Opinion Issued October 22, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00584-CR
__________
RUDY RODRIGUEZ JR., Appellant
V.
THE STATE OF TEXAS, Appellee
Harris County, Texas
Trial Court Cause No. 1069837
MEMORANDUM OPINION
Appellant, Rudy Rodriguez Jr., appeals from a judgment that sentenced him to life in prison for the murder of Jose Ligas. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). Appellant pleaded not guilty. The jury found appellant guilty and determined his sentence. In his sole issue, appellant contends the trial court erred by denying his request for a jury instruction on the lesser included offense of manslaughter. Because no evidence raised the issue, we conclude the trial court properly refused to instruct the jury on the charge of manslaughter. We affirm. Background
Kevin Pinell was a 21 year old man who lived in a house on Shady Brook Drive with his father. Pinell was in a relationship with Amber Deollos, who dated Ligas before she began seeing Pinell. Deollos's sister, Alexis, lived near Pinell and was dating appellant.
Early one morning in May 2006, appellant and Pinell went to Alexis's house, where they found Deollos, Alexis, and Ligas. This surprise encounter caused an argument between appellant and Ligas. When Alexis broke up the argument, appellant and Pinell returned to Pinell's house, where they remained together throughout that night, the following day, and the following evening.
The evening after the argument, at around sunset, appellant, Pinell, and two friends smoked marijuana in Pinell's living room. While in the living room, Pinell saw his father's handgun lying on the sofa and picked it up, placing it near where he was seated.
Later that evening, Joseph Pryor, Pinell's friend, arrived at the garage of the house. For reasons not shown in the record, Pryor tried to stab Pinell, but Pinell escaped into the house, where he retrieved the handgun and placed it inside his waistband. Pinell believed appellant probably saw Pinell with the gun because appellant was nearby when Pinell took possession of the gun.
Pinell and appellant walked outside to escort Pryor away. While they were outside, a truck pulled up and parked in front of the driveway of Pinell's house. Ligas was the driver of the truck, and his passenger was Andre Colunga. While Ligas remained in the driver's seat of the truck, Pinell heard Ligas "taunting" appellant by chanting "Rudy, Rudy."
Appellant twice asked Pinell for the handgun, but Pinell did not give appellant the gun. Appellant reached into Pinell's waistband, and grabbed the gun. Appellant told Pinell, "Man, I got this." According to Pinell, appellant started running towards the truck, and Pinell tried to stop appellant by grabbing appellant's shirt, but appellant managed to get closer to the truck. Pinell described appellant as "a couple of feet away from the passenger's side." At that point, according to Pinell, Pinell pushed appellant's hand down because he "didn't want [appellant] to point the gun."
Appellant held the gun to his side as he walked quickly from the passenger side of the truck to the front of the truck telling the occupants, "Get out of the truck." As appellant walked in front of the truck, Pinell saw Ligas "spinning the tires" by "hitting the gas real hard and then pressing the brake . . . [and] hitting the gas real hard, pressing the brake." As Ligas moved the truck in this manner, appellant pointed the gun at Ligas. When appellant reached the driver's side of the truck, he started shooting while walking towards the back of the truck. Pinell heard three gunshots. The truck then started skidding before it crashed into a house. Appellant ran into the neighborhood on foot.
Colunga explained the events similarly to Pinell's description, but with a few minor differences. Colunga said that when appellant walked towards the passenger side of the truck, appellant had his hands in his pockets, and he pulled the gun out when he reached the passenger's window. Appellant said, "What's up?," as he stuck the gun in Colunga's face. When appellant did this, Ligas told appellant to "be a man" and fight him instead of "pulling a gun." Ligas also told appellant "there's no need for a gun." According to Colunga, after appellant pointed the gun, Ligas saw Pinell run up to appellant and push appellant's hand down, asking him, "What the hell . . . are you doing?" Appellant, however, raised the gun again, continuing to point the gun at Colunga and Ligas for approximately 30 seconds as appellant stood on the passenger side of the truck. Colunga stated appellant walked around the front of the truck, keeping the gun pointed at Ligas the entire time. After appellant was no longer in front of the truck and had reached the driver's front side, Ligas ducked and accelerated the truck to escape. Ligas was not aiming the truck at appellant, according to Colunga. Colunga said appellant did not have to jump to get out of the way and did not fall. Colunga testified that Ligas never lurched the truck at appellant while appellant was in front of the truck. As soon as Ligas hit the gas, Colunga heard a single gunshot and saw a flash from the gun. Ligas slumped over before the truck crashed into a house.
Several days later, authorities recovered a gun from a nearby ditch. Tests matched the gun to the two shell casings at the scene of the shooting. Autopsy results confirmed that the cause of Ligas's death was a single gunshot wound to the head.
Appellant did not testify in the guilt-innocence phase of trial. Appellant requested a jury instruction on the lesser offense of manslaughter, but the trial court refused the instruction. The instructions to the jury, however, gave the jury the option of acquitting appellant if they determined he used deadly force to defend himself.
After he was found guilty by the jury, appellant testified in the punishment phase of trial. Appellant stated that the acceleration and sharp left turn of the truck hit him in the knee, caused him to fall, and "he retrieved the weapon and fired at the truck in a completely scared state."
Jury Instruction on Lesser Offense of Manslaughter
Appellant's sole issue challenges the trial court's refusal of his requested jury instruction on the lesser-included offense of manslaughter. In his brief, appellant's entire argument is, as follows:
[T]here is evidence that appellant approached the truck with the gun drawn and pointed. However, there is also evidence that Pinell was able to approach appellant and lower his arm. There is evidence that [appellant] crossed in front of the pick up with the weapon at his side. There is also evidence that Ligas ducked inside the truck's cabin, accelerated, and turned left toward appellant as he was approaching the driver's door. There is evidence that the velocity of the truck was causing appellant's position to approach the rear section of the truck at the time the shots were fire[d]. There is evidence that at least one of the shots struck behind the driver's side window, penetrating the rear section of the driver's side door. The State responds that there is no evidence in the record establishing that, if appellant is guilty, he is guilty only of manslaughter.
A. Applicable Law
We review the trial court's decision regarding whether to include a lesser-included offense in the jury charge for abuse of discretion. See Jackson v. State, 160 S.W.3d 568, 574-75 (Tex. Crim. App. 2005). In order to demonstrate the trial court erred by refusing to instruct the jury on a lesser offense, the evidence must show that (1) the lesser offense is a lesser-included offense of the charged offense, and (2) the record contains some evidence that permits a rational jury to find that the defendant is guilty only of the lesser-included offense. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).
B. First Prong is Established
Manslaughter is a lesser-included offense of the offense of murder because "it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission." See Tex. Code Crim. Proc. Ann. art. 37.09(3) (Vernon 2006); Moore v. State, 969 S.W.2d 4, 9 (Tex. Crim. App. 1998). Murder requires proof that the actor acted intentionally or knowingly. Tex. Penal Code Ann. § 19.02. By contrast, manslaughter requires proof that the defendant acted recklessly--that is, that he consciously disregarded a substantial risk of which he was aware. See id. §§ 6.03, 19.04(a) (Vernon 2003). Because recklessness is a less-culpable mental state than intent or knowledge, manslaughter is a lesser-included offense of murder. Moore, 969 S.W.2d at 9. The first prong, therefore, is met.
C. No Evidence of Second Prong
Under the second prong, we must examine the record to determine if there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. See Hall, 225 S.W.3d at 535. Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994). In the instant case, we must determine whether any evidence raises a fact issue that appellant shot recklessly rather than intentionally or knowingly. Patterson v. State, 950 S.W.2d 196, 200 (Tex. App.--Dallas 1997, pet. ref'd.).
At the outset, we note that appellant testified in the punishment phase of trial that the truck's acceleration and sharp left turn caused the truck to hit him in the knee, and caused him to fall, so "he retrieved the weapon and fired at the truck in a completely scared state." Appellant, however, did not testify in the guilt-innocence phase of trial. Although this evidence may have been enough to require the court to include a manslaughter instruction in the jury charge had it been introduced in the guilt-innocence phase of trial, the evidence was not before the court at the time the court made its decision to refuse the jury instruction. Appellant acknowledges in his appellate brief that, in reviewing the guilt-innocence jury instructions, it would be inappropriate for the court to consider evidence that was raised for the first time in the punishment phase of trial. We cannot conclude the trial court made an erroneous decision based on evidence not before it when it made its decision. See Lopez v. State, 574 S.W.2d 563, 565 (Tex. Crim. App. 1979) (holding charge on defensive theory not required where appellant did not testify and no other evidence raised the defensive theory at trial).
Appellant points to evidence that Pinell lowered appellant's arm, but that occurred when appellant was walking to the passenger side of the truck; this did not occur when appellant fired the gun while standing near the driver's side of the truck. Similarly, appellant points to evidence that he crossed in front of the truck with the weapon at his side, but the shooting did not occur while appellant was crossing in front of the truck. Both Pinell and Colunga testified that appellant fired the gun while appellant was on the driver's side of the truck. Therefore, the lowering of the gun at a different point in time than when the shooting occurred is no evidence that appellant consciously disregarded a substantial risk of which he was aware when he fired the gun. See Tex. Penal Code Ann. §§ 6.03, 19.04(a).
Appellant contends the evidence shows Ligas ducked inside the truck's cabin, accelerated, and turned left toward appellant as appellant was approaching the driver's door. This is some evidence that appellant shot Ligas to defend himself from imminent bodily injury by Ligas, and the trial court did give a deadly force instruction to the jury that would allow the jury to acquit appellant if it believed appellant shot Ligas to defend himself from Ligas. Although the evidence described by appellant would support a jury instruction on the use of deadly force to defend one's self, the evidence does not support a recklessness instruction. See Tex. Penal Code Ann. §§ 6.03, 19.04(a); see Kennedy v. State, 193 S.W.3d 645, 652 (Tex. App.--Fort Worth 2006, pet. ref'd) (holding instruction on manslaughter not warranted because no rational juror could find defendant acted recklessly based on evidence describing self-defense); Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd) (noting one cannot accidentally or recklessly act in self-defense).
No evidence was introduced at the guilt-innocence phase of trial to show that at the time appellant fired the gun Ligas was aiming the truck at appellant, that appellant had to jump out of the way of the truck, or that appellant fell. No evidence shows that appellant consciously disregarded a substantial risk of which he was aware when he fired the gun. The evidence in the record supports only the determination that appellant fired the gun intentionally or knowingly either to harm Ligas because of the conflict between him and Ligas or to defend himself from Ligas. See Tex. Penal Code Ann. §§ 6.03, 19.04(a).
No evidence in the record would permit a jury to rationally conclude that appellant is guilty only of consciously disregarding a known substantial and unjustifiable risk that serious bodily injury or death would occur. See Hall, 225 S.W.3d at 535. We hold the trial court properly refused to instruct the jury on the law concerning manslaughter.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Keyes, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).