Opinion issued July 14, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00383-CR
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ADRIAN GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1405348
OPINION
Appellant was charged by indictment with capital murder.1 Appellant pleaded
not guilty. The jury found him guilty. Because the State did not seek the death
1
See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011), § 19.03(a)(2) (Vernon
Supp. 2015).
penalty, a sentence of life without parole was automatically assessed. In one issue
on appeal, Appellant argues the trial court erred by denying his request for a jury
instruction on the lesser-included offense of felony-murder.2
We reverse and remand for a new trial.
Background
Sonia Vasquez and her husband, the complainant, owned and operated a taco
truck. On October 12, 2013, the two were operating the truck at a gas station in
Houston, Texas. At one point during the day, the complainant was wiping down
tables outside of the truck. Appellant approached Vasquez and ordered two tacos.
As the complainant went inside the truck, Appellant followed. Vasquez
testified at trial that, as the complainant was closing the door to the taco truck,
Appellant pulled it open. Appellant came inside, pointing a gun at the complainant.
Appellant said, “Give me the money.” Vazquez testified that, after Appellant came
into the truck, everything happened very rapidly, within about a ten-second time
frame. She testified that the complainant “was a person who would not give up.”
She recalled telling police after the shooting that the complainant “was reluctant[,]
. . . was kind of angry and stubborn, [and] was the kind of person that wouldn’t just
give money.”
2
See id. § 19.02(b)(3).
2
She testified that the complainant threw the tip jar at Appellant. Appellant
fired a shot after this. Vasquez testified that the shot grazed the complainant’s arm.
The complainant then grabbed a folded chair and began to swing it to hit Appellant.
The complainant lost his balance, though he did not fall. She testified that Appellant
pushed the complainant down with one hand, pointed the gun at the complainant’s
head with the other hand, and fired, killing the complainant. Appellant then fled.
After he was arrested, Appellant gave a statement to the police. In the video
statement, which was admitted into evidence at trial, Appellant told the officers that
he went to the taco truck “to get some quick money.” Appellant entered the truck
and told everyone not to move. According to Appellant, the complainant looked at
him and smiled. The complainant then grabbed the glass tip jar and threw it at
Appellant, “trying to hit [him] in [his] veins” on his arm. The jar broke, and
Appellant sustained some cuts. The complainant came closer, and Appellant fired a
warning shot out the window. The complainant continued to advance. Appellant
said he fired three shots during the altercation: two to the chest and one to the head.
The evidence showed, however, that the complainant sustained one grazing shot to
the arm and one shot to the head. The complainant did not sustain any shots to the
chest.
When summarizing what happened, Appellant explained, “I went, I tried to
rob the place, and it didn’t go right.” Later, one officer told Appellant that Vasquez
3
had been afraid during the incident that Appellant “was going to do something to
her, too.” Appellant replied, “I’m not like that.” The officer then asked, “So what
happened was a mistake?” Appellant replied, “Yeah.”
During the charge conference, Appellant requested a jury instruction on the
offense of felony-murder, arguing that there was evidence to support a jury’s finding
that he had committed felony-murder but not capital murder. The trial court denied
the request.
Lesser-Included Offense
In his sole issue, Appellant argues the trial court erred by denying his request
for a jury instruction on the lesser-included offense of felony murder.
A. Standard of Review & Applicable Law
A defendant is entitled to an instruction on an offense if (1) the requested
offense is a lesser-included offense of the charged offense and (2) there is some
evidence in the record that would permit a jury to rationally find that, if the defendant
is guilty, he is guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185,
188 (Tex. Crim. App. 2006).
“The first step in the lesser-included-offense analysis, determining whether an
offense is a lesser-included offense of the alleged offense, is a question of law.” Hall
v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Questions of law are
reviewed de novo. See Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App.
4
2010) (“Statutory construction is a question of law; therefore our review is de
novo.”). Resolution of this step does not depend on the evidence produced at the
trial. Hall, 225 S.W.3d at 535. Instead, the matter is resolved by comparing the
elements of the offense charged in the indictment with the elements of the requested
lesser-included offense. Id. at 535–36.
If the first prong is satisfied, we then consider whether the evidence in the
record supports giving the lesser-included offense instruction. Ex parte Watson, 306
S.W.3d 259, 263 (Tex. Crim. App. 2009). A defendant is entitled to a requested
instruction on a lesser-included offense when some evidence in the record would
permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the
lesser-included offense. Hall, 225 S.W.3d at 536 (citing Bignall v. State, 887
S.W.2d 21, 23 (Tex. Crim. App. 1994)).
The evidence can be raised from any source. See Rousseau v. State, 855
S.W.2d 666, 672 (Tex. Crim. App. 1993) (citing Bell v. State, 693 S.W.2d 434, 442
(Tex. Crim. App. 1985)). “Anything more than a scintilla of evidence entitles the
defendant to the lesser charge.” Wortham v. State, 412 S.W.3d 552, 558 (Tex. Crim.
App. 2013). If there is more than a scintilla of evidence supporting the lesser-
included charge, the trial court must include the instruction regardless of whether
the supporting evidence is “strong, weak, unimpeached, or contradicted.” Bell, 693
S.W.2d at 442 (internal quotations omitted). “The credibility of the evidence, and
5
whether it conflicts with other evidence, must not be considered in deciding whether
the charge on the lesser-included offense should be given.” Dobbins v. State, 228
S.W.3d 761, 768 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d) (citing
Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (“Saunders II”)).
Likewise, “[w]here the evidence given at trial is subject to two reasonable
inferences, the jury should be instructed on both inferences.” Ross v. State, 861
S.W.2d 870, 875 (Tex. Crim. App. 1992). It is not enough, however, that the jury
could disbelieve certain evidence necessary for the greater offense. Sweed v. State,
351 S.W.3d 63, 68 (Tex. Crim. App. 2011) (citing Skinner v. State, 956 S.W.2d 532,
543 (Tex. Crim. App. 1997)).
B. Error
Appellant was charged with capital murder. See TEX. PENAL CODE ANN.
§ 19.03(a)(2) (Vernon Supp. 2015). Specifically, the indictment alleged that “on or
about October 12, 2013, [Appellant] did then and there unlawfully, while in the
course of committing and attempting to commit the robbery of Lorenzo Vasquez,
intentionally cause the death of Lorenzo Vasquez by shooting Lorenzo Vasquez with
a deadly weapon . . . .” Appellant requested that the charge include an instruction
on the offense of felony-murder—that is, committing an act clearly dangerous to
human life that causes the death of an individual in the course of committing or
attempting to commit a felony. See id. § 19.02(b)(3) (Vernon 2011).
6
“This Court has long held that murder is a lesser-included offense of capital
murder.” Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009) (citing
Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002); Thomas v. State, 701
S.W.2d 653, 656 (Tex. Crim. App. 1985)); accord Fuentes v. State, 991 S.W.2d 267,
272 (Tex. Crim. App. 1999) (“The elements of felony murder [under section
19.02(b)(3)] are included within the proof necessary for capital murder committed
in the course of robbery [that is, section 19.03(a)(2)].”). Accordingly, the first step
for obtaining a lesser-included instruction has been satisfied. See Guzman, 188
S.W.3d at 188.
We turn, then, to whether there was more than a scintilla of affirmative
evidence that Appellant committed murder but not capital murder. See id.
(identifying second step of analysis as determining whether there is some evidence
in record that would permit jury to rationally find that, if defendant is guilty, he is
guilty only of lesser offense); Wortham, 412 S.W.3d at 558 (holding anything more
than scintilla of evidence entitles defendant to charge instruction). “The
distinguishing element between felony murder and capital murder is the intent to
kill.” Fuentes, 991 S.W.2d at 272. The basis of capital murder for which Appellant
was charged permitted the jury to find him guilty only if it found Appellant
intentionally committed murder. See PENAL § 19.03(a)(2); Alvarado v. State, 912
S.W.3d 199, 216 (Tex. Crim. App. 1995) (holding trial court erred by instructing
7
jury that it could find defendant guilty under section 19.03(a)(2) by finding
Appellant knowingly caused complainant’s death). In contrast, felony-murder has
no mens rea for the element of “commit[ting] or attempt[ing] to commit an act
clearly dangerous to human life that causes the death of an individual.” PENAL §
19.02(b)(3); see Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim. App. 2007)
(holding “Section 19.02(b)(3) dispenses with a culpable mental state”).
Accordingly, proof of any mental state other than intentional would have allowed a
jury to find Appellant guilty of felony-murder but not capital murder. See Alvarado,
912 S.W.3d at 216 (holding jury cannot find defendant guilty of section 19.03(a)(2)
with “knowingly” mens rea); Lomax, 233 S.W.3d at 305 (holding no mens rea for
section 19.02(b)(3)).
Murder is a result-of-the-conduct offense. Schroeder v. State, 123 S.W.3d
398, 400 (Tex. Crim. App. 2003). “A person acts intentionally . . . with respect . . .
to a result of his conduct when it is his conscious objective or desire to . . . cause the
result.” TEX. PENAL CODE ANN. § 6.03(a) (Vernon 2011). “A person acts knowingly
. . . with respect to a result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.” Id. § 6.03(b).
In his video statement to the police, which was admitted into evidence,
Appellant told the officers that he went to the taco truck “to get some quick money.”
Appellant entered the truck and told everyone not to move. According to Appellant,
8
the complainant looked at him and smiled. The complainant then grabbed the glass
tip jar and threw it at Appellant, “trying to hit [him] in [his] veins” on his arm. The
jar broke, and Appellant sustained some cuts. The complainant came closer, and
Appellant fired a warning shot out the window. The complainant continued to
advance.
Appellant said he then fired three shots during the altercation: two to the chest
and one to the head. The evidence showed, however, that the complainant sustained
one grazing shot to the arm and one shot to the head. The complainant did not sustain
any shots to the chest.
When summarizing what happened, Appellant explained, “I went, I tried to
rob the place, and it didn’t go right.” Later, one officer told Appellant that Vasquez
had been afraid during the incident that Appellant “was going to do something to
her, too.” Appellant replied, “I’m not like that.” The officer then asked, “So what
happened was a mistake?” Appellant replied, “Yeah.”
Likewise, Vazquez testified that, after Appellant came in to the truck,
everything happened very rapidly, within about a ten-second time frame. She
testified that the complainant “was a person who would not give up.” She recalled
telling police after the shooting that the complainant “was reluctant[,] . . . was kind
of angry and stubborn, [and] was the kind of person that wouldn’t just give money.”
9
Vasquez’s testimony of the series of events matched much of what Appellant
told police. She testified that the complainant threw the tip jar at Appellant. She
agreed that Appellant fired a shot after this. Vasquez testified that this was the shot
that grazed the complainant’s arm. The complainant then grabbed a folded chair and
began to swing it to hit Appellant. The complainant lost his balance, though he did
not fall. It was during this process that Appellant fired a second shot at the
complainant, hitting him in the head.
The State points out that Vasquez also testified that, during the altercation,
Appellant pushed the complainant down with one hand, pointed the gun at the
complainant’s head with the other hand, and fired. This does contradict Appellant’s
assertion that the killing of the complainant was a mistake. But the lesser-included
instruction must be included regardless of whether the supporting evidence is
“strong, weak, unimpeached, or contradicted.” Bell, 693 S.W.2d at 442 (emphasis
added; internal quotations omitted). To treat this portion of Vasquez’s testimony as
controlling, we would have to hold that the jury had to credit this testimony and that
the testimony must control over Appellant’s contrary statements—two things we
cannot do. See Saunders II, 840 S.W.2d at 391 (holding credibility of evidence and
whether it conflicts with other evidence must not be considered in lesser-included
review); Dobbins, 228 S.W.3d at 768 (same); see also Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding jury is entitled to credit some
10
portions of witnesses’ testimony while not believing other portions). Likewise,
Appellant shooting the complainant at close range is not conclusive proof of intent
because “intent to kill cannot be presumed as a matter of law.” Brown v. State, 122
S.W.3d 794, 800 (Tex. Crim. App. 2003).
Evidence of intent is rarely subject to direct evidence. See Hernandez v. State,
819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Instead, it is usually “inferred from
acts, words and conduct of accused.” Id. “Where the evidence given at trial is
subject to two reasonable inferences, the jury should be instructed on both
inferences.” Ross, 861 S.W.2d at 875.
There is sufficient evidence in the record to support the jury’s inference that
Appellant had a “conscious objective or desire to” cause the complainant’s death.
See PENAL § 6.03(a). We hold, however, there was also more than a scintilla of
evidence in the record that would have allowed the jury to infer, instead, that
Appellant was aware that shooting the complainant “was reasonably certain to
cause” the complainant’s death without having a conscious objective or desire to
cause it. See id. § 6.03(a)–(b); see also Alvarado, 912 S.W.3d at 216 (holding jury
cannot find defendant guilty of section 19.03(a)(2) with “knowingly” mens rea);
Wortham, 412 S.W.3d at 558 (“Anything more than a scintilla of evidence entitles
the defendant to the lesser charge.”).
11
This same evidence could have supported a determination that Appellant
committed felony-murder. See Lomax, 233 S.W.3d at 305 (holding no mens rea for
section 19.02(b)(3)). Accordingly, we hold both steps for obtaining a lesser-
included instruction were satisfied. See Guzman, 188 S.W.3d at 188.
C. Harm
Next, we must address whether Appellant has suffered any harm. TEX. CODE
CRIM. PROC. ANN. art. 36.19 (Vernon 2006). When, as here, the appellant has
properly preserved the claimed error by a timely objection to the charge, the
conviction will require reversal “as long as the error is not harmless.” Almanza v.
State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984). The Court of Criminal Appeals
has held this means that any harm, regardless of degree, is sufficient to require
reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); see also
Jimenez v. State, 32 S.W.3d 233, 237 (Tex. Crim. App. 2000) (reversal required if
error “was calculated to injure the rights of [the] defendant”—that is, if defendant
“suffered ‘some harm’”).
When the denial of a request for a lesser-included instruction results in the
jury only being allowed to decide between finding the defendant guilty of the
charged offense and acquitting the defendant, harm is established. Saunders v. State,
913 S.W.2d 564, 571 (Tex. Crim. App. 1995) (“Saunders IV”). The harm occurs
12
“because the jury was not permitted to fulfill its role as factfinder to resolve the
factual dispute whether the defendant committed the great or lesser offense.” Id.
Those are the facts of this case. The jury’s only choice was between finding
Appellant guilty of capital murder—with the resulting sentence of life without
parole—and acquitting Appellant. Because Appellant was entitled to a lesser-
included instruction on felony-murder, the jury was not permitted to fulfill its role
to resolve the factual dispute of which offense Appellant committed. See id.
Accordingly, harm is established. See id.
We sustain Appellant’s sole issue.
Conclusion
We reverse the judgment of the trial court and remand for a new trial.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
13
Adrian Gomez v. State
Court: Court of Appeals of Texas
Date filed: 2016-07-14
Citations: 499 S.W.3d 558, 2016 Tex. App. LEXIS 7524, 2016 WL 3901193
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