Affirmed and Opinion filed March 30, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00523-CR
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ROBERT DANIEL HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 47,510
O P I N I O N
Appellant entered a plea of not guilty to the offense of murder. He was convicted, and the jury assessed punishment at sixty years= confinement in the Texas Department of Criminal JusticeCInstitutional Division and a fine of $10,000. In two issues, appellant contends that the trial court erred in failing to instruct the jury on (1) the law of self-defense and defense of a third person, and (2) the lesser-included offense of manslaughter. We affirm.
Background
In the early morning hours of June 12, 2004, appellant and Leonard Knight went to the Ocean Blue bar. After they had been in the bar approximately one hour, Christopher Cordova, the complainant, began making hand gestures toward appellant and Knight. Appellant described the gestures as gang signs. When the bar closed, appellant and Knight left the bar and walked toward appellant=s apartment. The complainant and his uncle followed in the uncle=s truck. When the truck stopped for a traffic light, the complainant got out of the truck and walked toward appellant and Knight. The complainant followed appellant and Knight to appellant=s apartment door, which was locked. Appellant knocked on the door until his sister unlocked it. When his sister unlocked the door, appellant went into the apartment, retrieved his gun, came out of the apartment, and fired at the complainant four to five times. The complainant started to run away after the first shot, but died from a gunshot wound to the chest.
Self-Defense
In his first issue, appellant contends that the trial court erred in overruling his request for a jury charge instruction on self-defense and defense of a third person. Appellant contends he shot the complainant because he was afraid for his life and for the lives of his family.
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force. Tex. Pen. Code Ann. ' 9.31(a). Deadly force, however, is justified only when a reasonable person in the actor=s situation would not have retreated and when it is necessary to protect the actor or another from deadly force. Id. ' 9.32(a)(2); see also Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986). Before an instruction on self-defense or defense of others is warranted, the defendant has the burden of coming forward with evidence that sufficiently raises the issue. Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App. 1994). If he meets that burden, the defendant is entitled to the instruction regardless of whether the 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 evidence in this case does not sufficiently raise the issue of self-defense or defense of a third person. The evidence shows that the complainant Athrew gang signs@ in the bar and followed appellant and Knight to appellant=s apartment. Appellant gave a statement to police in which he stated he did not see the complainant with a weapon and that the complainant had taken off his shirt. Appellant stated, however, that he was afraid the complainant had a weapon because as the complainant took off his shirt, he appeared to be Agrabbing for something.@ Appellant gave no explanation for why he did not retreat to his apartment and stay in the apartment after his sister opened the door. Assuming appellant reasonably believed that the unarmed complainant was reaching for a weapon, a reasonable person in appellant=s situation would have retreated into the apartment. The evidence fails to raise the issue of self-defense or defense of a third person by deadly force. See Tex. Penal Code Ann. ' 9.32(2). The trial court correctly overruled appellant=s request for a charge on self-defense and defense of a third person. Appellant=s first issue is overruled.
Lesser-included Offense
In his second issue, appellant contends that the trial court erred in failing to include an instruction in the jury charge on the lesser-included offense of manslaughter. A criminal defendant is entitled to an instruction on a lesser-included offense if (1) the offense in question constitutes a lesser‑included offense, and (2) there is some evidence that the defendant, if guilty of an offense, was guilty only of the lesser‑included offense. Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996). Manslaughter is a lesser-included offense of murder. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). Therefore, the first prong of the test is established.
Regarding the second prong, before the trial court is required to give a charge on a lesser‑included offense, the evidence must establish the offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser‑included offense. Feldman v. State, 71 S.W.3d 738, 750B51 (Tex. Crim. App. 2002). A charge on manslaughter is appropriate when there is some evidence that the accused acted recklessly in causing the death of another. Adanandus v. State, 866 S.W.2d 210, 232 (Tex. Crim. App. 1993). A person acts recklessly when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Pen. Code Ann. ' 6.03(c).
Appellant contends that he was entitled to an instruction on manslaughter because there is evidence that he was not the aggressor and he did not intend to kill the complainant. Appellant contends he acted in fear, not with an intent to kill. To raise the issue of manslaughter, there must be evidence of a lack of intent to kill and evidence that the accused acted recklessly while ignoring a known risk. Munoz v. State, 932 S.W.2d 242, 245 (Tex. App.CTexarkana 1996, no pet.). An accused=s denial that he intended to kill the victim does not, of itself, raise the issue of manslaughter. Id. Conduct is not rendered involuntary simply because the accused did not intend the result of his conduct. Burnett v. State, 865 S.W.2d 223, 230 (Tex. App.CSan Antonio 1993, pet. ref=d). The evidence clearly established that appellant intended to shoot the complainant with the gun. The evidence as a whole does not support a rational inference that appellant was consciously disregarding the risk of death that his conduct created. From this record, we find that the evidence does not support appellant=s guilt for only the lesser-included offense of manslaughter. Therefore, the trial court did not err in refusing the requested instruction. Appellant=s second issue is overruled.
The judgment of the trial court is affirmed.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed March 30, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).