Affirmed and Memorandum Opinion filed March 26, 2015.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-13-00958-CR

                         JAIRO UMANZOR, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1349385

                  MEMORANDUM OPINION

      A jury convicted appellant Jairo Umanzor of murder and sentenced him to
fifteen years’ imprisonment. In two issues, he challenges the sufficiency of the
evidence to support his conviction and asserts that the trial court erred by denying
his request for lesser-included offense instructions. We affirm.
                                   I. BACKGROUND

      On the evening of May 29, 2012, appellant shot the decedent, Reggie
Sheppard, Jr., in the back.     After shooting Reggie, appellant tried to help in
resuscitation efforts before emergency workers arrived. Reggie’s father heard
appellant say, “Hey, hold on man. Don’t die. Don’t die. Don’t die, man. Please
don’t die.” Despite appellant’s and Reggie’s father’s efforts, Reggie died at the
scene. Appellant told the first responding officers that three black men were
involved in the shooting and they left in a blue Ford. However, a neighbor
implicated appellant in the shooting.

      In a statement he made to police later that evening, appellant claimed that he
shot at Reggie and a man called “Boogie” in defense of himself and his family
because they had come to his front door armed and threatening him. Appellant
asserted that, earlier in the evening, three individuals had stopped by his house
looking to buy drugs. According to appellant, these individuals came looking for
Reggie or Boogie, from whom appellant had bought drugs before. Appellant told
police that he later went outside to smoke a marijuana cigarette and saw these three
people “jump” Reggie. After jumping Reggie, the three individuals fled in their
vehicle. Appellant stated he saw Reggie get up and go to Boogie’s house, yelling
that he was going to get a gun. According to appellant, he knew that the two were
going to blame him for the fight and “come and kill” him, so he told his wife to
hide with their children. Appellant stated he was in fear for his life, so he got his
gun. Appellant explained to police that Reggie and Boogie came to his house and
knocked on his door. He claimed he opened the door because he didn’t want them
to come into his house and kill him in front of his children.1

      1
        Appellant later said that his front door “opened” when Reggie and Boogie were
“beating” on it.

                                          2
        According to appellant, Reggie and Boogie confronted him because they
were looking for the individuals who had “jumped” Reggie. Appellant claimed
that Boogie put a gun in his face and threatened him; appellant claimed that Reggie
also had a gun in his hand. Appellant knocked Boogie’s gun out of his face and
told them “don’t do it.” They ran away while shooting at him; appellant initially
stated they shot at least twice at him. Appellant said he responded to their threat to
his life and his family by crouching behind his car and shooting at Reggie and
Boogie as they “scattered.” Appellant explained that he was unable to see where
he was shooting when he fired his gun. Later, he claimed it happened “so fast”
that he couldn’t remember whether they shot at him or whether Reggie actually
had a gun. According to appellant’s statement, after the shooting stopped, he went
inside his house and told his wife to leave. He told her to take the gun and “dump
it.” He then went across the street to try to help Reggie. Appellant’s story to
police shifted incrementally throughout; when they confronted him with evidence
inconsistent with his story, he made minor changes to it. However, he consistently
asserted that he was in fear for his life when he got his gun and went to his front
door.

        One of appellant’s neighbors testified that he heard a gunshot and went to
his window. This witness testified that he saw appellant standing in his driveway,
close to his car, with his hand extended as if firing a gun. This witness did not see
appellant shooting, but he saw him positioned with his hand out and heard several
gunshots. Before the neighbor saw appellant in his driveway, he saw someone
running away. The neighbor was unable to tell whether the person running away
was carrying a weapon. Another witness saw Reggie running across her driveway;
the witness did not see Reggie carrying a gun. Finally, Reggie’s father saw Reggie



                                          3
running towards his house; he stated that Reggie was not carrying a gun and did
not own a gun.

      Houston Police Department (HPD) crime scene investigators discovered
several spent shells and bullets at the scene. Most of the bullets and casings were
.45 caliber, but they found one .40 caliber bullet near appellant’s porch. HPD
officers found both .45 caliber and .40 caliber bullets inside appellant’s home,
strewn across the floor and in a drawer in a bedside table. The manufacturer of the
.40 caliber bullet found on appellant’s porch matched the manufacturer of the .40
caliber bullets found inside appellant’s home.        An HPD firearms examiner
determined that two fired .45 caliber bullets found at the scene matched the .45
caliber bullet that caused Reggie’s death. This examiner also determined that six
fired .45 caliber auto cartridge bullets found at the scene near appellant’s driveway
were fired from the same gun. The examiner stated that the .40 caliber bullet could
have been fired from the same gun as the .45 caliber bullets had been, but it did not
show signs of expansion that ordinarily would have been present had this occurred.

      Gunshot residue (GSR) was found on both of appellant’s hands and on
Reggie’s right hand. This GSR was consistent with activities such as firing a
weapon, being in close proximity to a firearm during discharge, or handling a
firearm, a fired cartridge, or some other surface bearing GSR. The manager of the
Harris County Institute of Forensic Sciences, who was responsible for testing the
GSR in this case, could not rule out secondary transfer of the GSR from one person
to another.

      A jury convicted appellant of murder, implicitly rejecting his claim of self
defense.      After hearing evidence at punishment, the jury assessed appellant’s
punishment at 15 years’ confinement in the Institutional Division of the Texas



                                         4
Department of Criminal Justice. The trial court entered judgment on the jury’s
verdict, and this appeal followed.

                         II. SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant challenges the sufficiency of the evidence to
support his conviction. In particular, he contends that a rational jury could not
have found he acted intentionally or knowingly or that he did not act in self
defense.

A.    Standard of Review and Governing Law

      “In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt.” Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013) (quotation omitted). When an appellant
challenges the sufficiency of the evidence to support the jury’s rejection of a self-
defense claim, we similarly must determine whether “any rational trier of fact
would have found the essential elements of murder beyond a reasonable doubt and
also would have found against appellant on the self-defense issue beyond a
reasonable doubt.” Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d) (citing Saxton v. State, 804 S.W.2d 910, 913–14 (Tex.
Crim. App. 1991) (en banc)).         The jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony. Winfrey, 393 S.W.3d at 768.
“Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quotation omitted).


                                          5
          A person commits murder when he intentionally 2 or knowingly3 causes the
death of another person, or if he intends to cause serious bodily injury and commits
an act clearly dangerous to human life that causes the death of an individual. Tex.
Penal Code Ann. § 19.02(b).           The State may prove a defendant’s criminal
culpability by either direct or circumstantial evidence, coupled with all reasonable
inferences from that evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim.
App. 2009). By statute, a firearm is a deadly weapon. Tex. Penal Code Ann.
§ 1.07(17)(A). “The jury may infer the intent to kill from the use of a deadly
weapon unless it would not be reasonable to infer that death or serious bodily
injury could result from the use of the weapon.” Jones v. State, 944 S.W.2d 642,
647 (Tex. Crim. App. 1996). Further, in determining a defendant’s guilt, a jury
may consider events that occurred before, during, and after the commission of the
offense. Pitonyak v. State, 253 S.W.3d 834, 844 (Tex. App.—Austin 2008, pet.
ref’d).

          Generally, a person is justified in defending against another’s use of deadly
force. See Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). Under the
Penal Code, a person is justified in using deadly force (1) if he would be justified
in using force against the other under section 9.31 of the Texas Penal Code, and
(2) when and to the degree he reasonably believes the deadly force is immediately
necessary to protect himself against the other’s use or attempted use of unlawful
deadly force. Tex. Penal Code Ann. § 9.32(a)(1), (a)(2)(A). Section 9.31 of the
Penal Code justifies a person to use force “when and to the degree the actor
reasonably believes the force is immediately necessary to protect the actor against

          2
        A person acts intentionally with respect to a result of his conduct when it is his
conscious objective or desire to cause the result. Tex. Penal Code Ann. § 6.03(a).
          3
        A person acts knowingly with respect to a result of his conduct when he is aware that
his conduct is reasonably certain to cause the result. Id. § 6.03(b).

                                             6
the other’s use or attempted use of unlawful force.”       Id. § 9.31(a).    Once a
defendant produces some evidence of self defense, the burden shifts to the State to
disprove this defense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. This
burden of persuasion does not require the State to produce evidence to refute the
self-defense claim, but requires only that it prove its case beyond a reasonable
doubt. Id.

      Because self defense is an issue of fact to be determined by the jury, the jury
is free to accept or reject the defensive issue. Medina v. State, 411 S.W.3d 15, 21
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Saxton, 804 S.W.2d at
913–14). A jury’s guilty verdict is an implicit rejection of the appellant’s self-
defense claim. Saxton, 804 S.W.2d at 914.

B.    Application

      Appellant first asserts that he lacked the culpable mental state to be
convicted of murder. Appellant does not dispute that he used a firearm in the
commission of this offense; instead, he relies almost entirely on his statement to
police, in which he claimed he did not intend to kill anyone and was not shooting
“at” anyone.

      Viewing the evidence in the light most favorable the jury’s verdict,
including the statement appellant made to police, the jury could have inferred
appellant intentionally or knowingly caused Reggie’s death or intended to cause
serious bodily injury and committed an act clearly dangerous to human life that
caused Reggie’s death based on the following evidence. First, appellant admitted
that he intentionally got his gun and loaded it before he opened the door to Reggie
and Boogie. Although appellant claimed he was in fear for his life and for his
family, that fear does not undercut his intentional acts of retrieving a firearm and
loading it before engaging in the encounter with Reggie and Boogie. Further,
                                         7
appellant admittedly chased after Reggie and Boogie when they fled from his front
porch, and appellant fired his gun in their direction. Additionally, appellant lied to
the police at the scene about who the perpetrator was in an apparent effort to hide
his involvement, and appellant gave the murder weapon to his wife and told her to
“dump it,” which she did. From this evidence, the jury could have inferred that
appellant was conscious of his guilt. See King v. State, 29 S.W.3d 556, 565 (Tex.
Crim. App. 2000) (recognizing, in a sufficiency review, the jury may consider
evidence showing consciousness of guilt). Finally, appellant stated that he killed
Reggie in self defense, acknowledging that he shot Reggie, but claiming he did so
in fear for his life and his family. All of these factors support the jury’s inference
that appellant possessed the culpable mental state associated with murder.

      Under these circumstances, it was not unreasonable for the jury to infer the
intent to kill from appellant’s use of a deadly weapon. Jones, 944 S.W.2d at 647.
Based on the evidence and reasonable inferences therefrom, we conclude that a
rational juror could have found the essential elements of murder beyond a
reasonable doubt. We thus overrule this portion of appellant’s first issue.

      For many of these same reasons, we further conclude that a reasonable jury
could have rejected appellant’s claim of self defense. As noted above, although the
State bears the burden of persuasion to disprove the issue of self defense, the State
is not required to affirmatively present evidence that specifically refutes the
defendant’s self-defense evidence. Saxton, 804 S.W.2d at 913–14. Here, the only
evidence that appellant acted in self defense comes from his statement to police.
And, although he claimed, at first, that Reggie and Boogie confronted him at his
front door and shortly thereafter began shooting at him, appellant later backed
away from this claim and stated he was not sure if they had fired at him. Further,
there is no evidence of any gunshots fired towards appellant’s house; the only

                                          8
evidence of gunshots indicates the shots were fired away from appellant’s house.
And, the only bullets and casings found at the scene matched the type of unfired
bullets found in appellant’s house. A defendant’s own statement regarding his
intent is not enough to render the evidence, without more, insufficient. See Sells v.
State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003) (holding that only evidence
weighing against jury finding that defendant entered home with no specific intent
to commit sexual assault was defendant’s own statement, which was not enough to
render evidence insufficient). Appellant also admitted to leaving his home and
chasing after Reggie and Boogie as they “scattered.” Cf. Cleveland v. State, 177
S.W.3d 374, 387 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (holding that
the jury could have rationally concluded that the defendant’s claim of self defense
was defeated when he continued to stab the complainant in the back as she lay
bleeding on the floor).

      As noted above, appellant instructed his wife to dispose of the gun he used
to shoot at Reggie and Boogie as they fled, and he lied to police when they arrived
at the scene, misdirecting them to other alleged perpetrators.        This evidence
indicates a consciousness of guilt. See King, 29 S.W.3d at 565. And even though
appellant tried to help resuscitate Reggie shortly after the incident and was
overheard pleading for Reggie not to die, this evidence could be viewed to bolster
an inference of appellant’s awareness that he had intentionally committed an act
clearly dangerous to human life and was hoping that his actions would not result in
Reggie’s death.

      In short, viewing the evidence in the light most favorable to the jury’s
verdict, we conclude that a rational jury could have rejected appellant’s claim of
self defense and found him guilty of murder beyond a reasonable doubt.
Accordingly, we overrule the entirety of appellant’s first issue.

                                          9
                          III.   ALLEGED CHARGE ERROR

      In his second issue, appellant urges that the trial court erred by refusing his
request to include the lesser-included offenses of involuntary manslaughter and
criminally negligent homicide in the jury charge.

A.    Standard of Review and Governing Law

      We review alleged charge error by considering two questions: (1) whether
error existed in the charge; and (2) whether sufficient harm resulted from the error
to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
The degree of harm necessary for reversal under the second inquiry depends on
whether the appellant preserved the error. Id. When error in the jury charge is
preserved, as here, reversal is required if the error is “‘calculated to injure the
rights of the defendant,’ which means no more than that there must be some harm
to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1984) (quoting Tex. Code Crim. Proc. Ann. art. 36.19). Reversal is required
if we find “some actual, rather than merely theoretical, harm from the error.”
Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999).

      “The determination of whether a lesser-included-offense instruction
requested by a defendant must be given requires a two-step analysis: (1) Is the
requested charge for a lesser-included offense of the charged offense? (2) Is there
trial evidence that supports giving the instruction to the jury?” Rice v. State, 333
S.W.3d 140, 144 (Tex. Crim. App. 2011). The first step is a question of law and
does not depend on the evidence produced at trial. Id. We agree with the parties
that involuntary manslaughter and criminally negligent homicide are lesser-
included offenses of murder: the only difference between these offenses is the
culpable mental state. See Navarro v. State, 83 S.W.2d 191, 203 (Tex. App.—
Austin 1993, pet. ref’d). Murder is committed with the culpable mental state of
                                         10
appellant admittedly chased after Reggie and Boogie when they fled from his front
porch, and appellant fired his gun in their direction. Additionally, appellant lied to
the police at the scene about who the perpetrator was in an apparent effort to hide
his involvement, and appellant gave the murder weapon to his wife and told her to
“dump it,” which she did. From this evidence, the jury could have inferred that
appellant was conscious of his guilt. See King v. State, 29 S.W.3d 556, 565 (Tex.
Crim. App. 2000) (recognizing, in a sufficiency review, the jury may consider
evidence showing consciousness of guilt). Finally, appellant stated that he killed
Reggie in self defense, acknowledging that he shot Reggie, but claiming he did so
in fear for his life and his family. All of these factors support the jury’s inference
that appellant possessed the culpable mental state associated with murder.

      Under these circumstances, it was not unreasonable for the jury to infer the
intent to kill from appellant’s use of a deadly weapon. Jones, 944 S.W.2d at 647.
Based on the evidence and reasonable inferences therefrom, we conclude that a
rational juror could have found the essential elements of murder beyond a
reasonable doubt. We thus overrule this portion of appellant’s first issue.

      For many of these same reasons, we further conclude that a reasonable jury
could have rejected appellant’s claim of self defense. As noted above, although the
State bears the burden of persuasion to disprove the issue of self defense, the State
is not required to affirmatively present evidence that specifically refutes the
defendant’s self-defense evidence. Saxton, 804 S.W.2d at 913–14. Here, the only
evidence that appellant acted in self defense comes from his statement to police.
And, although he claimed, at first, that Reggie and Boogie confronted him at his
front door and shortly thereafter began shooting at him, appellant later backed
away from this claim and stated he was not sure if they had fired at him. Further,
there is no evidence of any gunshots fired towards appellant’s house; the only

                                          8
evidence shows that appellant recklessly caused Reggie’s death;4 rather this
evidence shows that appellant intentionally aimed a loaded deadly weapon in the
direction of a fleeing individual and pulled the trigger. Appellant’s statement,
when viewed along with the other evidence, is not evidence that would permit a
jury rationally to find that if he is guilty, he is guilty only of involuntary
manslaughter. Cf. Johnson, 915 S.W.2d at 658–59 (“Though appellant testified
that he shot Freeman only to make Freeman get ‘off of him,’ this is not testimony
that appellant’s actions were anything other than deliberate.”).

      Under the facts of this case, the trial court did not err by denying appellant’s
request for an instruction on the lesser-included offense of involuntary
manslaughter.

      2. Criminally Negligent Homicide

      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 Ann.
§ 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 did not know that it was reasonably
certain to occur. Miller v. State, 177 S.W.3d 177, 182 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d). If such evidence is present, the record also must contain
evidence showing that the defendant was unaware of the risk. Id.


      4
          See Tex. Penal Code Ann. § 19.04(a).

                                                 12
                          III.   ALLEGED CHARGE ERROR

      In his second issue, appellant urges that the trial court erred by refusing his
request to include the lesser-included offenses of involuntary manslaughter and
criminally negligent homicide in the jury charge.

A.    Standard of Review and Governing Law

      We review alleged charge error by considering two questions: (1) whether
error existed in the charge; and (2) whether sufficient harm resulted from the error
to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
The degree of harm necessary for reversal under the second inquiry depends on
whether the appellant preserved the error. Id. When error in the jury charge is
preserved, as here, reversal is required if the error is “‘calculated to injure the
rights of the defendant,’ which means no more than that there must be some harm
to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1984) (quoting Tex. Code Crim. Proc. Ann. art. 36.19). Reversal is required
if we find “some actual, rather than merely theoretical, harm from the error.”
Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999).

      “The determination of whether a lesser-included-offense instruction
requested by a defendant must be given requires a two-step analysis: (1) Is the
requested charge for a lesser-included offense of the charged offense? (2) Is there
trial evidence that supports giving the instruction to the jury?” Rice v. State, 333
S.W.3d 140, 144 (Tex. Crim. App. 2011). The first step is a question of law and
does not depend on the evidence produced at trial. Id. We agree with the parties
that involuntary manslaughter and criminally negligent homicide are lesser-
included offenses of murder: the only difference between these offenses is the
culpable mental state. See Navarro v. State, 83 S.W.2d 191, 203 (Tex. App.—
Austin 1993, pet. ref’d). Murder is committed with the culpable mental state of
                                         10
criminally negligent homicide. We have thus overruled both of appellant’s issues.
Accordingly, we affirm the trial court’s judgment.



                                      /s/    Sharon McCally
                                             Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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