                                   NUMBER 13-08-00666-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI – EDINBURG


ABELINO CANTU, JR. A/K/A
AVELINO CANTU, JR.,                                                                            Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                            Appellee.


                        On appeal from the 214th District Court
                              of Nueces County, Texas.


                             MEMORANDUM OPINION
                   Before Justices Yañez, Garza, and Benavides
                   Memorandum Opinion by Justice Benavides

        Avelino Cantu Jr. (“Cantu”)1 appeals his conviction for manslaughter of his son,


        1
           The nam es Abelino Cantu, Jr. and Avelino Cantu, Jr. both appear in the record to represent the
appellant in this case. For that reason, this case has been styled Abelino Cantu, Jr., a/k/a Avelino Cantu, Jr.
v. The State of Texas.
Avelino Cantu III (“Avelino”). See TEX . PENAL CODE ANN . § 19.04 (Vernon 2003). After a

jury trial on an indictment for murder, Cantu was found guilty of the lesser-included offense

of manslaughter. Id. The jury assessed punishment at three years’ confinement in the

Texas Department of Criminal Justice-Institutional Division. Id. § 12.33 (Vernon Supp.

2010).

         By two issues, Cantu argues that the trial court erred in denying his requested jury

charge instructions on: (1) self-defense; and (2) the lesser-included offense of criminally

negligent homicide. We affirm.

                                       I. BACKGROUND

         On April 10, 2008, Cantu shot and killed his adult son, Avelino. On that morning,

Avelino was engaged in an argument with his mother, Yolanda Cantu, and was told that

he could no longer stay in the residence. Avelino then flew into a rage and overturned the

kitchen table, threw a flowerpot, and threw Yolanda’s cell phone.

         When Cantu came home, he confronted his son about the argument, and Avelino

threatened him with a knife. Once Avelino calmed down, Cantu, Yolanda and their

grandchild left the home hoping that Avelino would soon leave the residence. Cantu

testified that at that time, he was afraid for his life, so he retrieved a handgun from his

workshop before he left.

         Within a half hour, Cantu, Yolanda and their grandchild returned to the home and

found that Avelino had not left. After waiting in the car for five to ten minutes while Yolanda

went to retrieve some personal items, Cantu eventually went inside where Avelino

threatened him again. According to Cantu’s testimony, Avelino threatened to kill him. After

several threats, Avelino then began to punch Cantu, and Cantu, thereafter, retreated

                                              2
outside the home. Avelino caught up with him and continued the attack. Cantu testified

that he thought Avelino had a weapon. Cantu fired one shot that struck Avelino in the

chest and killed him.

       Yolanda testified that after going outside, Cantu and Avelino were eventually

separated and were on opposite sides of the driveway to their home when the shot was

fired. Although Cantu agreed with Yolanda’s statement on cross-examination, he had

earlier testified that he was in fear for his life and that his son was “right on [him].” Cantu

also testified that he intended to fire a shot into the ground, into a wall, or into Avelino’s leg.

       Cantu and his wife both testified that Avelino had a long history of violent and anti-

social behavior. Cantu testified that Avelino had threatened him with a baseball bat and

a knife on previous occasions, had choked one of his brothers, had chased Cantu’s dog

with an axe with the intent to kill the dog, had assaulted and threatened a homeless man,

had threatened another inmate while in jail, and was a member of street and prison gangs.

       At the close of evidence, defense counsel asked that the trial court include

instructions on self-defense in the jury charge, noting that Cantu’s entire trial strategy

revolved around the concept of self-defense. The trial court denied the request, and

further denied the request for an instruction on criminally negligent homicide. The jury

found Cantu guilty of manslaughter, and this appeal ensued.

                                         II. DISCUSSION

A.     Self-Defense

       By his first issue, Cantu argues that there was some evidence to support a finding

of self-defense, and therefore, the jury should have been given an instruction on the

affirmative defense. Whether or not this constituted error, we find that Cantu did not show

                                                3
actual harm.

       1.      Applicable Law

       “An accused has the right to an instruction on any defensive issue raised by the

evidence, whether that evidence is weak or strong, unimpeached or contradicted, and

regardless of what the trial court may or may not think about the credibility of the defense.”

Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). The accused’s testimony

alone may be sufficient to raise a defensive theory requiring a charge. Id. The failure to

instruct the jury on self-defense when it is raised by the evidence is subject to harmless

error analysis. Id. at 494. Consequently, we consider (1) whether the evidence, viewed

in the light most favorable to Cantu, is sufficient to raise the issue of self-defense; and (2)

whether failure to include the requested jury instructions constituted harmful error. See

id.; Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

       In order to establish the affirmative defense of self defense with deadly force, a

defendant must present some evidence that: (1) he would be justified in using force

against the other under Texas Penal Code section 9.31; (2) a reasonable person in the

actor's situation would not have retreated; and (3) he reasonably believed the deadly force

was immediately necessary to protect himself against the other's use or attempted use of

unlawful deadly force. See TEX . PENAL CODE ANN . §§ 9.31(a), 9.32 (Vernon Supp. 2009).

       The “apparent danger” doctrine allows a person to defend himself from apparent

danger to the same extent as he would if the danger were real; therefore, no evidence is

necessary to show that the aggressor was actually using or attempting to use deadly force.

See, e.g., Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980). However, the

statutory requirement that the belief must be reasonable mitigates this doctrine because



                                              4
it requires that a reasonable person would have believed there was a danger of death or

serious bodily injury2; apparent danger is not judged solely by the accused’s subjective

perception. See TEX . PENAL CODE ANN . § 9.32; Semaire, 612 S.W.2d at 530.

         If there was some evidence for each of these three elements, the trial court should

have given a jury instruction on the defense of self-defense. If the trial court erred, “we

must reverse the conviction if appellant suffered any actual harm by the omission of the

defensive instruction.” Carmen v. State, 276 S.W.3d 538, 546 (Tex. App.–Houston [1st

Dist.] 2008, pet. ref’d). When conducting a harm analysis, a reviewing court may consider

the following four factors: (1) the charge itself; (2) the state of the evidence including

contested issues and the weight of the probative evidence; (3) arguments of counsel; and,

(4) any other relevant information revealed by the record of the trial as a whole. Hutch v.

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing Bailey v. State, 867 S.W.2d 42,

43 (Tex. Crim. App. 1993)).

         2.       Error and Harm Analysis

         Assuming, without deciding, that Cantu provided some evidence to support the

elements necessary to establish his affirmative defense, we address the requirement that

Cantu must demonstrate actual harm caused by the failure to give the instruction on self-

defense. To demonstrate actual harm, Cantu should have analyzed the charge itself, the

other evidence, the arguments of counsel or any other relevant factors that would show


         2
            “Deadly force” m eans “force that is intended or known by the actor to cause, or in the m anner of
its use or intended use is capable of causing, death or serious bodily injury.” T EX . P EN AL C OD E A N N . § 9.01(3)
(Vernon 2003). “Serious bodily injury” is defined as any injury that “creates a substantial risk of death or that
causes death, serious perm anent disfigurem ent, or protracted loss or im pairm ent of the function of any bodily
m em ber or organ.” Id. § 1.07(a)(46) (Vernon 2003).




                                                          5
actual harm. See Hutch, 922 S.W.2d at 171. The State contends that Cantu failed to

perform any harm analysis and therefore failed to demonstrate actual harm. We agree.

Cantu's only discussion of harm is contained in his reply brief, in which he asserted:

       It is clear from the entire record, from the voir dire, and throughout the
       presentation of evidence that the appellant's entire defense was that of
       self-defense. By not granting the appellant's request for the self-defense
       in the charge, the court greatly harmed the appellant's ability to defend
       himself at trial. Therefore the actual harm test outlined in Almanza was met.

Cantu's bare assertion of harm fails to address the charge itself, any specific evidence, any

specific arguments of counsel, or any other factors that would demonstrate actual harm.

Accordingly, we conclude that he has failed to demonstrate that the trial court's error, if

any, caused him actual harm. See Id. (requiring that the appellant must show some actual

harm in order for a denial of a requested jury instruction to be reversible error); see also

TEX . R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.”). For this

reason, we overrule Cantu’s first issue.

B.     Criminally Negligent Homicide

       By his second issue, Cantu argues that the court erred in not instructing the jury on

the lesser-included offense of criminally negligent homicide. Again, we disagree.

       1.     Applicable Law

       As a matter of law, “[c]riminally negligent homicide is a lesser-included offense of

murder.” Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.–Houston [1st Dist.] 2006, pet.

ref’d) (citing Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992)). After the

determination has been made that a specific crime is a lesser-included offense of the crime

charged against the accused, the accused is entitled to have the jury instructed on the



                                             6
lesser offense so long as there is some evidence that would permit a jury to rationally find

that, if the defendant is guilty, he is guilty only of the lesser-included offense. Hall v. State,

225 S.W.3d 524, 536 (Tex. Crim. App. 2007).

       In this step of the analysis, anything more than a scintilla of evidence may be
       sufficient to entitle a defendant to a lesser charge. In other words, the
       evidence must establish the lesser included offense as a valid, rational
       alternative to the charged offense.

Id. (internal quotations omitted).

       As opposed to the crime of murder, which requires a mental state of higher

culpability, the crime of criminally negligent homicide requires only that the accused ought

to have been aware of a substantial and unjustifiable risk presented by the circumstances.

Compare TEX . PENAL CODE ANN . § 19.02 (Vernon 2003) (murder), with id. § 19.05

(criminally negligent homicide), and id. § 6.03(d) (culpable mental states). To constitute

criminally negligent homicide, “[t]he risk must be of such a nature and degree that the

failure to perceive it constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the actor's standpoint.”

Id. § 6.03(d). A charge of criminally negligent homicide, then, is only justified when the

accused should have known the risk, but for whatever reason, failed to recognize it. “If the

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

conduct created, he is not entitled to a charge of criminally negligent homicide.” Trujillo,

227 S.W.3d at 168 (citing Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985)).

       2.      Error Analysis

       In this case, Cantu used a gun to cause Avelino’s death.               "Evidence that a

defendant knows a gun is loaded, that he is familiar with guns and their potential for injury,




                                                7
and that he points a gun at another indicates a person who is aware of a risk created by

that conduct and disregards the risk." Id. This evidence does not establish that Cantu was

unaware of the risk. See id.

        In support of his second issue on appeal, Cantu points to his own testimony that “he

fired a shot intending it to go into the ground, into a wall, or into [Avelino’s] leg.” This

evidence could only be helpful in determining if the killing was intentional and does not lend

any support to the requirement that Cantu was unaware of the dangers that surrounded

his conduct. In fact, Cantu testified that he loaded the gun, he knew how to fire the gun,

he had fired other guns in the past, and he intended to use it to protect his life—indicating

not only knowledge of the risk, but also the expectation that he could exploit that risk in

order to protect himself.

        We find no evidence to support a jury instruction for criminally negligent homicide,

and therefore, we overrule Cantu’s second issue. Finding no error, we need not address

whether failure to have the jury instructed on this point was harmful. See TEX . R. APP. P.

47.1.

                                      III. CONCLUSION

        For the foregoing reasons, we affirm the trial court’s final judgment.



                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice

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

Delivered and filed the
30th day of November, 2010.



                                              8
