Affirmed and Memorandum Opinion filed February 10, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-01037-CR

                 PATRICK SHARARD GUILLORY, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1340306

                       MEMORANDUM OPINION

      In this appeal from a conviction for capital murder, we consider whether the
evidence is legally sufficient to support the conviction, whether the trial court erred
by declining a request for multiple jury instructions, and whether the trial court
erred by overruling an objection to an improper closing statement. We conclude
that the evidence is sufficient and that there is no reversible error as to each
remaining issue. We therefore affirm the trial court’s judgment.
                                BACKGROUND

      Raul Amaro, the complainant in this case, died from a single gunshot wound
to the chest. The shooting happened just outside of a convenience store in
southwest Houston. Authorities came to suspect that appellant was the shooter, and
that he had murdered Amaro during the course of a robbery.

      The case against appellant was built on circumstantial evidence. One key
witness was Rogelio Vasquez, who testified that he had driven two men to the
convenience store on the night of the shooting. Vasquez said that he picked the two
men up after they had flagged him down on the side of the road. Vasquez
recognized one of the men as Tyreon Young, who was the relative of a former
classmate. Young climbed into the front passenger seat, and the other man sat in
the back. Vasquez did not know the backseat passenger, and at trial, Vasquez could
not offer any testimony as to whether the backseat passenger was appellant.
(Darius Rose, another witness whose testimony is more fully discussed below,
would later identify appellant as Vasquez’s backseat passenger.)

      Vasquez offered to take his two passengers to the convenience store, where
he intended to buy a beer. On the way there, Young asked Vasquez where he could
“hit a lick,” which is street slang for robbing someone. Vasquez testified that the
backseat passenger added, “Yeah, we need some money.” The backseat passenger
pulled a gun out of his jacket, which Vasquez believed to be a revolver. Vasquez
told the men not to rob anyone at the convenience store because his dad would
often drink there and he knew the regular customers. The men responded that they
would try to rob someone at a nearby restaurant instead.

      When they arrived at the convenience store, Vasquez and his passengers
parted ways. Vasquez opened the trunk of his car to inspect his stereo system,
which he thought was malfunctioning. Vasquez saw his passengers approach Rose,
                                         2
who had just exited a car in a nearby parking space. After a short while, Vasquez
testified that he heard four shots rings out in the vicinity. Vasquez looked across
the parking lot in the direction of the shooting and saw a portion of the gunman’s
arm, but not the rest of his body, which was apparently obstructed from view.

      Miguel Frias was pumping gas when the shots were fired. He looked up and
saw Amaro run out from the side of the convenience store and then collapse on the
ground. Frias approached Amaro, who said that “two black guys [had] robbed
him.” Both Young and appellant are African Americans, but Frias saw neither of
them on the night of the murder.

      Alex Flores and Ivan Martinez were drinking with Amaro shortly before the
shooting occurred. Neither man testified at trial, but their witness statements were
retold through a sheriff’s deputy who had interviewed them on the night of the
incident. According to the deputy, Flores and Martinez said that two robbers came
from behind the convenience store and attacked Amaro, who tried to fight back.
The robbers reportedly knocked Amaro down, then dragged him to a telephone
pole. Martinez tried to intervene, but he and Flores ran away from the fight
because one of the robbers began shooting at them.

      James Hanson arrived at the convenience store moments after Vasquez.
Hanson and Vasquez were familiar with each other, and they exchanged greetings
as Vasquez was inspecting his stereo system. When Hanson turned to head inside
the convenience store, he observed Young, another familiar face, fighting with an
Hispanic male around the corner. Hanson testified that Young pushed the other
man down, then Young lifted his hands and looked around to see if anyone wanted
to fight back. Hanson claimed that he then saw another man’s hand extend from
behind the corner of the building, holding a gun. Hanson ran away at the sight of
the gun. He heard shots fired but he did not see the shooter.

                                          3
      Rose was a passenger in Hanson’s car. When he arrived at the convenience
store, Rose testified that he saw Vasquez, who had driven there with two male
passengers. Rose identified the two passengers as Young and appellant, both of
whom he had known previously. Rose spoke briefly with Young and appellant, and
then they left in different directions.

      A security camera captured the meeting between the three men, but the
resolution was not high and the figures were mostly grainy. According to Rose, the
surveillance footage showed Young and appellant heading towards the rear
exterior of the convenience store, away from any public entrance. Their path could
have taken them around to the location where the shooting occurred, but there was
no footage confirming that they had taken that circuitous route.

      Before the shots were fired, Rose testified that he saw Young fighting with
Flores across the parking lot, on the opposite side of the convenience store where
Vasquez and Hanson had parked. As with every other witness, Rose testified that
he heard gunfire, but he did not see the shooter.

      The medical examiner found muzzle abrasions and soot in Amaro’s wound,
indicating that he had been shot at point-blank range. The medical examiner also
found a bullet fragment, which a forensics investigator determined was consistent
with a revolver round. Another investigator opined that a revolver could have been
used in the murder because no bullet casings were found at the crime scene. The
murder weapon itself was not recovered.

                       SUFFICIENCY OF THE EVIDENCE

      To obtain a conviction for capital murder, the State was required to prove
that appellant murdered Amaro and that the murder was intentionally committed
during the course of a robbery. See Tex. Penal Code § 19.03(a)(2). Appellant


                                          4
contends that his conviction should be set aside because there is no evidence that
he murdered Amaro or that a robbery ever took place.

      When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). The evidence is insufficient when the record contains no evidence, or
merely a “modicum” of evidence, probative of an element of the offense. See
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

      Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. 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. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

       Even though there was no eyewitness testimony regarding the identity of
the shooter, a rational jury could have found beyond a reasonable doubt that
appellant was the person who had murdered Amaro. The undisputed evidence
showed that three Hispanic men were attacked outside of a convenience store by

                                          5
two African-American men. The record supported a finding that Young was one of
the attackers. Two witnesses (Hanson and Rose) testified that they each saw Young
fighting with one of the Hispanic men in the moments before the shooting.

      Another witness (Vasquez) testified that he had driven Young to the
convenience store with a second African-American man, and during the commute,
the two passengers had discussed the possibility of robbing someone. Vasquez
testified that the backseat passenger had exhibited a firearm that appeared to be a
revolver, which could have been used as the murder weapon. Although Vasquez
could not confirm that appellant was his backseat passenger, Rose testified that he
affirmatively saw appellant exiting Vasquez’s car with Young when they both
arrived at the convenience store. The jury could have reasonably determined that
appellant participated in the robbery with Young, and that appellant shot Amaro
with the revolver witnessed by Vasquez.

      Appellant contends that there is no evidence that the murder was committed
during the course of a robbery because the record showed that a large amount of
money was still found in Amaro’s wallet. Appellant appears to suggest that a
completed theft is required before a robbery can occur, but that is mistaken; an
attempted theft is sufficient. See Tex. Penal Code §§ 29.01(1), 29.02; see also id.
§ 19.03(a)(2) (a person commits a capital murder if he intentionally commits a
murder “in the course of committing or attempting to commit . . . robbery”).

      Here, Vasquez testified that Young and the backseat passenger had
expressed a desire to “hit a lick,” or rob someone. Hanson and Rose witnessed
Young physically attacking an Hispanic male, which is consistent with an attempt
to commit a theft. Amaro also said in his final moments that “two black guys [had]
robbed him.” From this evidence, the jury could have reasonably determined that
Amaro’s murder was committed during the course of a robbery.

                                          6
      The jury could have also found that the murder was intentional. The medical
examiner testified that Amaro died from a single gunshot, which had been fired
into the chest at point-blank range. This evidence supported a finding that appellant
fired the shot with the deliberate intent to kill. See Godsey v. State, 719 S.W.2d
578, 580–81 (Tex. Crim. App. 1986) (“The specific intent to kill may be inferred
from the use of a deadly weapon, unless in the manner of its use it is reasonably
apparent that death or serious bodily injury could not result.” (citations omitted));
Nickerson v. State, 312 S.W.3d 250, 262 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d) (a “point-blank shot” supports a finding that the shot was intentional).

      Viewing the record in the light most favorable to the verdict, we conclude
that there is sufficient evidence from which a jury could find every element of the
offense beyond a reasonable doubt.

                  ACCOMPLICE-WITNESS INSTRUCTION

      Appellant argues in his next issue that the trial court reversibly erred by
refusing his request to give an accomplice-witness instruction. Appellant contends
that Vasquez was an accomplice, and that the instruction was therefore warranted.

      We review a complaint of jury-charge error under a two-step process,
considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005). If error does exist, we then analyze that error for harm under the
procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1984).

      An accomplice is someone who participates with the defendant before,
during, or after the commission of a crime, and who acts with a culpable mental
state. See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Under
Texas law, a conviction cannot be had on the testimony of an accomplice unless


                                           7
the testimony is corroborated by other evidence tending to connect the defendant
with the offense committed. See Tex. Code Crim. Proc. art. 38.14. The
corroborating evidence is not sufficient if it merely shows the commission of the
offense. Id.

      To be considered an accomplice, the person’s participation with the
defendant must have involved some affirmative act that promotes the commission
of the offense with which the defendant is charged. See Druery, 225 S.W.3d at
498. A person is not an accomplice witness merely because the person knew of the
offense and did not disclose it. Id. Furthermore, the person’s presence at the crime
scene does not make the person an accomplice. Id. A person is only an accomplice
if the person could be prosecuted for the offense with which the defendant is
charged, or a lesser-included offense of that charge. Id.

      A trial court should instruct the jury that a person is an accomplice witness
as a matter of law if there is no doubt that the person is an accomplice. Id. This
standard is met if the person has been charged with the same offense as the
defendant or if the evidence clearly shows that the person could have been so
charged. Id. If there is a question whether the person is an accomplice, the court
should allow the jury to decide whether the person is an accomplice as a matter of
fact. Id. at 498–99. In either case, there must be some evidence of an affirmative
act on the part of the person to assist in the commission of the charged offense
before an accomplice-witness instruction is required. Id. at 499.

      Appellant argues that Vasquez was an accomplice because he drove his two
male passengers to the convenience store after learning of their plan to commit a
robbery. Assuming without deciding that this evidence raised a question of fact as
to whether Vasquez was an accomplice, we must determine whether the trial
court’s error in refusing to give an accomplice-witness instruction was harmful.

                                          8
      An accomplice-witness instruction does not say that the jury should be
skeptical of accomplice-witness testimony. See Herron v. State, 86 S.W.3d 621,
632 (Tex. Crim. App. 2002). Nor does it tell the jury that such testimony must
receive less weight than other evidence. Id. The instruction merely informs the jury
that it cannot use the accomplice-witness testimony unless there is also some non-
accomplice evidence connecting the defendant to the offense. Id. Once it is
determined that such non-accomplice evidence exists, the purpose of the
instruction is fulfilled, and the instruction plays no further role in the jury’s
decision-making. Id. Therefore, non-accomplice evidence can render harmless a
failure to submit an accomplice-witness instruction by fulfilling the purpose an
accomplice-witness instruction is designed to serve. Id.

      A harm analysis for the omission of an accomplice-witness instruction is
supposed to be flexible, taking into account the existence and strength of any non-
accomplice evidence and the applicable standard of harm. Id. We examine the
strength of non-accomplice witness testimony by its reliability or believability, and
by the strength of its tendency to connect the defendant to the crime. Id. The
reliability inquiry may be satisfied if there is non-accomplice witness evidence,
and there is no rational and articulable basis for disregarding the evidence or
finding that it fails to connect the defendant to the offense. Id. at 633.

      The applicable standard of harm depends upon whether the defendant
preserved error by bringing the improper omission to the trial court’s attention. Id.
at 632. When the defendant has failed to preserve error, he must show egregious
harm. Id. But when, as here, the error is properly preserved, a reversal is required if
just “some harm” is shown. Id.

      Error is harmless under the “some harm” standard when there is a substantial
amount of non-accomplice evidence and the evidence of the witness’s accomplice

                                            9
status was tenuous, or barely enough to support submission of an instruction that
the witness was an accomplice as a matter of fact. Id. at 633 (citing Medina v.
State, 7 S.W.3d 633 (Tex. Crim. App. 1999)). The Court of Criminal Appeals has
also held that error is harmless when the corroborating evidence is so strong that
“it becomes implausible that a jury would fail to find that it tends to connect the
accused to the commission of the charged offense.” See Casanova v. State, 383
S.W.3d 530, 539–40 (Tex. Crim. App. 2012). At that level of strength, a reviewing
court may safely conclude that the resultant harm is “purely theoretical” because, if
the trial court had given the instruction, the jury would have almost certainly found
that the testimony of the accomplice witness was corroborated. Id.

      Turning first to the non-accomplice testimony, we note that there is reliable
evidence connecting appellant to the commission of a capital murder. The jury
heard through the testimony of a sheriff’s deputy that Flores and Martinez had
been drinking with Amaro in the moments before the shooting. Flores and
Martinez reported that two African-American men came from behind the
convenience store and attacked Amaro. Two other witnesses, Hanson and Rose,
established that Young was one of the attackers. Although neither witness saw the
face of the second attacker, Hanson affirmatively testified that the second attacker
had a gun and that Young could not have been the shooter.

      The identity of the second attacker was the only real dispute at trial, and
Rose’s testimony strongly suggested that the second attacker was appellant. Rose
established that Young and appellant had arrived together at the convenience store,
having both been passengers in Vasquez’s car. Video surveillance captured a brief
meeting in the parking lot between Rose, Young, and appellant. The surveillance
footage also showed Young and appellant walking away from Rose towards the
rear exterior of the convenience store, where their path could have taken them to

                                         10
the area where Amaro, Flores, and Martinez had been drinking. The surveillance
footage did not reveal any other person in the vicinity of Young and appellant, and
there was no testimony from a non-accomplice witness that a person other than
appellant had intervened or assisted Young. Considering that the shooting
happened shortly after Young and appellant had left the view of the security
camera, the evidence strongly supported a finding that appellant attacked Amaro
with Young, and that appellant was the one who fired the gun.

      Turning next to the evidence supporting an accomplice-witness instruction,
we note that there is much less evidence showing that Vasquez acted with a
culpable mental state. There is no affirmative evidence that Vasquez knew about
the criminal intentions of his passengers when he initially encountered them on the
side of the road. Vasquez testified that he learned of their plan to commit a robbery
during the commute, and when he acquired this knowledge, Vasquez pleaded with
his passengers to not commit a robbery at the convenience store because he knew
many of the people who frequented there. The passengers responded by assuring
Vasquez that they would rob someone at a different location instead. There is no
evidence that Vasquez agreed to drive the passengers to that different location, or
that he would share in the spoils of any robbery that the passengers actually
committed.

      We suppose that a jury could have rejected Vasquez’s testimony and
inferred an intent to assist in the commission of a robbery, but such an inference
could be made only on the basis that Vasquez continued to drive his passengers to
the convenience store after learning of their plan to commit a robbery. If, in the
eyes of the jury, that inference were unreasonable, then Vasquez was clearly not an
accomplice. See Kunkle v. State, 771 S.W.2d 435, 438–41 (Tex. Crim. App. 1986)
(a witness was not an accomplice, despite his knowledge of a plan to commit a

                                         11
robbery, where the witness was only a passenger in the car and he did nothing to
assist or encourage his group in the commission of the robbery); Moore v. State,
984 S.W.2d 783, 788 (Tex. App.—Waco 1999, no pet.) (a witness who drove the
defendant to the scene of a robbery was not an accomplice where the evidence
showed that the witness had no prior knowledge of the defendant’s plan to commit
the robbery); cf. Gross v. State, 380 S.W.3d 181, 188–89 (Tex. Crim. App. 2012)
(a driver was not criminally responsible as a party to murder where there was no
evidence that the driver assisted or encouraged his passenger to kill a third party
following a roadside argument).

      During the trial, Hanson testified that he had a “split second” look of the
shooter, who appeared to be wearing “a red jacket maybe or red sleeve.” Rose,
whose testimony suggested that appellant was the shooter, testified on the other
hand that appellant was dressed entirely in black. We are not persuaded that
Hanson’s testimony provides a rational and articulable basis for disregarding
Rose’s corroborating testimony. Hanson’s statement regarding the color of the
shooter’s clothing was equivocal, and it did not refute Rose’s testimony that
appellant was in the company of Young, the other suspected attacker. Rose’s
testimony still had a tendency to connect appellant to the commission of the
charged offense.

      Moreover, Rose was the only witness who identified appellant at trial.
Vasquez never confirmed that appellant was the backseat passenger in his car, nor
did he testify that he assisted appellant as either a principal or a party to the
offense. Without testimony of that sort, Vasquez was unlike the typical accomplice
witness whose testimony directly incriminates the accused. Indeed, even if there
were no accomplice-witness rule, a conviction could not have been had on
Vasquez’s testimony alone. Rose was essential to the prosecution because he

                                        12
placed appellant at the scene with the other suspected attacker, and he was the only
witness who could explain the figures on the grainy surveillance footage.

      The jury was apparently persuaded by the strength of Rose’s testimony.
Having considered the strength of that testimony ourselves and the relative
weakness of Vasquez’s status as an accomplice, we conclude that if an accomplice-
witness instruction had been given, then the jury would have certainly found that
Vasquez’s testimony was corroborated. Any error in omitting the instruction was
therefore harmless. See Casanova, 383 S.W.3d at 539–40.

                               FELONY MURDER

      In his next issue, appellant argues that the trial court abused its discretion by
refusing to instruct the jury on the lesser-included offense of felony murder.

      We apply a two-part test when determining whether a defendant is entitled
to an instruction on a lesser-included offense. See Sweed v. State, 351 S.W.3d 63,
67 (Tex. Crim. App. 2011). We first consider whether the lesser-included offense
is included within the proof necessary to establish the charged offense. See
McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). This inquiry
requires that we compare the elements of the greater offense as pleaded in the
indictment with the statutory elements of the lesser offense. See Ex parte Amador,
326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010). If the elements of the lesser
offense cannot be established by proof of the same or less than all of the facts
required to establish the commission of the greater offense, then the lesser offense
is not a lesser-included offense, and our analysis ends there. See Hall v. State, 225
S.W.3d 524, 536–37 (Tex. Crim. App. 2007).

      If the lesser offense is actually a lesser-included offense, then we examine
whether there is some evidence from which a rational jury could acquit the


                                         13
defendant of the charged offense but convict him of the lesser offense. See Guzman
v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006). The evidence must
establish the lesser offense as “a valid rational alternative to the charged offense.”
See Segundo v. State, 270 S.W.3d 79, 90–91 (Tex. Crim. App. 2008). We consider
all of the evidence presented at trial, regardless of its credibility or whether it is
produced by the State or the defendant. See Hayward v. State, 158 S.W.3d 476,
478–79 (Tex. Crim. App. 2005); Thompson v. State, 521 S.W.2d 621, 624 (Tex.
Crim. App. 1974).

      A person commits a capital murder if he intentionally commits a murder in
the course of committing or attempting to commit a felony. See Tex. Penal Code
§ 19.03(a)(2). A person commits a felony murder if he commits or attempts to
commit a felony, other than manslaughter, and in the course of and in furtherance
of the commission or attempt, he commits or attempts to commit an act clearly
dangerous to human life that causes the death of an individual. Id. § 19.02(b)(3).
The only distinguishing element between these two offense is the intent to kill:
capital murder requires an intentional killing, whereas felony murder does not. See
Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). Because an
offense may be a lesser-included offense if the only difference from the offense
charged is that a less culpable mental state suffices to establish its commission, we
conclude that felony murder is a lesser-included offense of capital murder. See
Tex. Code Crim. Proc. art. 37.09(3); Threadgill v. State, 146 S.W.3d 654, 665
(Tex. Crim. App. 2004). Therefore, the first part of the test is satisfied.

      Turning to the second part of the test, we must now consider whether there is
any affirmative evidence from which a rational jury could have found that
appellant had the intent to commit a robbery, but not the intent to cause the death
of his victim. See Fuentes v. State, 991 S.W.2d 267, 272–73 (Tex. Crim. App.

                                           14
1999). Contending that the record contains such evidence, appellant refers to
testimony that Amaro was fighting with the robbers in the moments before he was
shot. Appellant opines that, during the fight, there may have been a struggle over
the gun, causing the gun to accidentally discharge.

      Appellant’s argument relies entirely on conjecture, which is insufficient to
support the submission of a lesser-included offense instruction. See Wortham v.
State, 412 S.W.3d 552, 558 (Tex. Crim. App. 2013) (holding that a defendant is
not entitled to a lesser-included offense if the only evidence offered in support of
the lesser charge is “mere speculation”); Hooper v. State, 214 S.W.3d 9, 16 (Tex.
Crim. App. 2007) (“Speculation is mere theorizing or guessing about the possible
meaning of facts and evidence presented.”). There must be affirmative evidence
showing that appellant did not intend to murder Amaro at the time the gun was
fired. Compare Ross v. State, 861 S.W.2d 870, 872, 877 (Tex. Crim. App. 1992)
(op. on reh’g) (holding that a defendant was entitled to an instruction on felony
murder as a lesser-included offense of capital murder where the defendant
affirmatively stated in his confession that his gun went off when he shoved his
robbery victim), with Gonzalez v. State, 296 S.W.3d 620, 626–27 (Tex. App.—El
Paso 2009, pet. ref’d) (holding that a “possibility” of an accidental discharge
would not support an instruction on felony murder, without affirmative evidence
showing that the shooting was unintentional). Appellant has not cited to any
affirmative evidence in his brief.

      The record reflects that Flores and Martinez were the only two individuals
who witnessed the shooting, but neither of them testified at trial. Instead, they
spoke with a sheriff’s deputy, who repeated their witness statements to the jury.
According the deputy, Flores and Martinez saw Amaro fighting with his attackers
in the moments before they shot him. However, there was no testimony, or even a

                                         15
suggestion, that Amaro had been fighting over possession of the gun, or that the
gun had accidentally discharged during the struggle. We therefore conclude that
there is no basis from which a jury could have rationally found that appellant
intended to rob Amaro, but not murder him. See Adanandus v. State, 866 S.W.2d
210, 230–31 (Tex. Crim. App. 1993) (holding that a felony murder charge was not
warranted, despite evidence of a struggle between the defendant and the
complainant, where there was “no evidence that the parties were at any point
struggling over the gun”).

      Appellant was not entitled to an instruction on the lesser-included offense of
felony murder, and the trial court did not abuse its discretion by denying
appellant’s request for the submission.

                             AGGRAVATED ASSAULT

      In a related complaint, appellant argues that the trial court abused its
discretion by refusing to instruct the jury on the lesser-included offense of
aggravated assault. We review this complaint under the same standard as before,
considering first whether aggravated assault is actually a lesser-included offense of
capital murder, and then whether there is some evidence of probative value that
supports the requested instruction.

      The Court of Criminal Appeals has recognized that aggravated assault can
be a lesser-included offense of capital murder. See Dowden v. State, 758 S.W.2d
264, 269 (Tex. Crim. App. 1988); see also Landry v. State, 227 S.W.3d 380, 382
(Tex. App.—Texarkana 2007, no pet.). Thus, the first part of the test is satisfied.

      To satisfy the second part, there must be some evidence that appellant
intended to commit an aggravated assault, but not a murder. See Dowden, 758
S.W.2d at 269. This burden is met if the record supports a finding that appellant


                                          16
only intended to cause serious bodily injury, and not death. See Tex. Penal Code
§ 22.02(a) (defining aggravated assault); Tex. Code Crim. Proc. art. 37.09(2)
(providing that an offense is a lesser-included offense if it can be established
through a lesser showing of injury than the charged offense).

      After independently poring through the record, we are not aware of any
evidence that would support the submission of an instruction for aggravated
assault. Appellant, likewise, has not cited to any evidence showing that, if he were
one of the attackers, he only intended to cause serious bodily injury.

      Appellant asserts in his brief, however, that “there was no evidence
presented at trial to establish that the individual who shot and killed Raul Amaro
did so with the specific intent to cause his death.” This argument is unpersuasive. It
is not enough to argue that there was a lack of evidence to support the greater
offense. There must instead be “affirmative evidence that both raises the lesser-
included offense and rebuts or negates an element of the greater offense.” See
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012); see also Dowden,
758 S.W.2d at 269 (“A charge on the offense of aggravated assault would be
required only if testimony was introduced from sources indicating a lack of intent
on the part of appellant to kill the deceased.” (emphasis added)). Even if appellant
could show that there was no evidence of an intent to kill—and he cannot, for the
reasons explained above—there is still no affirmative evidence from which a jury
could rationally conclude that appellant was guilty of only aggravated assault.

      The trial court did not abuse its discretion by refusing to submit an
instruction on the lesser-included offense of aggravated assault.




                                         17
                            CLOSING STATEMENTS

      The prosecutor made the following comments in her final summation:
“Please, please, go back there. Do the right thing. Show the Amaro family that
there is justice in our country. Show them that we are willing to do the right thing.”
Appellant objected to these remarks as being outside the scope of permissible
closing statements. The trial court overruled the objection, and on appeal, appellant
contends that the trial court’s ruling was erroneous.

      Permissible closing statements generally fall within one of four areas: (1) a
summation of the evidence, (2) a reasonable deduction from the evidence, (3) an
answer to argument of opposing counsel, or (4) a plea for law enforcement. See
Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A closing statement
that exceeds these bounds is improper, and the trial court commits error when it
(1) overrules an objection to the statement, (2) refuses an instruction to disregard
the statement after sustaining an objection to the statement, or (3) fails to grant a
mistrial necessitated because of the statement. See Watts v. State, 371 S.W.3d 448,
457 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      Appellant contends that the prosecutor encouraged the jurors “to place
themselves in the shoes of the victim’s family,” and that her closing statement was
therefore improper. We disagree. The prosecutor did not ask the jurors to render a
verdict based on what the Amaro family desired. Instead, she urged them to
convict appellant because the evidence supported a verdict of guilty. The
prosecutor’s closing statement qualified as a plea for law enforcement, and the trial
court did not abuse its discretion by overruling the objection. Cf. Ayala v. State,
267 S.W.3d 428, 435–36 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d)
(closing statement was a proper plea for law enforcement when the prosecutor said,
“I hope you also think of Carmen, and her children, and Juan, and the justice

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they’re entitled to. . . . And on this day, when you’re in the 12 seats, I ask you to
deliver them that justice. . . . Convict that man of the offense that he deserves to be
convicted of, capital murder. There’s nothing, nothing else that is fair and right in
this case.”); Smith v. State, 846 S.W.2d 515, 517–18 (Tex. App.—Houston [14th
Dist.] 1993, pet. ref’d) (closing statement was a proper plea for law enforcement
when the prosecutor encouraged the jury to “do the right thing” before invoking
concerns about crime on the streets and the impact of that crime on members of the
community).

                                  CONCLUSION

      Appellant’s five issues are overruled and the judgment of the trial court is
affirmed.




                                        /s/    Tracy Christopher
                                               Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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