his room. Less than two minutes later,

Brown and Rhodes heard the “pop” of a gunshot coming from the direction of appellant’s room.

They then heard appellant screaming. He came into the living room carrying C.J.S., who had been

shot in the head. Appellant put C.J.S. down on the kitchen floor, stayed with her for less than a

minute, and then began pacing in the living room, crying and saying that C.J.S. was dead. Brown

went to her room, into one of the closets in her bathroom, and called 911. Brown and Rhodes both

spoke with the 911 operator and, during their conversation, indicated that the shooting was an

accident. While they were talking to the 911 operator, appellant retrieved his pistol from his



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bedroom, pointed it at his head as he paced, and said he was going to shoot himself. Rhodes

convinced him to put the weapon down.

               First responders, which included officers from the Killeen Police Department and

paramedics from the Killeen Fire Department, arrived on the scene within ten minutes of the 911

call. Although resuscitation efforts were made, testimony from these responders indicated that

immediately upon viewing C.J.S., it was “obvious” to them that her injury was “incompatible with

life.” The three-year-old was transported to the hospital where she was pronounced dead.

               At the scene, appellant told the police that he was “just messing around with the rifle

and it went off.” He then explained that the rifle discharged as he was “clearing” the weapon. In

his written statement to police later that day, appellant described the “joke” he played on Brown.

He said that “after the joke was done,” he pulled the charging handle back half way, “glanced in the

chamber,” and pulled the trigger. He stated that “a round went off and hit [his] daughter.” In his

statement, appellant denied intentionally shooting C.J.S. or aiming the rifle at her.

               Appellant was arrested for manslaughter but was subsequently indicted for capital

murder of a child under the age of ten. See Tex. Penal Code § 19.03(a)(8). At trial, the State

presented the testimony of 14 witnesses: C.J.S.’s mother, who provided general information about

her daughter and appellant’s visitation with C.J.S.; appellant’s two housemates, Brown and Rhodes,

who gave their account of the events that morning; the custodian of records for the county 911

center, who provided a recording of the 911 call; two paramedics from the fire department, who

described what they observed about C.J.S.’s condition when they arrived on the scene; the first

responding police officer, who testified about finding C.J.S. and his subsequent conversation with



                                                  3
appellant at the crime scene; four police detectives, including two detectives from the special victims

unit, who testified about their roles in the investigation; a firearms expert, who testified about the

functionality of appellant’s AR-15 and the casing recovered from the hallway; the medical examiner,

who testified about the autopsy of C.J.S. and his findings concerning her injuries and cause of death;

and a crime scene reconstruction expert, who provided testimony about his reconstruction of the

shooting incident. The defense presented no witnesses but presented appellant’s defense—that he

shot his daughter when “clearing” his rifle—through the State’s evidence.

               At the conclusion of the guilt-innocence phase, in the court’s jury charge, the trial

court instructed the jury on the charged capital-murder offense. However, the court also, sua sponte,

submitted an instruction on the lesser-included offense of manslaughter. The jury found appellant

guilty of manslaughter. After hearing further evidence during the punishment phase—including

testimony about prior instances when C.J.S. had bruises on her face because appellant purportedly

struck her in the face—the jury assessed the maximum punishment for appellant: a 20-year prison

sentence and a $10,000 fine.


                                           DISCUSSION

               In a single point of error, appellant challenges the sufficiency of the evidence

supporting his conviction. He maintains that the evidence at trial failed to prove, beyond a

reasonable doubt, that he had the requisite mental state when he fatally shot his daughter.

               Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State, 561 S.W.3d 174,

179 (Tex. Crim. App. 2018); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When

                                                  4
reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the

light most favorable to the verdict to determine whether, based on that evidence and the reasonable

inferences therefrom, any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex.

Crim. App. 2013); see Musacchio v. United States, — U.S. —, 136 S. Ct. 709 (2016); Johnson

v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018). In our sufficiency review we consider all the

evidence in the record, whether direct or circumstantial, properly or improperly admitted, or

submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex.

App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact

resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517

(Tex. Crim. App. 2009). We consider only whether the factfinder reached a rational decision.

Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Morgan v. State, 501 S.W.3d 84,

89 (Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to guarding

against the rare occurrence when a fact finder does not act rationally” (quoting Isassi v. State,

330 S.W.3d 633, 638 (Tex. Crim. App. 2010))). “The key question is whether ‘the evidence

presented actually supports a conclusion that the defendant committed the crime that was charged.’”

Morgan, 501 S.W.3d at 89 (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007)).




                                                  5
                The trier of fact is the sole judge of the weight and credibility of the evidence. See

Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29, 33

(Tex. Crim. App. 2016); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); see also Tex.

Code Crim. Proc. art 36.13 (explaining that “the jury is the exclusive judge of the facts”). Thus,

when performing an evidentiary-sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder. Arroyo, 559 S.W.3d

at 487; see Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we must

defer to the credibility and weight determinations of the factfinder. Cary v. State, 507 S.W.3d 750,

757 (Tex. Crim. App. 2016); Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). When

the record supports conflicting reasonable inferences, we presume that the factfinder resolved the

conflicts in favor of the verdict, and we defer to that resolution. Zuniga, 551 S.W.3d at 733; Cary,

507 S.W.3d at 757; Blea, 483 S.W.3d at 33; see Musacchio, 136 S. Ct. at 715 (reaffirming that

appellate sufficiency review “does not intrude on the jury’s role ‘to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts’” (quoting

Jackson, 443 U.S. at 319)). We must “determine whether the necessary inferences are reasonable

based upon the combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting

Clayton, 235 S.W.3d at 778); accord Arroyo, 559 S.W.3d at 487.

                Because factfinders are permitted to make reasonable inferences, “[i]t is not necessary

that the evidence directly proves the defendant’s guilt; circumstantial evidence is as probative as

direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be



                                                   6
sufficient to establish guilt.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013)

(citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); accord Tate v. State,

500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Nowlin, 473 S.W.3d at 317. The standard of review

is the same for direct and circumstantial evidence cases. Jenkins, 493 S.W.3d at 599; Nowlin,

473 S.W.3d at 317; Dobbs, 434 S.W.3d at 170.

               A person commits the offense of manslaughter “if he recklessly causes the death of

an individual.” Tex. Penal Code § 19.04(a). Manslaughter is a result-oriented offense; thus, the

defendant’s culpable mental state must relate to the result of his conduct—that is, the causing of the

death. Schroeder v. State, 123 S.W.3d 398, 399–401 (Tex. Crim. App. 2003). “A person acts

recklessly, or is reckless, . . . when he is aware of but consciously disregards a substantial and

unjustifiable risk that . . . the result will occur.” Tex. Penal Code § 6.03(c). The risk created “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.

               “Recklessness requires the defendant to actually foresee the risk involved and to

consciously decide to ignore it.” Williams, 235 S.W.3d at 751; see Tex. Penal Code § 6.03(c).

Whether the actor is aware of the requisite risk is a conclusion to be reached by the trier of fact

from all the evidence and the inferences drawn therefrom. Miller v. State, No. 03-07-00527-CR,

2010 WL 140390, at *5 (Tex. App.—Austin Jan. 13, 2010, pet. ref’d) (mem. op., not designated for

publication); In re E.U.M., 108 S.W.3d 368, 370 (Tex. App.—Beaumont 2003, no pet.); see Dillon

v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978) (observing that proof of culpable mental state



                                                  7
generally relies on circumstantial evidence and “whether one is aware of a requisite risk . . . is a

conclusion to be drawn through inference from all the circumstances by the trier of fact”). “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,

574 S.W.2d at 95. A defendant, however, need not be aware of the specific risk of another’s death

in order to commit manslaughter. Miller, 2010 WL 140390, at *5; Trepanier v. State, 940 S.W.2d 827,

829 (Tex. App.—Austin 1997, pet. ref’d).

               It is undisputed that appellant caused C.J.S.’s death by shooting her in the face with

his AR-15. Therefore, in light of the foregoing, we must examine the record for evidence that

appellant recklessly caused her death. Accordingly, we review the record for evidence that appellant

was subjectively aware of a substantial and unjustifiable risk that C.J.S. would die when he pulled

the trigger on his AR-15 rifle. See Tex. Penal Code § 6.03(c); Williams, 235 S.W.3d at 752–53.

               The firearms expert established that appellant’s weapon was fully functional. She

opined that just “clearing” the weapon would not cause it to discharge; the trigger had to be pulled

for the rifle to fire. The firearms expert also testified that if the rifle had a loaded magazine—and

the evidence reflects that appellant’s rifle had a loaded magazine in it that morning—in order to load

a round into the chamber, someone would need to pull the charging handle back just over three

inches. Although appellant first told police that he shot his daughter when the rifle discharged as

he was “clearing” it, in his written statement, appellant admitted that he pulled the trigger after he

pulled the charging handle back “half way.” He maintained, though, that he did not aim the rifle at




                                                  8
C.J.S. The evidence at trial, however, contradicted his claim to police that he did not point the rifle

at or toward his daughter.

                First, the autopsy conducted on C.J.S. revealed that she died of a single gunshot

wound to the head. The entrance wound was on the left side of her face where the left eye and bridge

of her nose met; the “pretty large exit wound” was on the left back side of her head. The medical

examiner testified that there was gunpowder stippling on the lower portion of the entrance wound.

He explained that these powder marks on her skin indicated that the barrel tip was close enough to

the skin surface when the weapon discharged that some of the gunpowder reached the skin surface

and struck her face. The medical examiner opined that the barrel tip was “very close . . . within a

few inches.”

                Second, as part of the investigation, a certified crime scene reconstructionist

reassembled the physical evidence from the crime scene (the door, the door frame, and the damaged

sheet rock where the bullet struck after exiting C.J.S.’s head) to discern the position of the rifle when

appellant shot C.J.S. The evidence from the crime scene revealed that there was gunshot residue on

the edge of the door and the door frame a few inches below the middle hinge. The evidence

indicated that C.J.S. was standing behind the door in front of the wall—just behind the hinged gap

between the door and the door fame—for her time out. Analyzing the physical evidence from the

crime scene, the gunshot wound to C.J.S. (the entrance wound, exit wound, and trajectory of the

bullet reflected in the autopsy report and photos), the expert reconstructed the shooting event using

a child mannequin matching C.J.S.’s height. Based on the reconstruction, the reconstruction expert

opined that, at the instant of discharge, the end of the muzzle of the AR-15 “had to be very, very



                                                   9
near, if not touching the opening of the door and the door frame” such that “the end of muzzle was

literally in the door opening”—that is, in the gap between the door and the door frame. He further

opined that, at the time of discharge, “the child would have been toward the door opening or could

have been 2 inches back” but “within that narrow range.”1

               Appellant argues that the evidence failed to show that he was aware of but

consciously disregarded an unjustifiable risk of death to his daughter. He maintains that the evidence

of the “dry fire” at Brown moments before showed that he “falsely and tragically” believed “that

there was no risk that the gun was loaded” and thus believed “there was no risk of its discharge as

he ‘cleared’ the gun going back to his room.” However, his contention is premised on his claim that

the rifle discharged when he “cleared” it. While that was what he initially told the police, appellant

contradicted himself when he later admitted in his written statement that he deliberately pulled the

trigger—purportedly after he “cleared the gun” by pulling the charging handle back. In addition,

regarding his argument that the evidence showed that he believed the gun was not loaded, we note

that testimony and evidence at trial reflected that a loaded magazine was in the rifle. The issue that

appellant disputed in his statement to police was whether a round was chambered. In his statement,

appellant said that he pulled the charging handle back “half way” and “glanced in the chamber an[d]

[he] didn’t see anything” so he pulled the trigger. However, testimony at trial, from several law

enforcement officers who were familiar with proper handling of an AR-15 with a loaded magazine


       1
          The photographs of the reconstruction depict the child mannequin with its head such that
the child is looking through the hinged gap of the doorway into the hallway. The reconstruction
expert offered two possible head positions: one with her head touching the wall and the door, the
other with her head touching the wall, the door frame, and the door. Either position has the child
“peeking through” the gap between the door and door frame into the hallway.

                                                 10
inserted, reflected that pulling the charging handle back was to ensure a round was chambered before

firing, not the way to check if the chamber was empty. In addition, further testimony, including

testimony from Rhodes, indicated that to “clear” a weapon, you first remove the magazine.

               Moreover, appellant’s contentions on appeal assume that the jury accepted his version

of the incident. However, appellant gave contradicting statements to police about the circumstances

under which he killed C.J.S. The jury, as fact finder, was free to assess appellant’s credibility (or

lack thereof) and was free to consider the conflicts raised by his statements to police in connection

with the other evidence at trial—including the evidence regarding placement of the rifle in close

proximity to his daughter’s face when he pulled the trigger—and resolve those conflicts against him.

That is, the jury was free to reject appellant’s self-serving statements indicating that he did not

believe the rifle would fire a round when he pulled the trigger or that he was not aiming at or toward

his daughter when he pulled the trigger. We also note that, in considering the issue of whether

appellant was aware of but consciously disregarded the risk to his daughter, the jury was entitled to

consider appellant’s statements—and, indeed, all of the evidence at trial—in light of appellant’s

military training regarding firearms and his experience with them, which the jury could have

reasonably inferred from the evidence of his service in the Army.

               Appellant dismisses the reconstructionist’s evidence concerning the rifle’s position

at the time of the shooting, contending that the jury rejected the evidence concerning the positioning

of the rifle and the placement of its muzzle in close proximity to C.J.S. at the time of discharge

because the jury did not find appellant guilty of capital murder (the intentional or knowing killing

of C.J.S.). However, it is equally plausible that the jury believed the evidence regarding the position



                                                  11
of the weapon when appellant pulled the trigger and shot C.J.S. but thought that appellant aimed the

weapon at C.J.S. and pulled the trigger without the intent or knowledge to cause her death. As

appellant acknowledges, the evidence showed that mere moments before shooting his daughter,

appellant “dry fired” the weapon at Brown as he pointed it directly at her head. The evidence also

showed that C.J.S. was looking out of the gap between the door and door frame—that is, peeking

through toward appellant and the rifle—when she was shot. The evidence of C.J.S.’s injuries further

showed that appellant fired the weapon when it was in close proximity to—perhaps only inches away

from—his daughter’s face. The jury could have made the reasonable inference from the evidence,

including the position of the rifle and its proximity to C.J.S., that appellant fired the weapon at his

daughter without the intent to kill her but did so recklessly, perhaps to scare her as a “joke” just as

he did with Brown. See Evans v. State, 202 S.W.3d 158,163 (Tex. Crim. App. 2006) (“Although

the parties may disagree about the logical inferences that flow from undisputed facts, ‘[w]here there

are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly

erroneous.’” (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985))).

               Viewing the evidence in the light most favorable to the verdict, we conclude that from

the cumulative evidence presented at trial and the reasonable inferences from it, the jury could have

found that appellant, a former soldier in the Army, was aware of but consciously disregarded a

substantial and unjustifiable risk that his daughter would die when he held his AR-15 rifle in close

proximity to his daughter’s face, manipulated the charging mechanism of the rifle, which had a

loaded magazine inserted, by pulling the charging handle back “half way,” and then pulled the trigger

after merely “glancing” in the chamber to check for a round before firing. See Williams, 235 S.W.3d



                                                  12
at 752 (“Those who are subjectively aware of a significant danger to life and choose, without

justification, to engage in actions (or in some cases inactions) that threaten to bring about that danger

have made a calculated decision to gamble with other people’s lives.” (quoting James Gobert,

Searching for Coherence in the Law of Involuntary Manslaughter: The English Experience,

6 Crim. L.F. 435, 454 (1995))). Thus, we conclude that a rational factfinder could have found

beyond a reasonable doubt that appellant recklessly caused his daughter’s death. Accordingly, we

conclude that the evidence is sufficient to support appellant’s conviction for manslaughter. We

overrule appellant’s sole point of error.


                                            CONCLUSION

                Having concluded that the evidence is sufficient to support appellant’s conviction for

manslaughter, we affirm the trial court’s judgment of conviction.



                                                __________________________________________
                                                Edward Smith, Justice

Before Justices Baker, Triana, and Smith

Affirmed

Filed: March 6, 2019

Do Not Publish




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