                              owts
                 NO.



                               IN   THF
  ,,,,„,                                                   RECEIVED SN
0 R!GINAL      C0URT 0F CRIMINAL APPEALS                 COURT OF CRIMINAL APPEALS
                         AUSTIN, TEXAS                        MAR 12 2015


                                                          Abel Acosta, Clerk
                         ON APPEAL FROM

                  179th DISTRICT COURT

                  HARRIS COUNTY, TEXAS
             TRIAL COURT CAUSE NO.         1402764
                                                              FILED IN
                                                      COURT OF CRIMINAL APPEALS
                                and

                        COURT OF APPEALS                     MAR 12 2915
                              for   the
                 FIRST DISTRICT OF TEXAS                  Abel Acosta' Clerk
                       NO.   01-14-00145-CR




            PETITION FOR DISCRETIONARY REVIEW



             ROMELLE MONTE HAWKINS V.         STATE




                                    ROMELLE MONTE HAWKINS, APPELLANT
                                    DARRINGTON UNIT
                                    59 DARRINGTON RD.
                                    ROSHARON, TX 77583




                ORAL ARGUMENT REQUESTED
                             TABLE OF CONTENTS

PROCEDURAL HISTORY AND PARTIES                          .'••.     Ii
STATEMENT OF THE CASE '-•_ ....... v.:.      .                   iii

STATEMENT REGARDING QRALiiARGUMENT                               iii

INDEX OF AUTHORITIES ....... .... ..^                             iv

GROUND FOR REVIEW                                                  1
                    THE FIRST COURT OF APPEALS ERRED IN
              ITS REVIEW OF TRIAL COURT'S ABUSE OF DISCRETION
             IN REFUSING A JURY CHARGE FOR THE LESSER-INCLUDED
               OFFENSE OF CRIMINALLY NEGLIGENT HOMICIDE WHERE
              THE RECORD SHOWS:(A) EVIDENCE ESTABLISHING THE
              CHARGE AS A RATIONAL ALTERNATIVE,' AND (B) WHERE
              THE RECORD INDICATES THE JURY ASKED TRIAL COURT
                 (DURING DELIBERATIONS) IF THEY COULD FIND
                  LESSER OFFENSE INSTEAD OF MANSLAUGHTER.

QUESTION FOR REVIEW
               IN AN ABUSE OF DISCRETION REVIEW REGARDING
                INSTRUCTION ON A LESSER-INCLUDED OFFENSE,
                IS IT PROPER FOR THE REVIEWING COURT TO
              SUBSTITUTE ITS INTERPRETATION OF TESTIMONIAL
             EVIDENCE FROM THE RECORD FOR THAT OF THE JURY'S
               FIRST-HAND ASSESSMENT OF CREDIBILITY OF THE
               .-. WITNESS(ES) WHEN MAKING A DETERMINATION
              OF THE LESSER OFFENSE OF NEGLIGENT,HOMICIDEu. ,
                   AS A   RATIONAL ALTERNATIVE TO MURDER?

CONCLUSION


PRAYER                                                             5

CERTIFICATE OF SERVICE                                             6
                  PROCEDURAL HISTORY AND PARTIES

     Appellant was charged with murder (CR at". 9,)/, pled not guilty
and was tried by jury in the 179th District Court, Harris County;

Honorable Judge Kristin Guiney presiding;    trial counsel Victor

Wisner, and prosecutors Alan Curry and Cara Burton. Appellant

was found guilty of Manslaughter (RR 7:6) and sentenced to twenty-
three years confinement in TDCJ-ID.

     Timely notice of appeal was given and appellant counsel

Deborah Summers filed the appeal with the First Court of Appeals,

who Affirmed the conviction. Request for an extention of time

was filed with this Court, and the deadlina for filing this Petition

set for March 6, 2015.

     The Prosecuting Attorney for the State of Texas was forwarded

a copy of this Petition as required.

                         STATEMENT OF THE CASE

     The sole issue presented on appeal regards trial court's
denial of a lesser-included offense instruction on Negligent          '•

Homicide. Of the seven witnesses at trial,       two testified that

the Appellant had fired the shot(s) which killed the complainant.
Evidence was also presented that Appellant had not intended the

death of the complainant.

     Trial counsel requested the lesser-included offense instruction

on Negligent Homicide, but trial court denied the request. The

jury acquitted Appellant of Mucder, and during deliberations,
requested from trial court, "Can the manslaughter term be reduced?"
(CR at 217).



                                  li,
     Appellant counsel raised the issue of abuse of discretion

in trial court's denial of the request for lesser-included offense
of negligent homicide, and the First Court of Appeals analyzed

the claim applying the two-step test used in Texas reviewing

courts. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012);
Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App. 2011); Guzman

v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006). Both the

State and the First Court of Appeals agreed that the first prong

was met--that criminally negligent homicide is a lesser-included

offense to Murder. However,   the court ruled that, in light of

the evidence presented at trial, that criminally negligent homicide

was not a rational alternative available to the jury for consider

ation, citing Hall v. State, 225 S.W.3d 524, 535r36 (Tex.Crim.App.

2007).

     Appellant's argument is that the First Court of Appeals

allowed the.trial, court's.ruling to stand by interpreting the

written record of testimony at trial, thereby negating the jury's

first-hand assessment of the demeanor and credibility of the

witnesses. The question from the jur-ocrs to trial court (on top
of their acqui,tal on the charge of murder), emphasizes that the

jury did not believe Appellant possessed the requisite culpable

mental state for Murder,   and questioned whether he had the culpable

mental state for Manslaughter.

     Appellant argues that, given the wide latitude for the jury

to weigh the evidence presented, that inclusion of the lesser-

included offense was justified, and trial court erred in its

exclusion.

                     ORAL ARGUMENT REQUESTED


                                 in.
                          INDEX OF AUTHORITIES

CASES
BIGNALL, V. . STATE, 887 S.W.2D 21...              '...1, 2
(Tex.Crim.App. 1994)

CAVAZOS V. STATE, 382 S.W.3d 377                   .iii, 1
(Tex.Crim.App. 2012)

FOREST V. STATE,     989 S.W.2d 365                       1
(Tex.Crim.App. 1999)

GUZMAN V. STATE, 188 S.W.3d 185                     iii, 1
(Tex.Crim.App. 2006)

HALL V. STATE, 225, S.W. 3d ^524, .                .iii, .1
(Tex.Crim.App. 2007)

MONTGOMERY V. STATE,,:369 S.W.3d 188                      3
{Tex.Crim.App. 2012)

SWEEP V.   STATE,   351 S.W.3d 63...                      1
(Tex.Crim.App..2011)

TRUJILLO V. STATE,     227 S.W.3d 164                     3
(Tex.App.--Houston [1st Dist.] 2006, pet. ref'd)

STATUTES

Tex. Penal Code Ann. § 19.05(a) (Vernon 2011)             2




                                      IV.
                             ground restated

   the first court of appeals erred in review of trial court's
  abuse of Discretion in refusing a jury charge for the lesser-
    included offense of criminally negligent homicide where the
     record shows: (a) evidence establishing the charge as a
     rational alternative, and (b) where the record indicates
    the jury asked trial court (during deliberations) if they
    could find for the lesser offense instead of manslaughter.

synopsis of the first court's opinion
     The First Court applied "a two-step test to determine whether

appellant was entitled to an instruction on a lesser included

offense. Cavazos v. State, 382, S.W.3d 377, 382 (Tex.Crim.App.       ^~

2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App. 2011);
Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006)."
                                        o
Opinion at 6. The inquiry into the first prong--whether the defendant

is entitled to the instruction--"is ..a question of law" which
                         0


the Court concluded was met. Hall, at 536.     Opinion at 7.

     The second step "then requires that we determine whether

some evidence in the record would have permitted the jury to

rationally find that, if he., was' guilty, he was guilty' only of
the lesser-included offense." Hall, 536 and Opinion at 7. The

Court then notes the following:

(a) that "[a.jnything more than a scintilla of evidence may be
sufficient   to entitle the defendant to a lesser charge." Hall,

at 536; Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999).
(b) that "the evidence must establish the lesser-included offense

as a valid,, rational alternative to the charged offense." Id.
(c) that "it .is. not.enough that the jury disbelieve crucial evidence
pertaining to the greater offense..." Bignall v. State, 887 S.W.^d
21, 24 (Tex.Crim.App. 1994).
(d) and that "there must be some evidence directly germane, to

                                   1.
the   lesser-included offense      for :the .finder of    fact    to.consider

before a    lesser-included offense        instruction   is   warranted.       Id.

      The   First   Court   then concluded    that   trial court       did   not

err in denying Appellant's request regarding the lesser offense
of criminally negligent homicide because "Appellant did not present

evidence showing that he failed to perceive the risk created

by his conduct, and the evidence shows that he did perceive and

disregard that risk." Opinion at 12.
SCINTILLA OF EVIDENCE

      The State's central..witness,.:Ms,.Fallon, testified that there
was no animosity between Petitioner and the complainant and
that he would "not hurt someone he was with" (RR4 at 128, 135).
She.further, testified that Petitioner said, "what the fuck happened"
and was shaking after the fatal shot. (RR4 at 85, 96, 143-44).
Evidence that the Petitioner's shooting and killing of the .-.....,
complainant was unintentional arises from the State's own witness,
despite the fact that Ms. Fallon repeatedly stated she thought
the shot was intentional. (RR4 at 79-80, 84-86, 89, 92-93, 95-
96, 143). From the jury's acquittal of Petitioner on the charge
of murder, it is apparent the trier of fact chose to reject
Ms. Fallon's testimony regarding mens rea.:                   j   ..
VALID, RATIONAL ALTERNATIVE

        A person commits the offense of criminally negligent homicide

if he causes the death of an individual by criminal negligence.

Tex. Penal Code Ann. § 19.05(a) (Vernon 2011). Ultimately, "[tjhe
key to criminal negligence is not the actor's being aware of a

substantial risk and disregarding it, but rather it is a failure

                                      2.
of the actor to perceive the risk at all" created by his conduct.

Montgomery v. State, 369 S.W.3d 188, 193 (Tex.Crim.App. 2012);

Trujillo v. State, 227 S.W.3d 164, 168 (Tex.App.--Houston [1st

Dist.] 2006, pet. ref'd); Opinion at 9.
       Presented at trial is the Petitioner's statement, as testified

by Ms. Fallon ("what the fuck"), that provides evidence that he

had not perceived the potential consequence of his action (the

complainant stepping in front of the gun as he fired) though he
certainly 'should have perceived the risk his conduct created.

Trujillo at 168.

       This level of the actor's perception of the risk, or the

level of culpable mental state, finds basis within the record,

and falls within the purview of the trier of facts.   The Court

of Appeals states that the fact that the actor did not "intend
the result does "not automatically entitle him to a charge of criminal!

negligence." The .court further noted that "a defendant is not
entitled to a charge of criminally negligent homicide if the evidence

shows the defendant's awareness is such that he perceived the

risk his conduct created." Opinion at 10 (citing Truj illo).
       But evidence existed supporting both manslaughter and criminally

negligent homicide, evidence on the trier of facts was in a position

to cipher, having first-hand impression of the credibility of the

testimony.

THE JURY'S REJECTION OF CRUCIAL EVIDENCE

       The jury acquitted Petitioner of Murder. In so doing, the
jury rejected the State's theory and the contention of the State's
central witness that there was an..intent to murder the complainant.

An during deliberations, the jury queried the Court whether they
could convict Petitioner of a lesser charge. (CR at 217).

The factual basis for negligent homicide is the statement, or

excited utterance, ..of Petitioner just after the fatal shot, not

merely the rejection of crucial evidence.

GERMANE EVIDENCE


       It bears repeating that the statement and reaction of the

Petitioner provided evidence of his culpable mental state at the

time of the complainant's death. This is further supported by
the revelation during cross-examination of the State's central

witness (Ms. Fallon) that there was no animosity between complainant
and Petitioner, not did he have the proclivity to hurt someone

he was with. (RR4 at 85, 96, 143-44).

 DID THE COURT OF APPEALS SUBSTITUTE ITS: REVIEW OF THE TESTIMONIAL
        EVIDENCE FOR THAT OF THE JURY IN DECIDING/WHETHER
         THE LESSERfilNCIJJDED OFFENSE CHARGE WAS WARRANTED?

     It is Petitioner's contention that evidence existed to support

the lesser-included offense charge of criminally negligent homicider-

specifically the Petitioner's statement after the fatal..:;shot.:-

Testimonial evidence would lend support to the charge of Manslaughter,

or even Murder. But that evidence is testimonial, subject to

the trier of fact--the jury, not trial court, and not the Court

of Appeals. The jury was free to choose whether the Petitioner
had the 'requisite mental state to justify a conviction or acquittal

as to murder. They acquitted. They had the option of deciding

whether the requisite mental state for Manslaughter was present,
and they reacted with the question to 'trial court    as to whether

they could choose a lesser offense. It was not available to them,
not because there was no evidence to support the requisite mental
state, but because it had been denied by trial court as a lesser-

included offense.

     All the jury needed to find Petitioner guilty of criminally

negligent homicide is to believe the testimony regarding Hawkin's
reaction just after the shot, and not believe the testimony of

the other parties. The Court of Appeals disregards the options

available to the jury.,; making an ex post facto determination

based upon facts the jury had rejected.

                             CONCLUSION

     The trial court abused its discretion'-denying instruction:...

on the lesser-included offense of criminally negligent homicide

where there was evidence available to the jury to make a reasoned

determination when weighing the testimonial evidence presented

at trial. The First Court of Appeals erred in its review by

rendering a decision based on the written record devoid of the

first-hand assessment position of the jury in judging credibility.

                               PRAYER


     WHEREFORE,   PREMISES CONSIDERED, Petitioner prays- this Court

give Petitioner's pleadings full consideration, despite the short
comings of a layman-at-law's petition, and Grant this request

for discretionary review.

                                  /S/        ,00 /ttUW/tft
                       INMATE DECLARATION



     I, Romelle M. Hawkins, TDCJ-ID No. 1911528, being currently
incarcerated at the Darrington Unit, Brazoria County, Texas,
do hereby declare that a true and correct copy of the above and
foregoing Petition for Discretionary Review has been sent to
the following addresses, first-class postage prepaid, and placed
in the USPS authorized mail receptacle on this the   fS   day of
 ^dRphj            2015:
Court of Criminal Appeals
Supreme Court Building
PO Box 12308, Capitol Station
Austin, TX 78711

State Prosecuting Attorney
PO Box 12405, Capitol Station
Austin, TX 78711



                            /S/    flmUlO ) \Awm
Opinion issued December 4, 2014




                                   In The


                            Court of gppeafe
                                  For The

                        jftnrt Btetrtrt of Cexa*

                           NO. 01-14-00145-CR



               ROMELLE MONTE HAWKINS, Appellant
                                     V.

                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1402764



                       MEMORANDUM OPINION

     Appellant Romelle Monte Hawkins pleaded not guilty to the charged offense

of murder.1 A jury found Appellant guilty of the lesser-included offense of




     See Tex. Penal Code Ann. § 19.02 (Vemon 2011).
manslaughter2 and assessed Appellant's punishment at 23 years in prison. In one

issue on appeal, Appellant asserts that the trial court erred by refusing to instruct

the jury on the lesser-included offense of criminally negligent homicide.

      We affirm.


                                          Background

      On April 8, 2012, at around 11:00 p.m., Fallon Kiser went to a bar to meet

friends, including her date, Jerold Griffin, and her best friend, Katherine

Brownlow-Stewart, the complainant in this case. Appellant was also at the bar.

He was Katherine's date.


      The group stayed at the bar for a while and then went to a second club.

Fallon and Katherine were at the second club when, around 3:00 a.m., Jerold

decided that he wanted to leave. Although she wanted to stay at the club, Fallon

decided to leave with her date.


         Fallon and Jerold rode in the backseat of Jerold's vehicle, a white SUV.

Jerold's cousin, Devline Smallwood, was driving, and another acquaintance,

Cedric Jackson, rode in the front passenger seat. During the ride, Fallon and Jerold

started to argue. They both had been drinking alcohol that night, and Jerold was

drunk.




         See id. § 19.04 (Vernon 2011).
      Fallon got out of the vehicle and began walking along the road, which was in

an isolated area. Devline drove the SUV slowly along the road to keep pace with

Fallon. The men encouraged Fallon to get back in the vehicle, but she would not

comply. Jerold got out of the SUV and began walking with Fallon trying to

convince her to get back in the vehicle.    The two continued to argue as they

walked.


      Fallon called Katherine to come pick her up. Katherine arrived shortly after

Fallon called her. Katherine was driving her black SUV. Appellant was in the

front passenger seat.

      Fallon got into the backseat of Katherine's vehicle. Katherine and Jerold

began arguing, and Jerold walked toward Katherine's SUV in what Fallon later

described as an aggressive manner. Fallon saw Katherine reach under her driver's

seat to grab a gun, which Fallon knew Katherine kept in her vehicle, but Katherine

could not locate the weapon.

      As Jerold approached her SUV, Katherine opened her door, hitting Jerold in

the face. Katherine then got out of the vehicle and began hitting Jerold. Fallon

also got out of the SUV and went to assist Katherine in the physical altercation

with Jerold. The two women engaged in a physical fight with Jerold for about 10

to 15 minutes.
      The women were winning the fight when Devline approached to break it up.

He grabbed Jerold around the waist and tried to pull him away.

      At this point, the group was near the driver's side of Katherine's SUV. The

driver's side door and window were open. Appellant had never gotten out of

Katherine's vehicle and remained seated in the front passenger's seat.

      Without warning, the group heard a gunshot. It was Appellant; he had fired

a revolver from inside Katherine's SUV. Katherine told Fallon to "get down."

The two women ducked down by the vehicle.           Jerold and Devline ran away.

Cedric, who was further away, hid in the bushes. Ten to fifteen seconds passed.

Appellant fired the gun a second time. That shot hit Jerold in the arm as he ran

away. Some time passed, and Katherine and Fallon thought it was safe. Katherine

stood up and went to get in the driver's side of her vehicle. About five seconds

after she stood up, Appellant fired the gun a third time, shooting Katherine in the

head. Katherine fell into Fallon's arms, and they both fell to the ground.

      Fallon looked at Appellant and saw him holding the gun. He was shaking.

Fallon had heard Appellant say, "What the fuck happened?"

      Fallon begged Appellant to help Katherine. Instead, Appellant got into the

driver's seat of Katherine's vehicle and drove off. The police and paramedics were

called to the scene. However, Katherine died from the gunshotwound to her head.
      Fallon told the police that Appellant had shot Katherine and Jerold. Cedric

identified Appellant as the person he saw driving away from the scene.

      Later that day, Appellant went to a police station to inquire about Katherine.

Appellant was taken into custody, and he agreed to be interviewed. During the

video-taped interview, Appellant denied being at the scene and firing the gun.

      Appellant was indicted for the offense of murder.        During trial, Fallon

testified in detail to the events occurring before, during, and after the shooting.

She stated that Appellant was the person who shot Katherine. Fallon testified that,

when Katherine was shot, she had seen Appellant aiming the gun at Katherine's

head. She stated that the shots had not been fired rapidly; rather, appreciable time

had elapsed between each of the three shots. Fallon testified that Katherine had

been standing upright for five seconds trying to get into her vehicle when

Appellant shot her.

      Cedric also testified. He stated that, although he did not see who had fired

the shots, he saw Appellant drive away after the shooting. The investigating police

officers testified at trial, and the video-taped interview with Appellant was

admitted into evidence. The State further showed, through forensic evidence, that

Appellant had tested positive for gun residue on both his hands and his clothing.

The defense did not present any evidence.
      At the charge conference, the defense requested that the jury be instructed on

the lesser-included offenses of manslaughter and criminally negligent homicide.

The trial court granted the request to instruct the jury on the lesser-included offense

of manslaughter, but denied the request to instruct the jury on the offense of

criminally negligent homicide.

      When it returned its verdict, the jury found Appellant guilty of the offense of

manslaughter. Appellant pleaded true to an enhancement allegation found in the

indictment, indicating that he had previously been convicted of the felony offense

of felon in possession of a firearm. The jury assessed Appellant's punishment at

23 years in prison.

      This appeal followed. In one issue, Appellant asserts that the trial court

erred in denying his request to instruct the jury on the lesser-included offense of

criminally negligent homicide.

                       Lesser-Included Offense Instruction


A.    Standard of Review


      We apply a two-step test to determine whether appellant was entitled to an

instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382

(Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.

2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). We first

determine whether criminally negligent homicide is a lesser-included offense of
murder by comparing the statutory elements of the greater offense and any

descriptive averments in the indictment with the statutory elements of the potential

lesser-included offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524,

535-36 (Tex. Crim. App. 2007). This inquiry is a question of law. Hall, 225

S.W.3dat535.


      If this threshold is met, the second step then requires that we determine

whether some evidence in the record would have permitted the jury to rationally

find that, if he was guilty, the defendant was guilty only of the_ie_s^er-induded_

offense.   Id. at 536; Guzman, 188 S.W.3d at 188-89; Rousseau v. State, 855

S.W.2d 666, 673 (Tex. Crim. App. 1993). Anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a lesser charge, but the

evidence must establish the lesser-included offense as a valid, rational alternative

to the charged offense. Hall, 225 S.W.3d at 536; Forest v. State, 989 S.W.2d 365,

367 (Tex. Crim. App. 1999). Although the threshold showing required for an

instruction on a lesser-included offense is low, it is not enough that the jury may

disbelieve crucial evidence pertaining to the greater offense; there must be some
            1      '
evidence directly germane to the lesser-included offense for the finder of fact to

consider before a lesser-included offense instruction is warranted. Bignall v. State,

887 S.W.2d 21, 24 (Tex. Crim. App. 1994).

B.    Analysis
      Here, the State does not dispute that criminally negligent homicide is a

lesser-included offense of murder. See Saunders v. State, 840 S.W.2d 390, 391

(Tex. Crim. App. 1992) (holding that negligent homicide is a lesser-included

offense of murder). Thus, as briefed, the dispute in this case centers on whether

there is some evidence from which the jury could have rationally found that, if

Appellant was guilty, he was guilty only of the lesser offense of criminally

negligent homicide. At this step of the analysis, "the evidence must establish the

lesser-included offense as a valid, rational alternative to the charged offense."

Hall, 225 S.W.3d at 536.

      A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual or 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)(1), (2) (Vernon 2011). A person

commits manslaughter if he recklessly causes the death of another. See id. § 19.04

(Vernon 2011). A person commits the offense of criminally negligent homicide if

he causes the death of an individual by criminal negligence.        Id. § 19.05(a)

(Vernon 2011).

      The essential difference between murder, manslaughter, and criminally

negligent homicide is the culpable mental state required to establish each offense.
See Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). The Penal

Code defines the relevant culpable mental states as follows:

      (a) A person acts intentionally, or with intent, with respect to . . . his
      conduct when it is his conscious objective or desire to . . . cause the
      result.


      (b) A person acts knowingly, or with knowledge, with respect to a
      result of his conduct when he is aware that his conduct is reasonably
      certain to cause the result.


      (c) 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. 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.

      (d) A person acts with criminal negligence, or is criminally negligent,
      with respect to ... the result of his conduct when he ought to be aware
      of a substantial and unjustifiable risk ... or the result will occur. The
      risk must be of such a nature and degree that the failure to perceive it
      constitutes a gross deviation from the standard of care that an ordinary
      person would exercise under all the circumstances as viewed from the
      actor's standpoint.

TEX. PENAL CODE ANN. § 6.03(a)-(d) (Vernon 2011).

      "The key to criminal negligence is not the actor's being aware of a

substantial risk and disregarding it, but rather it is the failure of the actor to

perceive the risk at all" created by his conduct. Montgomery v. State, 369 S.W.3d

188, 193 (Tex. Crim. App. 2012); Trujillo v. State, 227 S.W.3d 164, 168 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref d). Evidence showing that a defendant
did not intend the result does not automatically entitle him to a charge on criminal

negligence. See Trujillo, 227 S.W.3d at 168. "Rather, the difference between

criminally negligent homicide and manslaughter is the culpable mental state of

criminal negligence for the former and recklessness for the latter."          Id.     A

defendant is not entitled to a charge of criminally negligent homicide if the

evidence shows that the defendant's awareness is such that he perceived the risk

his conduct created. Id.


      In support of his assertion that the jury should have been instructed on

criminally negligent homicide, Appellant asserts as follows in his appellate brief:

      There was substantial evidence that the shooting and killing of the
      complainant was unintentional and that the Appellant was trying to
      break up the melee that had started in front of him. Ms. Fallon
      testified that [Jerold] was getting more deadly and more aggressive
      and she would have pulled a gun on him that night if she had one.
      The fight had already lasted 10-15 minutes. Ms. Fallon admitted
      under cross examination that there was no friction between the
      complainant and the Appellant and that the Appellant would "not hurt
      someone he was with."          She further admitted that when the
      complainant was shot and killed, the Appellant said, "What the fuck
      happened" and was shaking. . . . There was further evidence that
      [Appellant's] eyesight was not good and the lighting conditions were
      only good.

(Record citations omitted.)

      While it may show that he did not intendto kill Katherine, the evidence cited

by Appellant does not necessarily show that he failed to perceive the risk of

pointing and firing a gun in the direction of four people, standing nearby him. See
Trujillo v. State, 227 S.W.3d at 168.     This is particularly true when the cited

evidence is viewed in the context of the other evidence in the record.          See

Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (concluding that

appellant's statement he did not intend to hit victim not evidence he is guilty only

of lesser included offense, particularly given the other evidence in the record that

he intended to kill victim).

      The evidence showed that Appellant fired the gun three times with a

significant pause between each shot. The second shot hit Jerold in the arm. A

sufficient amount of time passed, which led Katherine and Fallon to think that it

was safe to stand up. After Katherine stood up, another five seconds passed.

Appellant then shot her as she tried to get into her own vehicle in which Appellant

sat. Fallon testified that she saw Appellant aim the gun at Katherine's head.

      Even if the evidence could be viewed (1) as showing that Appellant was

trying to break up the fight between the two women and Jerold by frightening the

group or (2) as showing that Appellant was shooting at Jerold to protect the

women, such evidence does not raise a scintilla of evidence that Appellant did not

perceive the risk his conduct created. To the contrary, viewing the evidence in

such a manner would show that Appellant disregarded the risk, knew the risk of

firing a gun, or was choosing to exploit that risk. See Trujillo, 227 S.W.3d at 168

(concluding that brandishing a loaded gun to frighten people indicates awareness


                                         11
of a risk posed by a loaded gun); see also Jackson v. State, 248 S.W.3d 369, 372

(Tex. App.—Houston [1st Dist.] 2007, pet. refd) (holding that drawing handgun

from pocket in response to a threat does not alone raise an inference that appellant

was unaware of the risk posed by that conduct; instead, it indicates that the actor

was aware of the risk posed by the weapon and was choosing to exploit that risk).

      Because Appellant did not present evidence showing that he failed to

perceive the risk created by his conduct, and the evidence shows that he did

perceive and disregard that risk, the trial court did not err by denying Appellant's

request to instruct the jury on the offense of criminally negligent homicide. See

Trujillo, 227 S.W.3dat 168-69. We overrule Appellant's sole issue.

                                    Conclusion


      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice


Panel consists of Justices Keyes, Higley, and Brown.

Do not publish. Tex. R. App. P. 47.2(b).




                                           12
                                    JUDGMENT


                                 Court of gppeate
                            $ trtft JBtetrttf of Cexa*
                                  NO. 01-14-00145-CR


                      ROMELLE MONTE HAWKINS, Appellant

                                            V.


                           THE STATE OF TEXAS, Appellee

     Appeal from the 179th District Courtof Harris County. (Tr. Ct. No. 1402764).

       This case is an appeal from the final judgment signed by the trial court on February
10, 2014. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court'sjudgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.

       The Court orders that this decision be certified below for observance.


Judgment rendered December 4, 2014.

Panel consists of Justices Keyes, Higley, and Brown. Opinion delivered by Justice
Higley.
     ^

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