Opinion issued December 16, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00660-CR
                            ———————————
               TREYVON RAYMOND WILLIAMS, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


               On Appeal from the 400th Judicial District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 12-DCR-60402


                          MEMORANDUM OPINION

      A jury convicted Treyvon R. Williams of murder and found that he used a

deadly weapon in the commission of the crime. TEX. PENAL CODE ANN. § 19.02.

The jury assessed punishment at 70 years’ confinement. Williams appeals,

contending that in light of evidence showing his actions were legally justified, the
evidence was insufficient to support a conviction for murder. He also argues that

the trial court erred by denying his proposed jury instructions on the lesser-

included offenses of manslaughter, criminally negligent homicide, and deadly

conduct.

      We conclude that a rational jury could have rejected the justification

defenses. We further conclude that the proposed instructions on lesser-included

offenses were correctly refused because Williams’s evidence was that he acted

intentionally but with legal justification. Accordingly, we affirm.

                                    Background

      In the weeks prior to the charged offense, Darian Chaney and Desiray

Johnson stole a variety of items from Tevin Johnson and appellant Treyvon

Williams. Tevin and appellant retaliated by stealing items from Darian and

Desiray.

      On the day of the offense, Darian, Desiray, complainant Ron “Rico”

Chaney, and several other people searched for appellant to recover the stolen

items. Darian, Desiray, and Rico went to the home of Angela Jones, and appellant

came out of the house, indicating that he wanted to fight. The group decided there

would be a one-on-one fight in which appellant was allowed to choose his

opponent; he chose to fight Rico. By this time, multiple carloads of people had

arrived at the house, and a crowd had formed around the yard.



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      Neither appellant nor Rico struck each other during the fight, and the two

separated quickly when another fight broke out between Desiray and another

woman, Andromida Norris. Soon, the fight between Desiray and Andromida ended

as Rico walked towards the women to break them up. At the same time, appellant

walked to a green Lexus, retrieved a gun, and fired three or four shots in the

direction of Rico and Desiray. One of the bullets struck Rico in the head, killing

him. Appellant fled in the green Lexus.

      Later that night, after discussion with his mother and counseling with her

pastor, appellant returned to the scene to turn himself in to the police. After he was

taken to an interview room by the police and read his Miranda warnings, appellant

gave a video-recorded statement.

      In the recorded statement, appellant initially stated that he believed someone

else at the scene had an assault rifle and that he had accidentally shot Rico while

trying to shoot the other individual. Later in the interview, appellant stated that he

shot Rico because he thought Rico intended to hurt Andromida, who was fighting

with Desiray in the yard.

      Appellant was charged with murder. Following trial, he was convicted and

sentenced to 70 years’ confinement.




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                                      Analysis

      On appeal, appellant challenges the sufficiency of the evidence supporting

his conviction and the trial court’s refusal to charge the jury on lesser-included

offenses.

I.    Sufficiency of the evidence

      Appellant argues in his first issue that the evidence at trial was legally

insufficient to support his conviction for murder because a rational factfinder could

not have properly rejected his theories of self-defense.

      When evaluating the legal sufficiency of the evidence, we view the evidence

in the light most favorable to the verdict and determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We must defer to

the responsibility of the factfinder to fairly resolve conflicts in the testimony, to

weigh evidence, and to draw reasonable inferences from the facts. See Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750. In so doing, we

may not reevaluate the weight and credibility of the record evidence and thereby

substitute our own judgment for that of the factfinder. Williams, 235 S.W.3d at

750. This standard applies equally to circumstantial and direct evidence. Laster v.

State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009).



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      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. “[A] person is justified in using force

against another when and to the degree the actor reasonably believes force is

immediately necessary to protect the actor against the other’s use or attempted use

of unlawful force.” Id. § 9.31(a). Deadly force is justified to protect the actor

against another’s use or attempted use of unlawful deadly force and to prevent

another’s imminent commission of murder, kidnapping, sexual assault, or robbery.

Id. § 9.32(a). A person is justified in using deadly force against another to protect a

third person if, under the circumstances the actor reasonably believes them to be,

the actor would be justified in using force against the other under section 9.32 to

protect himself against the unlawful deadly force he reasonably believes to be

threatening the third person, and the actor reasonably believes that his intervention

is immediately necessary to protect the third person. Id. § 9.33.

      The defendant bears the initial burden to produce evidence supporting a

justification defense. Zuliani v. State, 97 S.W.3d 589, 594–95 (Tex. Crim. App.

2003). Once the defendant produces some evidence, the State then bears the

burden of persuasion to disprove the raised defense. Id. The burden of persuasion

does not require the State to produce evidence; it requires only that it prove its case



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beyond a reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d). Thus, to convict a defendant of

murder after he has raised the issue of self-defense, the State is required to prove

the elements of the offense beyond a reasonable doubt and to persuade the jury

beyond a reasonable doubt that the defendant did not kill in self-defense. Zuliani,

97 S.W.3d at 594; McClesky v. State, 224 S.W.3d 405, 409 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d).

       Appellant contends that the jury could not have found against him beyond a

reasonable doubt on the issues of use of deadly force in defense of himself and in

defense of a third person. See TEX. PENAL CODE ANN. §§ 9.32, 9.33. Appellant

asserts that his own statements that he saw somebody in the crowd with an assault

rifle, coupled with other witness testimony that Rico, Desiray, and Darian were at

the house to “jump” him, justify his acts as deadly force in defense of himself. He

further argues that a jury could not have properly rejected evidence that his use of

deadly force was justified to protect Andromida, who testified that when the shots

were fired, Rico and Darian were moving toward her to help Desiray because she

had her on the ground. Andromida further stated that she saw an unknown person

take something black from Rico’s person after he was shot, which appellant

contends is evidence that Rico had a gun. Appellant also relies on other bystander




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testimony indicating that Rico was moving toward Andromida when the shots were

fired.

         The issue of self-defense is a fact issue to be determined by the jury, which

is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910,

913–14 (Tex. Crim. App. 1991). When a jury finds the defendant guilty, there is an

implicit finding against self-defense. Id. at 914. Although there is some evidence

that appellant reasonably believed that deadly force was immediately necessary to

protect himself or Andromida, other evidence demonstrates that a rational jury

could have been persuaded to the contrary beyond a reasonable doubt. Notably, no

weapon was found on Rico’s person after he was shot, and Andromida testified

that the black object taken from his body “could have been a shoe for all I know.”

Nor did any witness corroborate appellant’s statement that an unknown person at

the scene was carrying an assault rifle. Furthermore, as the exclusive judge of the

facts, the jury was entitled to accept or reject defensive evidence. Id.

         Viewing the evidence in the light most favorable to the verdict, a rational

factfinder could have found beyond a reasonable doubt against appellant on the

issues of self-defense and defense of a third person. See Saxton, 804 S.W.2d at

914; Williams v. State, 226 S.W.3d 611, 617 (Tex. App.—Houston [1st Dist.]

2007, no pet.). We overrule appellant’s challenge to the sufficiency of the

evidence.



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II.   Lesser-included offense instructions

      In his second issue, appellant asserts that the trial court abused its discretion

and committed reversible error when it refused to instruct the jury on the lesser-

included offenses of manslaughter, criminally negligent homicide, and deadly

conduct.

      We employ a two-pronged test to determine whether a defendant is entitled

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

377, 382 (Tex. Crim. App. 2012). The first step is a question of law, in which we

compare the elements alleged in the indictment with the elements of the lesser

offense to determine “if the proof necessary to establish the charged offense also

includes the lesser offense.” Id. The Code of Criminal Procedure states that an

offense is a lesser-included offense if:

             (1)    it is established by proof of the same or less than all the
                    facts required to establish the commission of the offense
                    charged;
             (2)    it differs from the offense charged only in the respect that
                    a less serious injury or risk of injury to the same person,
                    property, or public interest suffices to establish its
                    commission;

             (3)    it differs from the offense charged only in the respect that
                    a less culpable mental state suffices to establish its
                    commission; or

             (4)    it consists of an attempt to commit the offense charged or
                    an otherwise included offense.

TEX. CODE CRIM. PROC. art. 37.09.

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      The second step requires us to consider whether there is some evidence that

would permit a rational jury to find that, if the appellant is guilty, he is guilty only

of the lesser offense. Cavazos, 382 S.W.3d at 383. The second step is a question of

fact and is based on the evidence presented at trial. Id. Thus, a defendant is entitled

to an instruction on a lesser-included offense “if some evidence from any source

raises a fact issue on whether he is guilty of only the lesser, regardless of whether

the evidence is weak, impeached, or contradicted.” Id. “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-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)). The standard may be satisfied “if some evidence refutes

or negates other evidence establishing the greater offense or if the evidence

presented is subject to different interpretations.” Id.

      Here, the indictment alleged the elements of murder under all three

definitions in the Penal Code:

             (b)    A person commits an offense if he:

                    (1)    intentionally or knowingly causes the death of an
                           individual;




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                   (2)    intends to cause serious bodily injury and commits
                          an act clearly dangerous to human life that causes
                          the death of an individual; or
                   (3)    commits or attempts to commit a felony, other than
                          manslaughter, and in the course of and in
                          furtherance of the commission or attempt, or in
                          immediate flight from the commission or attempt,
                          he commits or attempts to commit an act clearly
                          dangerous to human life that causes the death of an
                          individual.

TEX. PENAL CODE § 19.02(b).

      a.    Manslaughter and criminally negligent homicide.

      Appellant asserts that it was error for the trial court to refuse to instruct the

jury on manslaughter and criminally negligent homicide. Both manslaughter and

criminally negligent homicide are lesser-included offenses of murder. Martinez v.

State, 16 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(manslaughter); Miller v. State, 177 S.W.3d 177, 182 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d) (criminally negligent homicide). But a defendant’s

testimony that he acted in self-defense precludes a finding that there is some

evidence in the record that appellant is guilty only of manslaughter, because a fact

finder cannot find both that a defendant acted recklessly and that he acted in self-

defense. Martinez, 16 S.W.3d at 848; see also Alonzo v. State, 353 S.W.3d 778,

782 (Tex. Crim. App. 2011) (noting precedents in which “[t]he very reason for

denying the manslaughter charges was that the defendants’ evidence was that in



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committing the homicide they acted intentionally in self-defense, not merely

recklessly”).

      The record also lacks evidence that appellant is only guilty of criminally

negligent homicide. That offense requires that a person act with criminal

negligence, which involves “inattentive risk creation, that is, the actor ought to be

aware of the risk surrounding his conduct or the results thereof.” Lugo v. State, 667

S.W.2d 144, 147–48 (Tex. Crim. App. 1984); see also TEX. PENAL CODE § 6.03(d)

(defining criminal negligence); id. § 19.05 (offense of criminally negligent

homicide). Thus, for a defendant to be entitled to a jury charge on criminally

negligent homicide, the record must contain “some evidence” that the defendant

did not intend the resulting death or know that it was reasonably certain to occur.

Miller, 177 S.W.3d at 182. If such evidence is present, the record must contain

evidence showing that the defendant was unaware of the risk. Id. Here, there is no

evidence in the record that appellant did not intend to cause death or that he did not

know it was reasonably certain to occur when he fired three or four bullets into a

crowd. Nor does the record contain evidence that appellant was unaware of that

risk. To the contrary, intentional conduct was implicit in appellant’s self-defense

testimony. Cf. Martinez, 16 S.W.3d at 848.

      b.        Deadly conduct.




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      Finally, appellant asserts that it was error for the court to refuse to instruct

the jury on the offense of deadly conduct. The offense of deadly conduct can be

committed in two ways. A person commits the misdemeanor version of the offense

if he recklessly engages in conduct that places another in imminent danger of

serious bodily injury. TEX. PENAL CODE § 22.05(a), (e). The felony version of

deadly conduct occurs if a person knowingly discharges a firearm at or in the

direction of one or more individuals. Id. § 22.05(b)(1). Thus, under these facts,

felony deadly conduct satisfies the first prong of the lesser-included test because it

was included in the proof necessary to establish the offense of murder. See TEX.

CODE CRIM. PROC. art. 37.09(1); Ortiz v. State, 144 S.W.3d 225, 233–34 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d).

      Appellant requested an instruction that described felony deadly conduct. On

appeal, however, he advances no argument to support that instruction. Instead, he

merely asserts, without reference to any supporting legal authority, that “when

Appellant shot the gun at Rico and/or Darian, his act was reckless.” A legal

argument that an instruction on misdemeanor deadly conduct should have been

given does not support reversal on appeal when the request at trial asked for an

instruction on felony deadly conduct. See TEX. R. APP. P. 33.1(a), 38.1(i); Green v.

State, No. 14-07-00827-CR, 2009 WL 1875572, at *10 (Tex. App.—Houston

[14th Dist.] Jun. 30, 2009, pet. ref’d) (mem. op., not designated for publication)



                                         12
(finding briefing waiver when appellant argued for a felony deadly conduct

instruction based on evidence that only related to the misdemeanor offense);

Morris v. State, No. 14-06-00564-CR, 2007 WL 2089290, at *4 (Tex. App.—

Houston [14th Dist.] Jul. 24, 2007, no pet.) (mem. op., not designated for

publication) (determining that request for lesser-included instruction of

misdemeanor deadly conduct was inadequate to preserve error on failure to give

instruction on felony deadly conduct).

                                  *        *      *

      Because appellant has failed to establish that he was entitled to a lesser-

included offense instruction for manslaughter, criminal negligence, or deadly

conduct, we overrule his second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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