Opinion issued October 11, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00799-CR
                           ———————————
                  JORDAN QUENTIN WILSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Case No. 1408418


                         MEMORANDUM OPINION

      Jordan Wilson shot and killed Toyurean Young but argued at trial that the

shooting was unintentional. A jury convicted him of murder and sentenced him to

50 years’ confinement.1 He argues that (1) legally insufficient evidence exists to


1
      See TEX. PENAL CODE ANN. § 19.02.
support his murder conviction and (2) the trial court erred by denying his request

for a jury question on the lesser-included offense of manslaughter. We affirm.

                                   Background

      Wilson and Young had been members of the same street gang and the same

rap music “clique,” which Young ran. Wilson left Young’s clique and began

making rap videos under another “clique” name. According to a mutual friend,

after Wilson left Young’s group, the two had an argument through social media—

specifically Twitter—over whose rap was better. During this argument, Wilson and

Young talked about fighting each other and videotaping the fight.

      Shortly after their online exchange, Wilson and Young saw each other in a

McDonalds parking lot and agreed to walk to a nearby apartment complex to fight.

They “set up the fight” and began punching each other. Ten minutes into the

fistfight, Young yelled that Wilson had a gun. Young stopped fighting and walked

back to the McDonalds. Wilson followed.

      Back at the McDonalds, Young announced that Wilson was “getting in [his]

pockets” as if he “want[s] to do something.” The two exchanged words, then

Young shouted a profane disparagement of Wilson’s rap group. At that moment,

the two men were standing five to seven feet from each another. Within “four or

five” seconds, Wilson shot at Young. Young was shot once in his lower back and a

second time in his arm. He died the next day from his injuries.


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      Wilson’s trial theory was not that someone else shot Young. It was that he

shot him but he did so only as “an afterthought” and without intent to kill.

According to Wilson, because he did not have the intent to kill Young, the crime

was no more than manslaughter.

      Several witnesses testified that they saw the fistfight, but no one saw the

actual shooting. Joshua Agboso, who knew both Wilson and Young, testified that

he was there, saw Wilson and Young fight, heard Young yell disparagements at

Wilson, and, when his back was turned to the two men, heard gunshots. He

testified that he did not see Wilson shoot Young and did not know what Wilson

was thinking or intending when he did it. On cross-examination, Wilson’s attorney

impeached Agboso with an earlier statement he had given to police, telling them,

“I know that he didn’t mean to kill him,” and, “[Wilson] probably just shot [at

Young] to scare him.”

      Based on Agboso’s earlier statements to police investigators, Wilson

requested a jury question on the lesser-included offense of manslaughter. The trial

court denied the request, charging the jury only on the offense of murder. The jury

found Wilson guilty of murder and assessed punishment of 50 years’ confinement.

      Wilson appeals his conviction.




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                           Legally Sufficient Evidence

      Wilson argues that the evidence is legally insufficient to support his

conviction for murder because it conclusively establishes a reasonable doubt that

he intentionally or knowingly caused Young’s death.

A.    Standard of review

      We review sufficiency of the evidence using the standard enunciated in

Jackson v. Virginia, 443 U.S. 307, 317−20, 99 S. Ct. 2781, 2788–89 (1979). See

Brooks v. State, 323 S.W.3d 893, 898–912 (Tex. Crim. App. 2010). Under that

standard, “the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We consider all reasonable inferences that may be drawn from the evidence

in making our determination, including all direct and circumstantial evidence.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      Evidence is insufficient in four circumstances: (1) no evidence exists that is

probative of an element of the offense in the record; (2) only a “modicum” of

evidence exists that is probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the alleged acts do not




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establish the criminal offense charged. See Jackson, 443 U.S. at 314–15, 320;

Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013).

      The jury has the exclusive role of evaluating the facts, the credibility of the

witnesses, and the weight a witness’s testimony should be given. Penagraph v.

State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,

125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury

may choose to believe all, some, or none of a witness’s testimony. See Davis v.

State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And

the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000).

      Under the Jackson standard, we defer to the factfinder “to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778. If there are conflicts in the evidence, we must presume the

factfinder resolved the conflicts in favor of the verdict and defer to that

determination, as long as it is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793. If the evidence is insufficient, we must reverse and enter an order of

acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).




                                         5
B.    Evidence is legally sufficient

      Wilson contends that the evidence is insufficient to support his conviction

for murder. First, he argues that the State presented no evidence that he had a

specific intent to kill Young. But “the specific intent to kill may be inferred from

the use of a deadly weapon.” Cavazos v. State, 382 S.W.3d 777, 384–85 (Tex.

Crim. App. 2012) (overruling legal-sufficiency challenge based on evidence that

defendant “pull[ed] out a gun, point[ed] it at someone, [and] pull[ed] the trigger

twice”). The jury received evidence that Wilson stood five to seven feet from

Young, fired two shots at Young from close range, and struck Young from behind

in his upper body with both shots, causing his death. This evidence supports the

jury’s implicit finding that Wilson acted intentionally or knowingly. Id. This is

legally sufficient evidence to support his conviction for murder.

      Second, Wilson argues that there was contradictory evidence—namely that

Agboso told the police that Wilson did not intend to kill Young and probably just

shot at him to scare him. In a legal-sufficiency review, we do not weigh

contradictory evidence or evaluate witness credibility. Penagraph, 623 S.W.2d at

343. We must presume that the jury resolved any conflict in the evidence in favor

of its verdict. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Penagraph, 623

S.W.2d at 343 (“A jury is entitled to accept one version of the facts and reject

another or reject any of a witness’[s] testimony.”). Contradictory evidence will not


                                          6
diminish the legal sufficiency of the evidence that supports the verdict. See

Penagraph, 623 S.W.2d at 343.

      We overrule Wilson’s legal-sufficiency issue.

                     Refused Jury Question on Manslaughter

      Wilson next argues that the trial court erred by denying his request for a jury

question on the lesser-included offense of manslaughter. He argues that Agboso’s

testimony was “some evidence” from which a rational jury could acquit Wilson of

the greater offense of murder and convict him of the lesser-included offense of

manslaughter. The State responds that Agboso’s testimony was “mere

speculation,” “does not support a finding of recklessness,” and “does not rise to the

level that would convince a rational jury to find that if [Wilson] was guilty, he was

guilty only of the lesser-included offense of manslaughter.”

A.    Applicable law

      To determine whether a defendant is entitled to a jury charge on a lesser-

included offense, we follow a two-step process: (1) “the lesser included offense

must be included within the proof necessary to establish the offense charged” and

(2) “some evidence must exist in the record that would permit a jury rationally to

find that if the defendant is guilty, he is guilty only of the lesser offense.” Rousseau

v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993) (emphasis removed).




                                           7
The first prong is satisfied because manslaughter is a lesser-included offense of

murder. Cavazos, 382 S.W.3d at 384.

      To meet the second prong, “[i]t is not enough that the jury may disbelieve

crucial evidence pertaining to the greater offense. Rather, there must be some

evidence directly germane to a lesser-included offense for the factfinder to

consider before an instruction on a lesser-included offense is warranted.” Skinner

v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). While “it does not matter

whether the evidence is strong, weak, unimpeached or contradicted,” the evidence

must be affirmative evidence directly relevant to the lesser offense and support a

rational conclusion that the defendant is guilty of only the lesser offense. Bignall v.

State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).

      The “only difference” between murder and manslaughter is the mental state

required for the offenses. Cavazos, 382 S.W.3d at 384. The mental state required

for a murder conviction is “intentionally” or “knowingly,” while the mental state

for manslaughter is “recklessly.” Compare TEX. PENAL CODE ANN. § 19.02

(murder) with § 19.04 (manslaughter). A defendant acts recklessly if he “is aware

of but consciously disregards a substantial and unjustifiable risk that . . . the result

will occur . . . [such that the actor’s disregard of the risk] 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(c).


                                           8
      Thus, to satisfy the second prong to be entitled to a lesser-included-offense

question on manslaughter, there must be “some affirmative evidence that [the

defendant] did not intend to cause serious bodily injury when he shot the victim”

and “some affirmative evidence from which a rational juror could infer that [the

defendant] was aware of but consciously disregarded a substantial and unjustifiable

risk that death would occur as a result of his conduct,” in other words, that he acted

recklessly. Cavazos, 382 S.W.3d at 385. “Meeting this threshold requires more

than mere speculation—it requires affirmative evidence that both raises the lesser-

included offense and rebuts or negates an element of the greater offense.” Id.

B.    Agboso’s assertions were speculation, not affirmative evidence

      When asked whether Wilson intended to kill Young, Agboso testified, “I

don’t know. . . . I didn’t know what he was thinking.” Wilson established on cross-

examination that Agboso previously told the investigating officers, “I know that he

didn’t mean to kill him,” and, “[Wilson] probably just shot [at Young] to scare

him.” But these statements cannot be plucked from the record, isolated from the

rest of the testimony and other evidence, and viewed in a vacuum to support

submission of a lesser offense. See Godsey v. State, 719 S.W.2d 578, 584 (Tex.

Crim. App. 1986); Shannon v. State, No. 08-13-00320-CR, 2015 WL 6394922,

at *9 (Tex. App.—El Paso Oct. 21, 2015, no pet.); Arnold v. State, 234 S.W.3d

664, 671–72 (Tex. App.—Houston [14th Dist.] 2007, no pet.). We must review the


                                          9
entire record to determine whether a rational jury could have concluded that

Wilson did not act intentionally. See Shannon, 2015 WL 6394922, at *9 (citing

Mathis v. State, 67 S.W.3d 918, 926 (Tex. Crim. App. 2002)).

      Agboso’s other testimony establishes that his statements were no more than

speculation: Agboso never saw Wilson’s gun, never saw Wilson use the gun, and

provided no basis for his theory that the shooting was only to scare Young. Agboso

testified that he only knew about the gun because Young mentioned it as he ended

the fistfight at the apartments. Agboso did not see Wilson pull out his gun just

before he shot Young. Nor did he see Wilson actually shoot Young—either time.

Agboso explained that his back was turned to both men when he heard the first

gunshot. After hearing that gunshot, he immediately ran into the McDonalds

because he was afraid of being shot by Wilson—whom he knew to be the only

person with a weapon. He did not see Wilson fire the second shot. After hearing

both shots, he hid from Wilson in the McDonalds.

      Agboso’s actions during the shooting were consistent with his statements

that he feared being shot by Wilson; they do not support a theory that the shooting

was accidental or without intent to kill. There is no evidence that Wilson told

Agboso after the shooting it was an accident or that he intended something other

than to shoot Young when he pulled out his gun and fired it twice in Young’s

direction while standing only a body-length away. There is no evidence of why


                                        10
Agboso once made the statements to the police that it was only to scare Young and

not intended to kill him. Nor is there any evidence to support a conclusion that

Agboso had any factual basis for his assertions when he made them. All of

Agboso’s other testimony indicates that he viewed the shooting as a threat, not as

an accident.

      Because Agboso did not witness Wilson’s efforts to shoot Young or receive

any indication from Wilson of what his intentions were when he decided to elevate

the conflict from a consensual fistfight to a shooting, Agboso’s assertions were

nothing more than speculation—a point he acknowledged when he later testified,

“I didn’t know what he was thinking.” See Gross v. State, 380 S.W.3d 181, 188

(Tex. Crim. App. 2012) (defining “speculation” as “the mere theorizing or

guessing about the possible meaning of the facts and evidence” and, by contrast,

defining “inference” as “a conclusion reached by considering . . . facts and

deducing a logical consequence from them”); cf. Cavazos, 382 S.W.3d at 384

(stating that “specific intent to kill may be inferred from the use of a deadly

weapon”).

      Speculation is not affirmative evidence that will support submission of a

lesser-included-offense question. Cavazos, 382 S.W.3d at 385 (“Meeting [the

lesser-included-offense] threshold requires more than mere speculation—it




                                       11
requires affirmative evidence . . . .”). Agboso’s statements are insufficient to

warrant a jury question on manslaughter.

C.    No other affirmative evidence of recklessness

      Wilson points to no other affirmative evidence that he acted only recklessly.

There was no evidence that he inadvertently drew his gun or squeezed the trigger.

There was no evidence about the direction he aimed his weapon that might have

suggested that he intended to miss Young with his shots. In short, there was no

affirmative evidence supporting the conclusion that he was guilty of manslaughter

and not murder. The evidence, instead, was that Wilson and Young fought, Young

disparaged Wilson’s rap clique, and, moments later, Wilson shot Young twice with

a deadly weapon while standing only a few feet away.

      Because the record contains no affirmative evidence that Wilson acted only

recklessly in causing Young’s death, the trial court did not err by denying his

request for a jury question on manslaughter. See Cavazos, 382 S.W.3d at 385

(requiring affirmative evidence that defendant did not intend to cause serious

bodily injury when he shot and affirmative evidence that defendant acted only

recklessly to warrant question on lesser-included offense); see also Forest v. State,

989 S.W.2d 365, 367 (Tex. Crim. App. 1999) (stating that lesser-included offense

must be “valid, rational alternative” to charged offense) (citing Arevalo v. State,

943 S.W.2d 887, 889 (Tex. Crim. App. 1997)).


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      We overrule this issue.

                                   Conclusion

      We affirm Wilson’s conviction.




                                                Harvey Brown
                                                Justice


Panel consists of Justices Jennings, Keyes, and Brown.

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




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