                                 MEMORANDUM OPINION
                                        No. 04-11-00435-CR

                                     Terrance M. FLETCHER,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 227th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2010CR1384
                          Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: May 2, 2012

AFFIRMED

           Terrance M. Fletcher was convicted by a jury of murder. On appeal, Fletcher asserts: (1)

the evidence is insufficient to support the jury’s verdict; (2) the trial court erred in denying his

request to include criminally negligent homicide as a lesser included offense in the charge; (3)

the trial court abused its discretion in admitting evidence of an extraneous offense; and (4) the

trial court abused its discretion in denying his motion for a mistrial after three jurors were

observed separated from the other jurors. We affirm the trial court’s judgment.
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                                          SUFFICIENCY

       In evaluating the legal sufficiency of the evidence to support a criminal conviction, “we

consider all the evidence in the light most favorable to the verdict and determine whether, based

on that evidence and reasonable inferences therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). We defer to the responsibility of the trier of fact to draw reasonable

inferences from basic facts to ultimate facts. 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.” Id. “On appeal, the same standard of review is used for both

circumstantial and direct evidence cases.” Id.

       The jury was charged to find Fletcher guilty of murder if it found that he either

intentionally or knowingly caused the death of Rosalinda Vega or if he intended to cause her

serious bodily injury and committed an act clearly dangerous to human life. The jury was also

charged with the law of transferred intent, which holds a person criminally responsible for

causing a result if the only difference between what actually occurred and what he desired,

contemplated, or risked was that a different person was injured, harmed, or otherwise affected.

See TEX. PENAL CODE ANN. § 6.04(b)(2) (West 2011).

       Fletcher challenges the sufficiency of the evidence to show that he had the requisite

culpable mental state. Both parties agree that the evidence was required to show that Fletcher

intended the result of his conduct. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.

1995). Intent can be inferred from the acts, words, and conduct of the accused and also from the

extent of the victim’s injuries. Id. Intent can also be inferred from the use of a deadly weapon.

Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003).



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       Seth Ryan Coronado was visiting his father, Robert Coronado, Jr. (“Big Robert”), when

he became upset. Eventually, Seth told his father that his mother’s boyfriend, Fletcher, had

abused him by putting his hands on him. Seth was afraid to tell his father because he had been

told that he would not be able to see his father again if he told him. Big Robert’s other son,

Robert Coronado III (“Little Robert”), gave Fletcher’s phone number to Big Robert, and Big

Robert called and confronted both Fletcher and Seth’s mother, Jessica Martinez. A short time

later, Martinez arrived to pick up her sons. Although Martinez had custody of Seth, Big Robert

had custody of Little Robert. Martinez was yelling that she wanted to get her sons away from

Big Robert’s home before “something happened.” Big Robert testified that a threat had been

made and, “Supposedly, they were going to get hurt.” Although Martinez left with Seth, Little

Robert refused to go with her.

       Martinez was observed driving away, but she quickly stopped beside Fletcher’s truck

which was parked approximately one block down the street. Big Robert and a friend, Tony

Villarreal, decided to follow Fletcher’s truck. After they left, Fletcher repeatedly called Big

Robert’s home. Although Big Robert’s girlfriend, Rosalie Cruz, answered the phone once, she

quickly hung up and did not answer any further calls.

       Big Robert and Tony returned to the house about five or ten minutes after they left. Big

Robert exited the car and told Cruz, his mother, Rosalinda Vega, and Little Robert to go back

inside the house; however, they remained outside by the gate while Big Robert’s sister

approached Tony’s car.     As they stood talking, Little Robert called out that Fletcher was

returning. As Fletcher approached where everyone was standing, he slowed his truck, changed

lanes so he was driving on the wrong side of the road closest to where everyone was standing,

and threw a brick out the window. The brick struck Vega, who immediately fell to the ground



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bleeding from her eyes, nose, mouth, and head. After throwing the brick, Fletcher laughed, sped

up, and drove off. Vega remained comatose and eventually died. Detective Timothy O’Connell,

who was assigned to investigate the case, testified that the brick was a deadly weapon in its

manner of use.

       Based on the evidence presented, the jury could have found that Fletcher threatened to

harm occupants of Big Robert’s home after Big Robert confronted him. From Fletcher’s actions

in slowing his truck and changing lanes, the jury could have inferred that Fletcher intended to hit

someone with the brick. From Fletcher’s laugh, the jury could have inferred that Fletcher

achieved his goal when the brick struck Vega and she fell. Finally, the jury could have inferred

Fletcher’s intent from his use of the brick, which Detective O’Connell described as a deadly

weapon, and the extent of Vega’s injuries. See Brown, 122 S.W.3d at 800; Patrick, 906 S.W.2d

at 487. Accordingly, based on the evidence presented, a rational jury could have found that

Fletcher intended to cause serious bodily injury and committed an act clearly dangerous to

human life by deliberately throwing the brick at the occupants of the yard. Fletcher’s first issue

is overruled.

                                   LESSER INCLUDED OFFENSE

       “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). Under the

second prong of the analysis, the reviewing court must “determine if there is some evidence in

the record which would permit a jury to rationally find that, if the defendant is guilty, he is guilty




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only of the lesser-included offense.” Id. at 145. “The evidence must establish the lesser-

included offense as a valid, rational alternative to the charged offense.” Id

       Fletcher argues that the trial court erred in overruling his request for the lesser included

offense of criminally negligent homicide. The evidence presented, however, did not establish

criminally negligent homicide as a valid, rational alternative. A person acts with criminal

negligence if the actor ought to be aware of a substantial and unjustifiable risk that a particular

result will occur, but fails to perceive that risk. See TEX. PENAL CODE ANN. § 6.03(d) (West

2011). Based on Fletcher’s actions in slowing his truck and changing lanes to better position

himself for aiming the brick, a rational jury could not have found that Fletcher failed to perceive

the risk that he could cause serious bodily injury if he hit one of the occupants of the yard with

the brick.   Moreover, although the jury was charged with the lesser included offense of

manslaughter, enabling the jury to find Fletcher guilty of a lesser offense if it found that Fletcher

was aware of but consciously disregarded a substantial and unjustifiable risk, the jury convicted

Fletcher of murder. See Masterson v. State, 155 S.W.3d 167, 171-72 (Tex. Crim. App. 2005)

(holding omission of criminally negligent homicide from jury charge resulted in no harm where

jury rejected manslaughter as a lesser included offense in the charge and convicted defendant of

murder). Fletcher’s second issue is overruled.

                                     EXTRANEOUS OFFENSE

       Fletcher next contends the trial court abused its discretion in admitting into evidence the

allegation that he abused Seth. We review a trial court’s ruling on the admissibility of evidence

under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991). “[I]f the trial court’s evidentiary ruling is correct on any theory of law applicable to




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that ruling, it will not be disturbed” regardless of the reason given for the trial court’s ruling. De

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

       Although evidence of extraneous offenses is normally inadmissible pursuant to Rule

404(b) of the Texas Rules of Evidence, evidence of extraneous offenses is admissible as same

transaction contextual evidence to show the context in which a criminal act occurred. Wesbrook

v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). “This evidence is considered ‘res gestae,’

under the reasoning that events do not occur in a vacuum, and the jury has a right to hear what

occurred immediately prior to and subsequent to the commission of that act so that it may

realistically evaluate the evidence.” Id. “This type of evidence results when an extraneous

matter is so intertwined with the State’s proof of the charged offense that avoiding reference to it

would make the State’s case incomplete or difficult to understand.” Smith v. State, 316 S.W.3d

688, 699 (Tex. App.—Fort Worth 2010, pet. ref’d).

       In this case, the evidence of the alleged abuse was necessary to show what occurred

immediately prior to Fletcher’s driving by Big Robert’s home and throwing the brick at the

yard’s occupants.    The absence of this contextual evidence would “make the State’s case

incomplete or difficult to understand.”      Id.    Accordingly, the trial court did not abuse its

discretion in overruling Fletcher’s objection to the evidence.

                                      MOTION FOR MISTRIAL

       In his final issue, Fletcher contends the trial court erred in denying his motion for mistrial

based on three jurors separating from the other jurors during deliberations. Fletcher cites two

provisions from the Texas Code of Criminal Procedure in support of his argument: article 36.22,

which prohibits a person from conversing with a juror about the case, and article 35.23, which




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requires the court to give jurors proper instructions with regard to their conduct as jurors when

they are separated.

       After the trial judge observed the jurors in the hallway, he questioned them about their

actions. One juror explained that she was calling her eleven-year-old son to ensure that he was

home safe from school. The other two jurors explained that they were using the restroom.

       “A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class of

highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.

2009). “A trial court’s denial of a mistrial is reviewed for an abuse of discretion.” Id. “An

appellate court views the evidence in the light most favorable to the trial court’s ruling,

considering only those arguments before the court at the time of the ruling.” Id. “The ruling

must be upheld if it was within the zone of reasonable disagreement.” Id.

       In this case, there is no evidence in the record that any of the three jurors conversed with

another person “about the case.” In fact, when questioned by the trial judge, all three jurors

denied discussing the case with anyone. Accordingly, the trial court did not abuse its discretion

in denying the motion for mistrial based on an alleged violation of article 36.22. See Thomas v.

State, 336 S.W.3d 703, 716 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

       With regard to article 35.23, a jury is permitted to separate unless the court on its own

motion or on the motion of a party orders that the jury is not allowed to separate after it has been

given the charge. TEX. CODE CRIM. PROC. art. 35.23; see also Sanchez v. State, 906 S.W.2d 176,

178 (Tex. App.—Fort Worth 1995, pet. ref’d) (noting 1989 statutory amendment to article 35.23

no longer forbids separation of jurors after the court reads the charge). The record in this case

contains no motion by Fletcher to prevent the jury from separating. Although Fletcher contends

the trial court ordered the jury not to separate early in the trial, the trial court merely commented



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that the jury’s schedule would change once deliberations began because the jury would need to

stay together in an attempt to reach a unanimous verdict. This general comment does not rise to

the level of an order as contemplated by article 35.23. Accordingly, the trial court did not err in

denying the motion for a mistrial based on article 35.23. Finally, Fletcher contends the record

failed to establish that the other jurors ceased deliberating while the three jurors were absent

from the room. If Fletcher’s attorney believed additional questioning of the other jurors was

necessary, he had a duty to request that additional questioning as a lesser remedy to a mistrial.

See Ocon, 284 S.W.3d at 886-87. A mistrial would be appropriate only if Fletcher had proven an

error incurable by less drastic remedies. Id. at 888.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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