                                                                         ACCEPTED
                                                                     13-14-00338-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                 8/5/2015 3:31:48 PM
                                                              CECILE FOY GSANGER
                                                                              CLERK




              No. 13-14-338-CR
                                        FILED IN
                                13th COURT OF APPEALS
         IN THE COURT OF APPEALS
                             CORPUS CHRISTI/EDINBURG, TEXAS
 FOR   THE THIRTEENTH DISTRICT OF8/5/2015
                                   TEXAS  3:31:48 PM
             AT CORPUS CHRISTI    CECILE FOY GSANGER
                                         Clerk



             JOHNNY FLORES,
               APPELLANT,

                       v.

          THE STATE OF TEXAS,
               APPELLEE.


ON APPEAL FROM THE 148TH DISTRICT COURT
        NUECES COUNTY, TEXAS

          BRIEF FOR THE STATE


                  Douglas K. Norman
                  State Bar No. 15078900
                  Assistant District Attorney
                  105th Judicial District of Texas
                  901 Leopard, Room 206
                  Corpus Christi, Texas 78401
                  (361) 888-0410
                  (361) 888-0399 (fax)
                  douglas.norman@co.nueces.tx.us

                  Attorney for Appellee


  ORAL ARGUMENT IS NOT REQUESTED
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

SUMMARY OF THE ARGUMENT ..............................................................1

ARGUMENT ...................................................................................................2

Reply Point.
The trial court properly denied Flores’ request for a charge on
manslaughter as a lesser-included offense...................................................2

         I. Statement of Facts. ...........................................................................2
         II. The Rousseau Test and the Cognate-Pleadings Approach. ........3
         III. First Prong. ...................................................................................5
         IV. Second Prong. ...............................................................................9

PRAYER ....................................................................................................... 12

RULE 9.4 (i) CERTIFICATION .................................................................. 12

CERTIFICATE OF SERVICE ..................................................................... 13
                                    INDEX OF AUTHORITIES

                                                      Cases

Bell v. State, 501 S.W.2d 137 (Tex. Crim. App. 1973). ..................................8

Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985). ..................................9

Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) .................. passim

Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1984). .........................8

Godsey v. State, 719 S.W.2d 578 (Tex. Crim. App. 1986). ............................8

McKithan v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010). ........................4

Meine v. State, 356 S.W.3d 605 (Tex. App.—Corpus Christi 2011, pet.
ref'd). ......................................................................................................... 4, 10

State v. Meru, 414 S.W.3d 159 (Tex. Crim. App. 2013). ................................7

Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). .........................3

Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992). .........................9

Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009). ..........................4
                                             Statutes & Rules
Tex. Pen. Code § 1.07. .......................................................................... 5, 8, 10

Tex. Pen. Code § 6.03. .............................................................................. 5, 10

Tex. Pen. Code § 19.02. ............................................................................ 5, 10

Tex. Pen. Code § 19.04. ............................................................................ 5, 10

The Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/asphyxia (last accessed August 4, 2015). .................8


                                                          ii
                             NO. 13-14-338-CR

JOHNNY FLORES,                           §   COURT OF APPEALS
         Appellant,                      §
                                         §
V.                                       §   FOR THE THIRTEENTH
                                         §
THE STATE OF TEXAS,                      §
         Appellee.                       §   DISTRICT OF TEXAS

                         BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                   SUMMARY OF THE ARGUMENT

      The trial court properly denied a charge on manslaughter because

murder, as charged in the present indictment, does not share the same

culpable mental state with manslaughter concerning the risk of death. In

addition, even if such a mental state is read into the present indictment, there

was no evidence in the present case that Flores could have been guilty only

of the lesser offense of manslaughter.
                                 ARGUMENT

                                Reply Point.
       The trial court properly denied Flores’ request for a charge on
                  manslaughter as a lesser-included offense.

                            I. Statement of Facts.

        The following evidence was presented at trial relevant to Flores’

mental state at the time he killed the victim by assaulting and asphyxiating

her.

        In his 9-1-1 call, Flores admitted to the operator that he killed his

girlfriend by suffocating her (SX # 4; admitted and played for jury at RR

vol. 3, p. 36)

        In his recorded confession to the police, when asked what happened

on the night of the killing, Flores said, “I just lost it.” He later repeated that

he “lost it” or “snapped.” Specifically, Flores claimed that he was angry

with the victim for giving him a sexually transmitted disease, and that this

anger “pushed [him] over the edge,” that he and the victim started fighting,

that she scratched him, and that he hit her.         Flores admitted to hitting,

slapping and choking the victim, and that he was mad and angry at the time.

Flores did not know how long he choked the victim, but claimed that when

she stopped fighting he “snapped out of it” and checked her pulse. (SX #

82; admitted and played for jury at RR vol. 3, pp. 141-42)


                                        2
      Dr. Ray Fernandez, the medical examiner, testified that the cause of

the victim’s death was mechanical asphyxia, which he explained to be an

outside force pushing on the body and causing a blockage of the mouth,

nose, and/or neck. (RR vol. 3, p. 200) The injuries Dr. Fernandez found on

the victim included a stab wound to the right temple, scrapes and bruises to

the face, a fractured nose, and fractured teeth. (RR vol. 3, pp. 200-01)

      Dr. Troy Martinez, a forensic psychologist who examined Flores,

testified that when someone with the mental illness Flores had is off their

medication, this can effect their impulse control, and they can act

“recklessly,” which to Dr. Martinez meant impulsive or irrational behavior.

(RR vol. 4, pp. 82-83)

      II. The Rousseau Test and the Cognate-Pleadings Approach.

      A two-prong test applies to determine whether an instruction on a

lesser-included offense should be given to the jury: First, the court

determines if the proof necessary to estblish the charged offense also

includes the lesser offense; Second, if this threshold is met, the court must

then consider whether the evidence shows that if the defendant is guilty, he

is guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 382

(Tex. Crim. App. 2012); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.




                                       3
Crim. App. 1993); Meine v. State, 356 S.W.3d 605, 612 (Tex. App.—Corpus

Christi 2011, pet. ref'd).

      The first prong of this test is evaluated under the cognate-pleadings

approach, which asks whether “the indictment for the greater-inclusive

offense either: 1) alleges all of the elements of the lesser-included offense, or

2) alleges elements plus facts (including descriptive averments, such as non-

statutory manner and means, that are alleged for purposes of providing

notice) from which all of the elements of the lesser-included offense may be

deduced.”    Cavazos, 382 S.W.3d at 382 (citing Ex parte Watson, 306

S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh'g)). The Court in Cavazos

explained that “the elements of the lesser-included offense do not have to be

pleaded in the indictment if they can be deduced from facts alleged in the

indictment. In this situation, the functional-equivalence concept may be part

of the lesser-included-offense analysis. Using functional-equivalence, the

court must ‘examine the elements of the lesser offense and decide whether

they are functionally the same or less than those required to prove the

charged offense.’” 382 S.W.3d at 383 (quoting McKithan v. State, 324

S.W.3d 582, 588 (Tex. Crim. App. 2010)).




                                        4
                              III. First Prong.

      The relevant elements of Murder and Manslaughter in the present case

are contained in the following statutory excerpts:

                                   Murder.

      (b) A person commits an offense if he:
            (2) intends to cause serious bodily injury and commits an act
            clearly dangerous to human life that causes the death of an
            individual;
Tex. Pen. Code § 19.02.

      (a) In this code:
             (46) “Serious bodily injury” means bodily 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.
Tex. Pen. Code § 1.07.

                               Manslaughter.

      (a) A person commits an offense if he recklessly causes the death of
      an individual.
Tex. Pen. Code § 19.04.

      (c) A person acts recklessly, or is reckless, with respect to
      circumstances surrounding his conduct or the result of his conduct
      when he is aware of but consciously disregards a substantial and
      unjustifiable risk that the circumstances exist or the result will occur.
      The risk must be of such a nature and degree that its disregard
      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.
Tex. Pen. Code § 6.03.



                                       5
      The Court of Criminal Appeals has acknowledged that, with regard to

a Subsection (b)(2) murder, the only specified mens rea is “the intent to

cause serious bodily injury and the statute does not add a culpable mental

state to the conduct that caused the death,” while manslaughter does require

a reckless mental state concerning the risk that death will occur. Cavazos v.

State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012). In Cavazos, however,

the indictment included an allegation that the clearly dangerous act that

caused death was “shooting [the victim] with a firearm.” Id. at 380. The

majority opinion reasoned that this additional allegation of use of a firearm,

as a deadly weapon per se, carried with it an inference that the defendant

intended to cause the victim’s death, thus under the cognate-pleadings

functional-equivalence concept supplying through the indictment the greater

mens rea necessary to make this particular Subsection (b)(2) murder the

greater offense, and manslaughter the lesser offense, for purposes of the

defendant’s entitlement to a charge on the lesser offense. Id. at 383-84.

      In her concurrence, Presiding Judge Keller further explained why,

under ordinary circumstances and without the boost that the majority

inferred from the deadly weapon addition in the indictment, a Subsection

(b)(2) murder does not contain the same elements as manslaughter:

      The State's task is more difficult if it must prove that the defendant
      contemplated causing “death” than if it need only prove that the

                                      6
      defendant contemplated causing “serious bodily injury.” So, while
      the culpable mental state of “intent” found in § 19.02(b)(2) is greater
      than the culpable mental state of “recklessness” found in the offense
      of manslaughter, the contemplated injury that must be proven in a §
      19.02(b)(2) murder prosecution (serious bodily injury) is less than the
      contemplated injury that must be proven in a manslaughter
      prosecution (death). So, manslaughter does not differ from §
      19.02(b)(2) murder solely on the basis of a lesser culpable mental
      state because manslaughter also differs by requiring proof of a greater
      contemplated injury. Consequently, manslaughter is not a lesser-
      included offense of § 19.02(b)(2) murder.

Id. at 388 (Keller, P.J., concurring). More recently, the Court of Criminal

Appeals has again acknowledged that Subsection (b)(2) murder and

manslaughter contain divergent elements and that application of the

functional-equivalence test was necessary in Cavazos to bridge the gap by

means of the allegation of “shooting with a firearm.” See State v. Meru, 414

S.W.3d 159, 167 n.2 (Tex. Crim. App. 2013)

      In the present case, the indictment charged, in pertinent part, that

Johnny Flores, “on or about JULY 4, 2013, in Nueces County, Texas, did

then and there with the intent to cause serious bodily injury to an individual,

namely, TERRY MECHELL RAMOS, commit and [sic] act clearly

dangerous to human life that caused the death of said TERRY MECHELL

RAMOS, by asphyxia.” (CR p. 7)

      Accordingly, there was no deadly weapon allegation, and thus no

inference that Flores intended to cause anything greater than serious bodily


                                       7
injury. Nor did the allegation that he caused the death “by asphyxia” carry

the same inference that use of a firearm did in Cavazos.

      The term “asphyxia” is defined as “a lack of oxygen or excess of

carbon dioxide in the body that results in unconsciousness and often death

and is usually caused by interruption of breathing or inadequate oxygen

supply.”   The Merriam-Webster Online Dictionary, http://www.merriam-

webster.com/dictionary/asphyxia (last accessed August 4, 2015).

      While shooting with a firearm as a deadly weapon has a long history

of presumed intent to kill, see Cavazos, 382 S.W.3d at 384; Godsey v. State,

719 S.W.2d 578, 580–81 (Tex. Crim. App. 1986); Flanagan v. State, 675

S.W.2d 734, 744 (Tex. Crim. App. 1984); Bell v. State, 501 S.W.2d 137, 138

(Tex. Crim. App. 1973), “by asphyxia” is a nebulous term that says nothing

about the means used by the defendant and could be accomplished in many

different ways, some of which may involve only intent to injure or

incapacitate rather than intent to kill. It is, for example, possible that the

defendant intended by beating and choking the victim to cause serious

bodily injury in the form of “serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ” see Tex.

Penal Code § 1.07 (a)(46), yet not to cause her death. Flores in his appellate

brief implies that his breaking of the victim’s nose, which suggests


                                      8
disfigurement and protracted loss or impairment of function, may in turn

have caused obstruction of her airway and asphyxiation. (Flores Brief pp. 2-

3)

      Therefore, in the present case, unlike Cavazos, manslaughter fails the

first prong of the Aguilar/Rousseau test and was properly denied as a lesser-

included offense.

                            IV. Second Prong.

      Under the second prong, a defendant is entitled to an instruction on a

lesser-included offense if some evidence from any source raises a fact issue

on whether he is guilty of only the lesser, regardless of whether the evidence

is weak, impeached, or contradicted. Cavazos, 382 S.W.3d at 383 (citing

Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985)).

      Evidence may indicate that a defendant is guilty of only the lesser

offense either by refuting or negating other evidence establishing the greater

offense, or by showing that the defendant’s awareness of the risk may be

subject to two different interpretations. Cavazos, 382 S.W.3d at 385 (citing

Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992)).

      However, as the Court in Cavazos stated, “[m]eeting 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


                                      9
the greater offense.” 382 S.W.3d at 385; see also Meine v. State, 356

S.W.3d 605, 612 (Tex. App.—Corpus Christi 2011, pet. ref'd) (requiring

affirmative evidence of a lower culpable mental state in order to entitle the

defendant to an instruction on the requested lesser offense).

      Specifically, as applied to a request for manslaughter in the context of

a Subsection (b)(2) murder by shooting charge, “[t]here must be some

affirmative evidence that Appellant did not intend to cause serious bodily

injury when he shot the victim, and must be some affirmative evidence from

which a rational juror could infer that Appellant was aware of but

consciously disregarded a substantial and unjustifiable risk that death would

occur as a result of his conduct.” Cavazos, 382 S.W.3d at 385.

      In the present case, even assuming that, under the functional-

equivalence concept, the present indictment does charge an intent to cause

death or a substantial risk thereof, what separates murder from manslaughter

is the razor-thin difference between intent to cause bodily injury that creates

a substantial risk of death, see Tex. Penal Code §§ 19.02 (b)(2) and 1.07

(a)(46), and awareness of but consciously disregarding a substantial risk of

death. See Tex. Penal Code §§ 19.04 (a) and 6.03 (c).

      In other words, was there some affirmative evidence in the present

case to show that Flores did not intend to inflict an injury serious enough to


                                      10
create a substantial risk of death but was aware that he was inflicting such an

injury and consciously disregarded the risk?

      Yet, there is no indication that Flores did not intend to injure the

victim when he violently assaulted her. His claims to having “lost it” and

his possible impulsiveness due to mental illness do nothing to negate that

intent. That being the case, it is hard to imagine a situation in which he did

not intend serious bodily injury, in the sense of intending an injury that he

knew would create a substantial risk of death [Subsection (b)(2) Murder],

yet he did intend an injury that he was consciously aware would cause a

substantial risk of death [Manslaughter]. Arguably, the two offenses merge

in this situation, and Flores cannot be innocent of the greater and guilty of

the lesser. He was either guilty of murder, or of neither offense.1

      Accordingly, Flores was not entitled to a charge on the lesser offense,

and his ground of error should be overruled.




1
  The State acknowledges that there could be a situation where the defendant
arguably did not intend any injury or assaultive contact, but still engaged in
reckless conduct that created a substantial risk of lethal injury, such as
shooting a gun into a house without regard to whether it might be occupied
or wildly swinging a baseball bat in a crowded room. In such a case,
manslaughter could logically be a viable alternative to Subsection (b)(2)
murder.
                                      11
                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                Respectfully submitted,
                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman
                                State Bar No. 15078900
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us



                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 2,258.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      12
                      CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on August 5,

2015, to Appellant’s attorney, Nathan Burkett, burkett.nathan@gmail.com.



                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      13
