NUMBER 13-14-00338-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHNNY FLORES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Garza
Appellant, Johnny Flores, was convicted of murder, a first-degree felony, and was
sentenced to life imprisonment. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw
through 2015 R.S.). On appeal, he contends that the trial court reversibly erred by
denying his request to instruct the jury on the lesser-included offense of manslaughter.
We affirm.
I. BACKGROUND
Flores was charged by indictment with the murder of his girlfriend, Terry Mechell
Ramos (“Mechell”). The indictment alleged that Flores, with the intent to cause serious
bodily injury, committed an act clearly dangerous to human life that caused Mechell’s
death by asphyxia. See id. § 19.02(b)(2).
At trial, an audio recording of a 911 call made on July 4, 2013, to Corpus Christi
police was entered into evidence and played for the jury. In the call, the caller reported:
“I just killed my girlfriend.” When asked if his girlfriend was “awake and breathing,” the
caller stated “No.” The dispatcher asked, “How did you do that?” and the caller
responded: “I suffocated her.” When asked whether he had any weapons, the caller
stated he had a knife and that he had used the knife to try to kill himself. He explained
that he had been drinking. He stated, “I caught her with some other guy. . . . I think she’s
a prostitute.” The caller identified himself as Johnny Flores and provided his date of birth.
Police arrived at Flores’s location and arrested him.
Flores was then interviewed at the police station; a video recording of the interview
was entered into evidence and played for the jury. During the interview, Flores stated
that he “lost it” and he “snapped.” He stated that he found out he has a sexually
transmitted disease, and that was what “pushed [him] over the edge.” He said: “She
started fighting, scratching me, I got mad and I hit her.” He clarified that he hit her twice,
slapped her more than twice, and choked her. He “snapped out of it” and stopped choking
her when she stopped fighting. After finding that she had a “light pulse,” he went to the
kitchen to get a knife and contemplated suicide, but decided against it. He informed police
that he had previously been treated for schizoaffective disorder but that he had not been
2
on medication for several months.
Ray Fernandez, M.D., performed an autopsy and testified as to his findings. He
stated that Mechell had a half-inch long, half-inch deep stab wound to the soft tissue on
the right side of her head. There was extensive bruising on her right cheek and eyelid as
well as on her jaw, and there was a fracture on the “front upper teeth area” with teeth
missing. Mechell’s nose had abrasions and was fractured. Fernandez found swelling on
Mechell’s brain as well as internal bleeding on the left side of her neck, consistent with
“someone putting their hands on her neck” with “force behind them.” Finally, Fernandez
testified that there were petechial hemorrhages, or “pinpoint size areas of bleeding,” on
both of Mechell’s eyes and the inner surface of her eyelids. When asked what these
hemorrhages indicate, Fernandez explained:
Those are areas where the blood vessels have burst and it’s[ ]because of
the pressure that’s going through the face area. It’s not something that’s
specific for any one cause, but it is a finding that’s commonly seen when
there’s been pressure at the nose and the mouth/neck area. It’s been on-
and-off-type pressure, the type you see from asphyxia where there is
blockage of oxygen going to the body.
He stated that petechial hemorrhages are not seen when asphyxia occurs because of
continuous pressure, such as by hanging; instead, they are found when there is “on-and-
off-type pressure.” He stated that “on-and-off-type pressure” would be consistent with a
struggle.
Fernandez testified that, based on his examination, he determined Mechell’s cause
of death to be “mechanical asphyxia” with a “contributing condition” of “a stab wound to
the right temple of the head.” He explained that, for a person to die from mechanical
asphyxia, pressure would have to be maintained for four or five minutes. On cross-
examination, Fernandez acknowledged that there was no damage to Mechell’s trachea,
3
nor was there bleeding or bruising on the outside of her neck, all of which would be
consistent with strangulation.
Troy Martinez, Psy.D., a forensic psychologist, testified in Flores’s defense that
when a person with a major mental illness such as schizoaffective disorder is not on their
medication, their mental state may “deteriorate in such a way that can certainly impact
their judgment, . . . their impulse control, their emotional stability . . . .” Martinez stated
that such a person can act recklessly, which he took to mean irrational or impulsive.
II. DISCUSSION
By a single issue, Flores contends that the trial court erred by denying his request
to include an instruction on manslaughter in the jury charge.1
A. Applicable Law and Standard of Review
We use a two-pronged test to determine whether a defendant is entitled to an
instruction on a lesser-included offense. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim.
App. 2011); Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007). The first step of the
analysis asks whether the lesser-included offense is included within the proof necessary
to establish the offense charged. Rice, 333 S.W.3d at 144. An offense is a lesser
included offense if:
(1) it is established by proof of the same or less than all the facts required
to establish the commission of the offense charged;
1 We note that Flores does not argue in his appellate brief that he suffered harm from the alleged
jury charge error. See Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992) (finding that the
trial court erred in refusing to give a requested instruction on a lesser-included offense and remanding to
the court of appeals for an Almanza harm analysis); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985) (op. on reh’g) (holding that, when jury-charge error has been preserved at trial, it will be
reversible only if the error resulted in “some harm” to the accused); see also Masterson v. State, 155 S.W.3d
167, 171 (Tex. Crim. App. 2005) (“[T]he harm from denying a lesser offense instruction stems from the
potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable
doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.”).
4
(2) it differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or public
interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West, Westlaw through 2015 R.S.). The
determination of what is a lesser-included offense is a question of law. Wortham v. State,
412 S.W.3d 552, 555 (Tex. Crim. App. 2013). We do not consider the evidence that was
presented at trial; instead, we consider only the statutory elements of the offense as they
were modified by the particular allegations of the indictment, and we then compare them
with the elements of the requested lesser offense. Id. “Thus, an offense is a lesser-
included offense if the indictment alleges all the elements of the lesser-included offense,
or if the indictment alleges elements plus facts from which all the elements of the lesser-
included offense may be deduced.” Id.
The second step is to determine whether “there is some evidence in the record
which would permit a jury to rationally find that, if the defendant is guilty, he is guilty only
of the lesser-included offense.” Id.; Hall, 225 S.W.3d at 536. The evidence must establish
the lesser-included offense as “a valid, rational alternative to the charged offense.”
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012); Rice, 333 S.W.3d at 144;
Hall, 225 S.W.3d at 536. Anything more than a scintilla of evidence will be sufficient to
entitle a defendant to a charge on the lesser offense. Hall, 225 S.W.3d at 536. However,
“it is not enough that the jury may disbelieve crucial evidence pertaining to the greater
offense, but rather, there must be some evidence directly germane to the lesser-included
offense for the finder of fact to consider before an instruction on a lesser-included offense
5
is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). “Meeting
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 the greater
offense.” Cavazos, 382 S.W.3d at 385; Wortham, 412 S.W.3d at 558.
B. Analysis
We start by considering the second prong of the analysis because it is dispositive.2
As to this prong, Flores must show that there was more than a scintilla of evidence in the
record establishing that, if he is guilty, he is guilty only of manslaughter. See Wortham,
412 S.W.3d at 555. A person commits manslaughter by “recklessly caus[ing] the death
of an individual.” TEX. PENAL CODE ANN. § 19.04(a) (West, Westlaw through 2015 R.S.).
A person acts recklessly with respect to the result of his conduct “when he is aware of but
consciously disregards a substantial and unjustifiable risk” that the result will occur. Id.
§ 6.03(c) (West, Westlaw through 2015 R.S.). “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.” Id. Accordingly, for Flores to be entitled to a manslaughter instruction,
“[t]here must be some affirmative evidence that [he] did not intend to cause serious bodily
2 With regard to the first prong, Flores argues that the case is controlled by Cavazos v. State, in
which the Texas Court of Criminal Appeals found that manslaughter was a lesser-included offense of
section 19.02(b)(2) murder as charged in that case. See 382 S.W.3d 377, 384 (Tex. Crim. App. 2012)
(concluding that “causing death while consciously disregarding a risk that death will occur differs from
intending to cause serious bodily injury with a resulting death only in the respect that a less culpable mental
state establishes its commission”) (citing TEX. CODE CRIM. PROC. ANN. art. 37.09(3) (West, Westlaw through
2015 R.S.)). The State contends that Cavazos is distinguishable because the indictment in that case
alleged that the defendant had used a firearm, whereas here the indictment alleged that Mechell had died
by asphyxia. See id. at 384 (observing that “the indictment specified that Appellant shot the victim with a
deadly weapon, so it can be inferred that he had the intent to cause the victim’s death”). We need not
decide the issue because, regardless of whether Cavazos controls, we will conclude herein that the
evidence did not support a manslaughter instruction. See TEX. R. APP. P. 47.1.
6
injury” and “some affirmative evidence from which a rational juror could infer that [he] 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; see TEX. PENAL CODE
ANN. §§ 6.03(c) (defining reckless), 19.02(b)(2) (stating that a person commits murder if
he “intends to cause serious bodily injury and commits an act clearly dangerous to human
life that causes the death of an individual”).
Flores points to Saunders v. State, a 1992 case in which the court of criminal
appeals held:
There are two ways in which the evidence may indicate that a defendant is
guilty only of the lesser offense. First, there may be evidence which refutes
or negates other evidence establishing the greater offense. For instance, if
a defendant is charged with aggravated robbery and evidence is presented
which indicates the defendant may not have used a deadly weapon, then a
charge on the lesser offense of robbery would be required. If, however, the
defendant simply denies commission of the offense, or there is no evidence
specifically raising an issue regarding use of the weapon, then the charge
on the lesser offense would not be required.
Second, a defendant may be shown to be guilty only of the lesser offense if
the evidence presented is subject to different interpretations. In Thomas [v.
State, 543 S.W.2d 645, 651 (Tex. Crim. App. 1976)], this Court held that if
the evidence raises two inferences regarding the defendant’s awareness of
the risk, then the jury should be instructed on both inferences . . . .
Saunders v. State, 840 S.W.2d 390, 391–92 (Tex. Crim. App. 1992) (some citations
omitted) (considering whether trial court erred in denying instruction on criminally
negligent homicide); see Cavazos, 382 S.W.3d at 385. Flores argues that the evidence
regarding his mental state was “subject to different interpretations” as in Saunders and,
therefore, the jury should have been instructed on manslaughter. Specifically, he
contends that the jury could have believed that he acted recklessly in light of Fernandez’s
testimony that petechial hemorrhages on Mechell’s eyes were caused by “on-and-off-
7
type” pressure, and Martinez’s testimony that a person with schizoaffective disorder could
act recklessly if he was off his medication.
We do not believe that this testimony established manslaughter as a valid, rational
alternative to section 19.02(b)(2) murder. Fernandez did testify that Mechell’s injuries
were caused by “on-and-off-type” pressure as opposed to continuous pressure, but he
stated that these injuries were consistent with a struggle, and he also indicated that it
would take four or five minutes of pressure to cause a person’s death by asphyxia.
Martinez testified that a person with schizoaffective disorder may act recklessly when off
medication, but he defined recklessly in a manner inconsistent with the definition
contained in the penal code; and in any event, he did not testify that Flores acted
recklessly on this particular occasion. The jury could not reasonably interpret this
evidence as indicating that Flores lacked the intent to commit serious bodily injury, see
Cavazos, 382 S.W.3d at 385, or as rebutting or negating any element of section
19.02(b)(2) murder. This is especially true in light of the undisputed evidence that Flores
hit Mechell multiple times and choked her until she stopped fighting; as well as undisputed
evidence of Mechell’s extensive injuries, including a broken nose, broken and missing
teeth and a shallow stab wound. See Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.
App. 1995) (noting that intent to murder may be inferred from the extent of the victim’s
injuries).
For the foregoing reasons, we find that the trial court did not err in denying Flores’s
request for a manslaughter instruction. Flores’s issue is overruled.
8
III. CONCLUSION
The trial court’s judgment is affirmed.
________________________
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
29th day of December, 2015.
9