Affirmed and Opinion filed April 23, 2015.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-14-00016-CR

                   GERARD REGINALD LEASSEAR, Appellant
                                              V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 183rd District Court
                               Harris County, Texas
                           Trial Court Cause No. 1239125

                                      OPINION

      A jury convicted appellant Gerald Reginald Leassear of capital murder,1 and
the trial court assessed a mandatory punishment of life imprisonment without
parole.2 Appellant challenges his conviction on grounds that the trial court erred
by (1) granting the State’s request to excuse a venire member; (2) admitting
extraneous-offense evidence; and (3) failing to submit a jury instruction on the
      1
          See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2014).
      2
          See Tex. Penal Code Ann. § 12.31(a)(2) (Vernon Supp. 2014).
lesser-included offense of felony murder.3 We affirm.

                                         BACKGROUND4

         Jorge Davila drove his truck to a Houston nightclub on November 30, 2008.
He spent several hours at the club with friends. Davila and his friends walked to a
nearby restaurant after the club closed at 2:00 a.m. on December 1. He and his
friends returned to the nightclub parking lot around 4:00 a.m. Davila retrieved his
truck.

         Eduardo Martinez was among the group of friends that went to the nightclub
and walked to the restaurant on the night of November 30-December 1, 2008.
Martinez returned to the nightclub parking lot with Davila at 4:00 a.m. Martinez
was unable to start his car, and he asked his friends for help pushing his car to a
safer location in the parking lot.

         Davila exited his truck and left its engine running. Davila, Martinez, and
another friend, Patricia Fernandez, pushed Martinez’s car closer to the nightclub
building.

         Martinez testified that, as he and his friends pushed the car, he heard Davila
yell and run back towards his truck. Martinez then heard several gunshots. He
saw the flash from a gun’s muzzle light up the inside of Davila’s truck, and he saw
the silhouette of a shooter wearing a hooded jacket inside. Martinez testified that
he saw Davila fall to the ground before reaching his truck. Martinez then saw the
truck speed off. Martinez ran towards Davila, and found Davila to be bleeding
profusely.        Martinez administered aid until an ambulance arrived and rushed
Davila to a hospital. Police officers soon arrived on the scene. Martinez testified
         3
             See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2011).
         4
        Appellant does not challenge the sufficiency of the evidence supporting his conviction.
Therefore, we recite only those facts necessary to the disposition of this appeal.

                                                 2
that several officers guided him to a white car in the parking lot. The car was
unoccupied and its engine was running. Martinez testified that he did not know
when the white car had arrived at the parking lot.

      Fernandez also helped Martinez push his car towards the nightclub building
on December 1, 2008. Fernandez testified that, as she, Davila, and Martinez
pushed the car, she heard Davila yell and run away. Fernandez turned and saw
Davila at his truck. She then heard gunshots. She believed the gunshots to have
come from inside Davila’s truck. Fernandez then saw Davila hit the ground and
the truck speed away. Fernandez testified that she was not able to see the driver of
the truck as it sped away. She testified that she saw a white car in the parking lot
after the truck sped away. The car’s ignition was on.

      A Harris County assistant medical examiner testified that Davila died at the
hospital on December 1, 2008. The examiner determined Davila’s cause of death
to be multiple gunshot wounds, and the manner of his death to be homicide.

      The State indicted appellant for capital murder. The indictment alleged that,
on December 1, 2008, appellant, while in the course of committing and attempting
to commit the robbery of Davila, intentionally caused Davila’s death by shooting
him with a deadly weapon, namely a firearm.

      The jury found appellant guilty of capital murder, and the trial court assessed
a mandatory punishment of life imprisonment without parole. Appellant timely
appealed.

                                         JUROR EXCUSAL

      In his second issue, appellant contends that the trial court abused its
discretion in excusing venire member number 32.5

      5
          In the interest of clarity, we address appellant’s issues out of order.
                                                   3
I.      Background

        The trial court and the parties questioned the venire members during voir
dire.   Venire member number 32 did not speak or otherwise respond to any
question. After the court and the parties completed their questioning, the court
excused certain venire members for cause. Venire member number 32 was not
excused at this time.      The court then instructed the parties to exercise their
peremptory strikes. The parties exercised their strikes, and the court announced
the names of 12 venire members chosen to serve as jurors and one member chosen
to serve as an alternate juror. Venire member number 32 was among those chosen
to serve as jurors. The court then excused all venire members who had not been
chosen to serve.

        Venire member number 32 next approached the bench. He told the court
that his English was not very good and that he did not know if he would be able to
perform his duties as a juror.      The court informed the parties of the venire
member’s statement and allowed the parties to question venire member number 32.
The State questioned the venire member as follows:

        [THE STATE]: You just sat through a couple of hours voir dire?

        [VENIRE MEMBER NUMBER 32]: Yes.

        [THE STATE]: Were you able to understand the questions asked to
        you?

        [VENIRE MEMBER NUMBER 32]: I was able but the reason is that
        there is some kind of question that I get one and a little at the middle
        and the end, but some of the words that I don’t feel very comforting
        (sic) to —

        [THE STATE]: I show as a profession you are a medical records
        assistant.

        [VENIRE MEMBER NUMBER 32]: That’s correct.
                                           4
      [THE STATE]: With Memorial Hermann Health system?

      [VENIRE MEMBER NUMBER 32]: Yes.

      [THE STATE]: You’ve been doing that 14 years?

      [VENIRE MEMBER NUMBER 32]: Yes, that’s correct.

      [THE STATE]: Now, you heard both sides ask multiple times about
      any questions, anything that you needed to tell us, right?

      [VENIRE MEMBER NUMBER 32]: Yes.

      [THE STATE]: Do you feel if you sat on this jury, understanding the
      gravity of the case, right?

      [VENIRE MEMBER NUMBER 32]: Uh-huh.

      [THE STATE]: You know how serious the case is. Do you feel like
      you would not be able to follow the law?

      [VENIRE MEMBER NUMBER 32]: I would feel I wasn’t getting
      along with the questions.

      [THE STATE]: Were there legal concepts that you feel you weren’t
      able to get from either side?

      [VENIRE MEMBER NUMBER 32]: No. No, I don’t know what to
      say.

The State then asked the court to excuse venire member number 32 “given the
language barrier” because the case raised difficult concepts, including “DNA,
ballistics, and fingerprints.” Appellant argued in response that venire member
number 32’s English skills were sufficient for jury service. Appellant noted that
venire member number 32 had shown himself capable of communicating in
English and that he had filled out his jury questionnaire, which indicated he could
read and write in English.     The court deferred ruling on the issue until the
following Monday.

                                        5
      A different judge heard the case the following Monday. The court asked
venire member number 32 the following:

      THE COURT: Was there something that came up Friday during jury
      selection, some words you didn’t understand?

      [VENIRE MEMBER NUMBER 32]: Yes.

      THE COURT: You don’t remember what those were?

      [VENIRE MEMBER NUMBER 32]: No. That’s the — especially in
      this kind of case, I was feeling like I going — I’m going to — some
      words are — that may not be in my vocabulary.

      THE COURT: In normal conversation — you understand everything
      that I’m saying?

      [VENIRE MEMBER NUMBER 32]: Yeah.

      THE COURT: But when they were discussing some things on Friday,
      maybe some legal terms or something like that, you didn’t understand;
      is that what happened?

      [VENIRE MEMBER NUMBER 32]: Yes. When I watching TV I
      always put the closed caption instead of just be listening because
      sometimes I cannot catch everything.

      THE COURT: So is your concern when a witness is testifying that
      you may not understand some of what the witnesses are saying, or are
      you more concerned about what the lawyers are saying?

      [VENIRE MEMBER NUMBER 32]:               I’m concerning (sic) about
      everything like that.

      THE COURT: Everything. And do you think because of your
      concerns it would affect your ability to serve as a juror in the case?

      [VENIRE MEMBER NUMBER 32]: That’s what I was concerned.

The State again requested that the court excuse venire member number 32 based on
his limited ability to understand English. Appellant opposed the request. The

                                         6
court remarked that the jurors had not been sworn in and that an alternate juror was
available. The court then granted the State’s request, stating:

      Based on the case law provided to me by the State,6 I think it’s within
      my discretion to excuse [venire member number 32], and I am going
      to replace him with an alternate, . . . although he apparently is not
      automatically disqualified for not speaking the English language. But
      given what he told me, it could be problematic for him and it could be
      for the [c]ourt as well if he didn’t understand the [c]ourt’s charge.

The court excused venire member number 32, notified the alternate juror that she
would sit on the regular jury panel, and administered the required oath to the jury
members. See Tex. Code Crim. Proc. Ann. art. 35.22 (Vernon 2006). The case
then proceeded to trial.

II.   Analysis

      Appellant argues that the trial court abused its discretion in excusing venire
member number 32 because he was not disqualified under Texas Code of Criminal
Procedure article 35.16(a)(11).

      A trial court’s authority to excuse prospective jurors exists until the entire
jury is empaneled and sworn. Wright v. State, 28 S.W.3d 526, 533 (Tex. Crim.
App. 2000). Article 35.16(a)(11) provides that the State or the defendant can
challenge a prospective juror as incapable or unfit to serve on the jury for the
reason “[t]hat the juror cannot read or write.” Tex. Code Crim. Proc. Ann. art.
35.16(a)(11) (Vernon 2006). The requirement that a juror possess the ability to
write “‘is not satisfied by the ability of a proposed juror to write his name and
nothing more. The requirement contemplates that he shall be able to express his
ideas in writing.’” Allridge v. State, 762 S.W.2d 146, 165 (Tex. Crim. App. 1988)
(citing Hernandez v. State, 506 S.W.2d 884, 887 (Tex. Crim. App. 1974)). We

      6
          The record does not indicate the legal authority the State provided to the trial court.

                                                  7
review a trial court’s decision to excuse a venire member pursuant to Article
35.16(a)(11) for abuse of discretion. Flores v. State, 871 S.W.2d 714, 718 (Tex.
Crim. App. 1993).

      A trial court also “has broad discretion to excuse prospective jurors for good
reason.” Wright, 28 S.W.3d at 533 (trial court did not abuse its discretion in
excusing a prospective juror because her mother recently had died); see also Tex.
Code Crim. Proc. Ann. art. 35.03, § 1 (Vernon Supp. 2014) (authorizing a trial
court to discharge a prospective juror based on a sufficient juror excuse).
“[C]hallenges not based upon a ground specifically enumerated in Article 35.16
are addressed to the sound discretion of the trial judge.” Maldonado v. State, 998
S.W.2d 239, 248 n.14 (Tex. Crim. App. 1999); see also State v. Morales, 253
S.W.3d 686, 693 n.19 (Tex. Crim. App. 2008).

      The State did not request that the trial court excuse venire member number
32 pursuant to Texas Code of Criminal Procedure article 35.16(a)(11) for his
inability to read or write. Neither the State nor the trial court examined venire
member number 32’s reading and writing proficiency. The State requested that the
court excuse venire member number 32 “given the language barrier,” and the trial
court excused the venire member stating that he “apparently is not automatically
disqualified for not speaking the English language” but “it could be problematic
for him and . . . for the [c]ourt as well if he didn’t understand the [c]ourt’s charge.”

      In this instance, the court may have acted within its discretion in excusing
venire member number 32 for “good reason,” regardless of whether it could have
done so pursuant to Article 35.16(a)(11). See Wright, 28 S.W.3d at 533; Erazo v.
State, 93 S.W.3d 533, 535 (Tex. App.—Houston [14th Dist.] 2002), rev’d on other
grounds, 144 S.W.3d 487 (Tex. Crim. App. 2004) (“If a juror cannot understand
the routine words and concepts used in a trial, the juror may be excused.”); see also

                                           8
Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (appellate court must
uphold the trial court’s decision to excuse a venire member if it was correct under
any theory of law applicable to the case).

       In any event, we need not determine whether the trial court erred.
Assuming, without deciding, that the trial court erred in excusing venire member
number 32 pursuant to Article 35.16(a)(11) or for “good reason,” we disregard any
error because the record does not show that appellant was deprived of a lawfully
constituted jury.

       “[T]he erroneous excusing of a [venire member] will call for reversal only if
the record shows that the error deprived the defendant of a lawfully constituted
jury.” Jones, 982 S.W.2d at 394. A defendant has no right to have any particular
individual serve on the jury; rather, a defendant’s “only substantial right is that the
jurors who do serve be qualified.” Id. at 393.7 We presume that jurors were
qualified absent some indication in the record to the contrary. See Ford v. State,
73 S.W.3d 923, 925 (Tex. Crim. App. 2002).

       Appellant does not argue that the jurors who served in his case were
unqualified or that the jury that convicted him was otherwise unlawfully
constituted. Therefore, we hold that the trial court’s decision to excuse venire
member number 32, if error, was harmless. See Tex. R. App. P. 44.2(b). We
overrule appellant’s second issue. See Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009) (overruling appellant’s issue contesting the trial court’s
excusal of a potential juror for impartiality because there was nothing in the record

       7
         The analysis differs when a juror is excused based on race, sex, or views on the death
penalty. See Snyder v. Louisiana, 552 U.S. 472, 478 (2008); Gamboa v. State, 296 S.W.3d 574,
580 (Tex. Crim. App. 2009); Feldman v. State, 71 S.W.3d 738, 749 (Tex. Crim. App. 2002).
Appellant does not assert that venire member number 32 was excused based on any of these
reasons.

                                              9
to indicate that the jurors who served were unqualified); Jones, 982 S.W.2d at 393.

                            EXTRANEOUS-OFFENSE EVIDENCE

       In his third issue, appellant contends that the trial court abused its discretion
in admitting extraneous-offense evidence in violation of Texas Rules of Evidence
403 and 404(b).

I.     Background

       Appellant argued in his opening statement that the State could not produce a
single eyewitness who could identify appellant as the person who shot Davila on
December 1, 2008. Appellant repeated his argument at closing after the State had
failed to produce such a witness.            State’s witnesses Martinez and Fernandez
testified that they either saw or heard an individual shoot Davila from inside
Davila’s truck on December 1, 2008, and then drive away. Neither Martinez nor
Fernandez could identify the assailant.

       Appellant objected to the State’s introduction of evidence regarding an
armed robbery that occurred on December 9, 2008. The trial court overruled
appellant’s objection and admitted the evidence as permissible extraneous-offense
evidence.8


       8
          Appellant asserts in his appellate brief that he also objected to evidence of a police
chase on December 13, 2008, that resulted in appellant’s capture. The police chase commenced
when a man, who alleged that appellant had taken his car and driven away, flagged down a
passing police officer. The officer spotted the suspected stolen car and followed it; appellant was
driving the car. The officer signaled to appellant to stop after appellant had committed a traffic
violation. Appellant refused to pull over, and a high-speed chase ensued. Police officers
eventually subdued appellant and discovered a gun in the suspected stolen car. The State’s
forensic experts testified that their analysis of the gun and eight cartridge casings found in
Davila’s truck after it was recovered showed the casings to have been discharged from the gun
found in the suspected stolen car appellant was driving on December 13, 2008. Appellant
objected to the introduction of evidence regarding the suspected stolen car in which appellant
was apprehended on December 13, 2008. He requested that the court limit testimony and
evidence on the matter, stating: “I would ask the Court to instruct [the State] to just start from
                                                10
       Lamahesha Albert testified that, on the morning of December 9, 2008, she
parked her car outside a department store in west Houston. She arrived before the
store opened at 9:00 a.m., and sat in her car talking on the phone. A gold car
pulled up beside Albert. A man exited the car, opened Albert’s passenger-side
door, and pointed a gun at Albert’s face. He demanded that she exit the vehicle.
Albert complied and ran to the department store for help. The man then drove off
in Albert’s car, leaving behind the gold car.

       Albert testified that the man who robbed her wore a black hooded sweatshirt
and that the hood was not pulled over the man’s head. At trial, Albert identified
the man who robbed her as appellant.

       The State called several police officers and forensics experts who described
evidence found at the December 1, 2008 and December 9, 2008 crime scenes. The
State’s witnesses testified to the following: (1) the white car at the scene of
Davila’s shooting was a Dodge Stratus; (2) the gold car at the scene of Albert’s
robbery was a Dodge Intrepid; (3) a Dodge Stratus and a Dodge Intrepid are
similar models, and both models are easy to steal; (4) the steering columns on both
the Dodge Stratus and the Dodge Intrepid were torn away, which suggested the
cars had been stolen; (5) an easily disposable cell phone was found inside Davila’s
truck once it was recovered; (6) an easily disposable cell phone was found inside

the issue of when the Harris County deputy sees the traffic violation or sees the information that
corroborates that this car has been somehow involved in a robbery and starts chasing it and then
talks about arresting the defendant and talks about recovering the pistol.” The trial court agreed
and refused to allow the State to question the individual whom appellant allegedly robbed on
December 13, 2008. The court also instructed the State to begin questioning the police officer
who had followed and arrested appellant from the point at which his attention was drawn to the
suspected stolen car, and not earlier. Appellant complains on appeal that: “The December 13th
police chase bore no similarity to Davila’s shooting.” We hold that appellant has not preserved a
complaint regarding the introduction of evidence related to the December 13, 2008 police chase
because he did not object to the introduction of that evidence in the trial court. See Tex. R. App.
P. 33.1; Tex. R. Evid. 103.

                                                11
the gold Dodge Intrepid; and (7) the recovered cell phones shared 19 contacts.
Additionally, the State introduced maps showing the locations of the December 1,
2008 and December 9, 2008 crime scenes. The maps showed that both crimes
occurred in west Houston; the scene of Albert’s robbery was several miles directly
north of the scene of Davila’s shooting.9

II.      Analysis

         Appellant contends that the trial court abused its discretion by admitting
evidence of the December 9, 2008 robbery of Albert in violation of Texas Rules of
Evidence 404(b) and 403 because the charged offense and the extraneous offense
were not similar enough and the probative value of the extraneous-offense
evidence was substantially outweighed by the danger of unfair prejudice. The
State counters that the extraneous-offense evidence was admissible to prove
appellant’s identity as Davila’s assailant; the State also argued that the evidence
was more probative than unfairly prejudicial because the evidence rebutted
appellant’s argument that the State could not prove the identity of Davila’s
assailant without a positive eyewitness identification of the individual.

         Texas Rule of Evidence 404(b) provides:               “Evidence of other crimes,
wrongs or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” Tex. R. Evid. 404(b), 60 Tex. B.J. 1134 (1998,
superseded 2015).10 Rule 404(b)’s list of exceptions is illustrative, rather than

         9
              The maps in evidence show the events to have taken place approximately five miles
apart.
         10
          The Texas Court of Criminal Appeals adopted revisions to the Texas Rules of
Evidence, except as to Rules 511 and 613, effective April 1, 2015. See Final Approval of
Amendments to the Texas Rules of Evidence, Misc. Docket No. 15-001 (Tex. Crim. App. Mar.
                                                 12
exhaustive, and extraneous-offense evidence may be admissible when a defendant
raises a defensive issue that negates one of the elements of the offense. Martin v.
State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005). “The rule excludes only that
evidence that is offered (or will be used) solely for the purpose of proving bad
character and hence conduct in conformity with that bad character.” De La Paz v.
State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

       Rule 403 provides: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403, 60
Tex. B.J. 1134 (1998, superseded 2015).

       We review a trial court’s ruling on the admissibility of extraneous-offense
evidence under an abuse-of-discretion standard. De La Paz, 279 S.W.3d at 343.
As long as the trial court’s ruling is within the zone of reasonable disagreement,
there is no abuse of discretion, and we will uphold the trial court’s ruling. Id. at
343-44. A trial court’s ruling to admit extraneous-offense evidence is generally
within the zone of reasonable disagreement if the evidence shows that (1) the
extraneous transaction is relevant to a material, non-propensity issue; and (2) the
probative value of the evidence is not substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading of the jury. Id. at 344.

       Evidence of an extraneous offense may be admitted to prove identity only if
identity is at issue in the case. Page v. State, 213 S.W.3d 332, 336 (Tex. Crim.
App. 2006). A trial court has considerable latitude in determining that identity is,
in fact, disputed. Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008).

12, 2015). We cite to the previous version of the Rules because appellant’s trial occurred in
2013, before the effective date of the amendments.

                                             13
Identity may be placed in dispute by the defendant’s opening statement or cross-
examination as well as by affirmative evidence offered by the defense. Id.

      Appellant contested his identification as Davila’s assailant in his opening
and closing statements. Additionally, appellant asserts in his appellate brief that
identity was at issue. We determine that the trial court acted within its discretion
in determining that appellant’s identity as Davila’s assailant, in fact, was disputed.
See id. (“That the impeachment was not particularly damaging or effective in light
of all of the evidence presented is not the question.”).

      Merely raising the issue of identity, however, does not automatically make
the extraneous-offense evidence admissible. Page, 213 S.W.3d at 336. “When the
extraneous offense is introduced to prove identity by comparing common
characteristics, it must be so similar to the charged offense that the offenses
illustrate the defendant’s ‘distinctive and idiosyncratic manner of committing
criminal acts.’” Id. (quoting Martin, 173 S.W.3d at 468).          “[T]he theory of
relevancy is usually that of modus operandi in which the pattern and characteristics
of the charged crime and the uncharged misconduct are so distinctively similar that
they constitute a ‘signature.’” Segundo, 270 S.W.3d at 88. “No rigid rules dictate
what constitutes sufficient similarities; rather, the common characteristics may be
proximity in time and place, mode of commission of the crimes, the person’s dress,
or any other elements which mark both crimes as having been committed by the
same person.” Id. “Usually, it is the accretion of small, sometimes individually
insignificant, details that marks each crime as the handiwork or modus operandi of
a single individual.” Id. The extraneous offense and the charged offense can be
different offenses, so long as the similarities between the two offenses are such that
the evidence is relevant. Mason v. State, 416 S.W.3d 720, 740-41 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d).

                                          14
      Appellant argues that the December 9, 2008 robbery of Albert and the
December 1, 2008 shooting of Davila were too dissimilar to establish a signature.
He asserts that the December 9, 2008 robbery is dissimilar because it took place in
a different part of town and did not involve the discharge of a weapon.

      Appellant’s first asserted dissimilarity is not supported by the record. The
record shows that the two offenses took place in west Houston, and that the
December 9, 2008 robbery took place approximately five miles directly north of
the December 1, 2008 shooting.

      We determine that the second asserted dissimilarity — the December 9,
2008 robbery did not involve the discharge of a weapon — is outweighed by
several similarities between the two offenses such that the trial court acted within
its discretion in (1) determining that the similarities between the charged offense
and the extraneous offense were sufficient to show appellant’s idiosyncratic or
signature style of robbery; and (2) admitting the extraneous-offense evidence to
prove identity. See Page, 213 S.W.3d at 336. Both the charged offense and the
extraneous offense occurred within eight days of each other; both involved
aggravated robberies; the perpetrator of each offense arrived at the scene in a
similar model car; the steering column of each car was torn away, indicating that
the car had been stolen; the perpetrator of each offense parked his car next to his
victim’s car; the perpetrator wielded a gun during each offense; witnesses to both
crimes testified that the perpetrator wore a black hooded jacket or sweatshirt; the
police found disposable cell phones inside abandoned vehicles connected to each
crime; and the cell phones found in the vehicles connected to the crimes shared 19
contacts. We conclude that the trial court acted within its discretion in determining
that evidence of the December 9, 2008 robbery of Albert was probative of
appellant’s identity as Davila’s assailant. See id. at 338 (Texas law “does not

                                         15
require extraneous-offense evidence to be completely identical to the charged
offense to be admissible to prove identity.”).

       Further, we determine that the extraneous-offense evidence was not
prohibited under Rule 403 as unduly prejudicial. Appellant asserts that the
probative value of the evidence, if any, was substantially outweighed by its unfair
prejudicial effect because the State spent an entire day presenting extraneous-
offense evidence. The record shows that the State spent half a day during a five-
day trial presenting evidence related to the December 9, 2008 robbery of Albert.11
Albert’s identification of appellant as the perpetrator of the robbery against her
provided eyewitness testimony linking appellant to Davila’s shooting, if the jury
believed that the same individual committed both offenses. We determine that the
trial court acted within its discretion in allowing evidence of the December 9, 2008
robbery because the presentation of the extraneous offense was not excessive in
light of the length of the trial and the probative value of the evidence.                See
Johnson, 68 S.W.3d at 651-52 (extraneous-offense evidence was not unfairly
prejudicial even though the State had DNA evidence, fingerprint evidence, and
written and oral confessions because the extraneous-offense evidence “added a
significant dimension to the evidence not otherwise before the jury — eyewitness
testimony inferentially linking appellant to the crime”).

       We conclude that the trial court did not abuse its discretion in admitting
extraneous-offense evidence regarding the December 9, 2008 robbery of Albert
under Rules 404(b) and 403. We overrule appellant’s third issue.

                                   JURY INSTRUCTION

       In his first issue, appellant contends that the trial court erred by failing to
       11
          The State spent another half a day presenting testimony related to the December 13,
2008 police chase and arrest of appellant, to which appellant did not object.

                                             16
instruct the jury on the lesser-included offense of felony murder.

I.    Standard of Review and Applicable Law

      We review a complaint of jury-charge error under a two-step process. See
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). We first determine
whether error occurred.     See id.   If we find error, we then evaluate whether
sufficient harm resulted from the error to require reversal. See id.; Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

      A trial court errs in denying a defendant’s request for a jury instruction on a
lesser-included offense if two conditions are satisfied: (1) “the offense is actually a
lesser-included offense of the offense charged” in the indictment; and (2) there is
some evidence in the record “from which a rational jury could acquit the defendant
of the greater offense while convicting him of the lesser-included offense.”
Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004); Delacruz v.
State, 278 S.W.3d 483, 488 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
The first condition is satisfied in this case because felony murder is actually a
lesser-included offense of capital murder. Threadgill, 146 S.W.3d at 665.

      In determining whether the second condition is satisfied, we review all of the
evidence presented at trial without considering its credibility or whether it conflicts
with other evidence. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998);
Delacruz, 278 S.W.3d at 488. Anything more than a scintilla of evidence may be
sufficient to entitle a defendant to an instruction on the lesser-included offense,
regardless of whether the evidence is weak, impeached, or contradicted. Cavazos
v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012); Hall v. State, 225 S.W.3d
524, 536 (Tex. Crim. App. 2007). Although this threshold showing is low, “‘it is
not enough that the jury may disbelieve crucial evidence pertaining to the greater
offense, but rather, there must be some evidence directly germane to the lesser-
                                          17
included offense for the finder of fact to consider before an instruction on a lesser-
included offense is warranted.’” Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim.
App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App.
1997)). “‘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.’” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (quoting
Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)) (emphasis
removed).

      Felony murder is an unintentional murder committed in the course of
committing a felony.      Tex. Penal Code. Ann. § 19.02(b)(3) (Vernon 2011);
Threadgill, 146 S.W.3d at 665. As relevant to this case, capital murder includes an
intentional murder committed in the course of a robbery. Tex. Penal Code Ann. §
19.03(a)(2) (Vernon Supp. 2014); Threadgill, 146 S.W.3d at 665. “The element
distinguishing capital murder from felony murder is the intent to kill.” Threadgill,
146 S.W.3d at 665. Thus, for appellant “[t]o [have been] entitled to an instruction
on felony murder there must be some evidence that would permit a jury rationally
to find [appellant] had the intent to commit robbery but not to cause the death of
[his] victim.” Id.

      Appellant argues that he was entitled to an instruction on the lesser-included
offense of felony murder because the State’s evidence is subject to multiple
interpretations. He asserts:

      [T]here [is] ample evidence . . . [a]ppellant stole cars at gunpoint,
      i.e.[,] committed aggravated robbery . . . . Nothing, however, placed .
      . . [a]ppellant at the scene of Davila’s murder. Th[e] evidence
      indicates that . . . [a]ppellant intended to participate in robbing Davila
      of his truck, but not that he intended (or that he intended anyone else)
      to kill Davila. In fact, in the other robberies committed by . . .
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       [a]ppellant, no weapon was fired.

Appellant’s theory that he was not at the scene of Davila’s murder, but
nevertheless participated in robbing Davila is not supported by any rational view of
the evidence. The State’s evidence suggests only that the robbery of Albert and the
robbery and shooting of Davila were committed by a single perpetrator each time.
Appellant vigorously contested that the State proved he was the perpetrator of the
December 1, 2008 robbery and shooting of Davila. If the jury believed that
appellant was not at the scene of Davila’s murder, then it rationally would have
acquitted him of any crime because it would not have believed him to be the sole
perpetrator of the robbery and shooting. The trial court, therefore, did not err in
refusing an instruction on felony murder because the evidence does not support
appellant’s conviction for only the lesser-included offense of felony murder and
not the greater offense of capital murder. See id.; cf. Williams v. State, 294 S.W.3d
674, 681 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“Appellant’s testimony
that she did not commit any offense cannot support a lesser-included offense
instruction . . . . Appellant’s evidence, if believed by the jurors, would have
supported only an acquittal.”).

       Additionally, there is no evidence in the record to support the theory that
Davila’s assailant did not intend to kill Davila.12 Martinez and Fernandez testified
that they heard multiple gunshots fired by the assailant. The police found eight
cartridge casings in Davila’s truck after it was recovered.                Appellant did not
introduce any evidence at trial. Specifically, he did not produce any evidence to

       12
           We refer to Davila’s assailant because, under the law of parties, appellant can be held
criminally responsible for capital murder, regardless of whether he shot Davila or a co-
conspirator to the robbery shot Davila. See Tex. Penal Code. Ann. § 7.02(b) (Vernon 2011);
Valle v. State, 109 S.W.3d 500, 503-04 (Tex. Crim. App. 2003) (“A defendant may be convicted
of capital murder under § 7.02(b) without having the intent or actual anticipation that a human
life would be taken.”).

                                               19
suggest that Davila’s assailant fired inadvertently or intended a result other than
Davila’s death. We determine, on this record, that there is no evidence that would
permit a jury rationally to find that Davila’s assailant had the intent to commit
robbery but not the intent to kill Davila. See Threadgill, 146 S.W.3d at 665 (trial
court did not abuse its discretion in concluding that there was no evidence that
would permit a jury rationally to find that appellant did not intend to kill his victim
where the evidence showed that defendant ran up to a car, leaned in, and fired two
shots, the second of which was into the backseat where the victim was seated); cf.
Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (“Intent to kill
may be inferred from the use of a deadly weapon in a deadly manner.”).

      We hold that the trial court did not err in refusing appellant’s request for a
jury instruction on the lesser-included offense of felony murder because there is no
evidence in the record from which a rational jury could acquit appellant of capital
murder while convicting him of felony murder. See Threadgill, 146 S.W.3d at
665. We overrule appellant’s second issue.

                                    CONCLUSION

      Having overruled appellant’s three issues, we affirm the trial court’s
judgment.



                                        /s/    William J. Boyce
                                               Justice


Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — Tex. R. App. P. 47.2(b).




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