

 


 


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,
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
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
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
it requires that a reasonable person would have believed there was a danger of death or
serious bodily injury (2)
; 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
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
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,
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.
1.   The names 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.
2.   "Deadly force" means "force that is intended or known by the actor to cause, or in the manner of
its use or intended use is capable of causing, death or serious bodily injury." Tex. Penal Code Ann. § 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 permanent disfigurement, or protracted loss or impairment of the function of any bodily
member or organ."  Id. § 1.07(a)(46) (Vernon 2003). 


