Velez, Jose

S63 -IS NO.

RECEIVED IN
COURT OF CRIMINAL APPEALS

OCT 02 2015
ORIGINAL IN THE

COURT OF^CRIMINAL APPEALS AMAC0St8sGS©?
OF TEXAS

JOSE VELEZ

V.

STATE OF TEXAS

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TTCCl
COURT OF CRIMINAL APPEALS
From The 187th District Court U j I V f„ Lit (J
Trial Cause No. 2013-CR-0307C
Bexar County/ Texas
Abel Acosta, Clerk

On Petition For Discretionary Review From
The First Court Of Appeals Of Texas
at Houston/ Texas
Appellate Cause No. 01-14-00544-CR

JOSE VELEZ
TDCJ-CID#1930040
COFFIELD UNIT
2661 FM 2054
TENNESSEE COLONY,TX 75884

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS T.R.A.P. 68.4(a)

Page
INDEX OF AUTHORITY b
STATEMENT OF ORAL ARGUMENT i
STATEMENT OF THE CASE. . i
STATEMENT OF PROCEDURAL HISTORY i
GROUNDS FOR REVIEW

ONE: WHETHER THE FIRST COURT OF APPEALS ERRED IN
UPHOLDING THE TRIAL COURT'S DENIAL OF PETITIONER'S
REQUEST FOR A LESSER INCLUDED OFFENSE INSTRUCTION
OF MANSLAUGHTER BE INCLUDED IN THE COURT'S CHARGE? 1

TWO: WHETHER THE FIRST COURT OF APPEALS ERRED IN
UPHOLDING THE TRIAL COURT'S DENIAL OF PETITIONER'S
REQUEST THAT AN INSTRUCTION ON SELF DEFENSE BE
INCLUDED IN THE JURY CHARGE? 1

ARGUMENT ONE 1-4

ARGUMENT TWO 5-8

PRAYER FOR RELIEF 9
CERTIFICATE OF SERVICE 9
APPENDIX 10

-a-
 INDEX OF AUTHORITY T.R.A.P. 68.4(b)

Cases Page

Aquilar v. State,682 S.W.2d556,558(Tex.Crim.App.1985) ,-.. 2
Almanza v. State,686 S.W.2d 157 (Tex .Crim. App. 1984 ) 3,6
Bennett v. State,235 S.W.3d 241,243(Tex.Crim.App.2007) 6
Cavazos v. State,382 S.W.3d 377,383(Tex.Crim.App.2012) 1
Chapman v. State,921 S.W.2d 694,695(Tex.Crim.App.1996) 6
Durden v. State 290 S.W.3d 413(Tex.App.-Texarkana 2009) 3
Hamel v. State,916 S.W.2d 491 (Tex .Crim. App. 1996 ) 8
Juarez v. State,308 S.W..3d 398,404-05(Tex.Crim.App.2010) 5
Martinez v. State,16 S.W.3d 845-848(Tex.App.-Houston[1st Dist.]
2000) 3
Mathis v. State,67 S.W.3d 918 ,926 (Tex .Crim. App .2002 ) 2
Ryser v. State,01-13-00634-CR(Tex.App.-Houston[1st Dist]
November 25, 2014) 7
Shaw v. State,243 S.W.3d 647,657-58(Tex.Crim.App.2007) 5
Thomas v. State,678 S.W.2d 82 ,84( Tex .Crim. App. 1984) 8

STATUTES & RULES

TEX.R.APP.PROC. 68.4(a) a
TEX.R.APP.PROC. 68.4(b) b
TEX .R. APP .PROC . 68.4(c) . i
TEX.R.APP.PROC. 68.4(d) i
TEX.R.APP.PROC. 68.4(e) i
TEX.R.APP.PROC. 68.4(f) 1
TEX.R.APP.PROC 66. 3 (O 1
TEX.R.APP.PROC. 66.3(e) 1

-b-
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Jose Velez, pro se and respectfully submits this

Petition for Discretionary Review and requests that this Court

grant review of this cause. He will show the following in support

thereof:

STATEMENT REGARDING ORAL ARGUMENT T.R.A.P. 68.4(c)

Petitioner requests oral argument as the issues require detailed

explanation to fairly vindicate his claim.

STATEMENT OF THE CASE T.R.A.P. 68.4(d)

Petitioner was charged with the murder of Juan Malacara Romero.

It was alleged that on or about October 15,2012 that petitioner

with intent to cause serious bodily injury did strike Romero with

his hand and foot.(CR:5) The State sought to enhance punishment

with a prior felony of indecency w/child by exposure.(CR:12-13)

Petitioner was tried and found guilty but not before timely

requesting a charge on manslaughter and self defense. The Court

denied these and he was sentenced to (45) forty-five years in

Texas Department of Criminal Justice Institutions Division
and assessed a $10,000.oo fine. (CR:85-86 & RR 2:1 ) He timely

appealed.

STATEMENT OF PROCEDURAL HISTORY T.R.A.P. 68.4(e)

In trial cause number 2013-CR-0307C from the 187th District Court

of Bexar County,Texas petitioner was convicted May 9,2012 by a jury.
Punishment was assessed at (45) fortyPfive years,$10,000.00 fine.

(Cr:85-86 & R2:l) He gave notice of appeal. The First Court of

Appeals affirmed in an unpublished opinion issued June 4, 2015.
Rehearing was filed.and denied July 2,2015. The Court granted a (60)
day extension to file PDR.
-i-
 GROUNDS FOR REVIEW T.R.A.P. 68.4(f)

ONE: WHETHER THE FIRST COURT OF APPEALS ERRED IN UPHOLDING
THE TRIAL COURT'S DENIAL OF PETITIONERS REQUEST FOR A
LESSER INCLUDED OFFENSE INSTRUCTION OF MANSLAUGHTER BE
INCLUDED IN THE COURT'S CHARGE?

TWO: WHETHER THE FIRST COURT OF APPEALS ERRED IN UPHOLDING
THE TRIAL COURT'S DENIAL OF PETITIONERS REQUEST THAT
AN INSTRUCTION ON SELF DEFENSE BE INCLUDED IN THE JURY
CHARGE?

REASON FOR REVIEW T.R.A.P. 66.3(e)

WHETHER THE JUSTICES OF THE FIRST COURT OF APPEALS HAS DISAGREED
ON A MATERIAL QUESTION OF LAW NECESSARY TO THE COURT'S DECISION?

ARGUMENT ONE:

Petitioner was charged with Murder,pursuant to Tex.Penal Code

19.02(b)(2) which provides:

(a) A person commits an offense if he intends to commit serious

bodily injury and commits an act clearly dangerous to human

life that causes the death of an individual.

(CR: 5) Prior to submitting the guilt-innocence charge to the jury,

Petitioner requested that the trial court submit the lesser included

offense of manslaughter. This request was denied. (R: 5-6)

A person commits manslaughter if he recklessly causes the death

of an individual. Tex.Pen.Code §19.04. This Court has determined

that manslaughter is a lesser-included offense of murder under

Texas Penal Code §19.02(b)(2). Cavazos v. State,382 S.W.3d 377,383

(Tex.Crim.App.2012). The Court determined in Cavazos 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. Cavazos, id. at 385.

-1-
 A two-prong test applies to whether a jury charge on a lesser

must be given: first, the lesser included offense must be included

within the proof necessary to establish the offense charged,and

second, some evidence must exist in the record that if the

defendant is guilty he is guilty only of the lesser offense.

Aquilar v. State,682 S.W.2d 556,558(Tex.Crim.App.1985); Mathis v.

State,67 S.W.3d 918,926(Tex.Crim.App.2002).

As indicated above the first prong of the test has been met. As to

the second, the record clearly establishes that a jury could have

found from the evidence that rather than intending serious bodily

injury the conduct of the actors was reckless instead, in that

they were aware of but consciously disregarded a substantial

and unjustifiable risk that the circumstances existed or that

the result would occur. Tex.Pen.Code §6.03(c).

As evidenced by the testimony of Larry Castro, it demonstrates

that all three actors were trying to keep the complainant from

reaching in his pocket and that there was no intent to kill him.

( R 4 : 21-22 ) There were no weapons used during the incident,

such as a firearm, or a knife or a club, and the intent of the

participants was ambiguous to say the least. The jury could
have determined that the intent of the actors was to prevent the

deceased from drawing a weapon or to cause injury not amounting

to serious bodily injury.

The testimony of Bernardo Crisanto., the other co-defendant, is

likewise instructive. He testified that there was no plan in place

to attack the complainant and it was not his intent to seriously
injure him. (R 3: 189,195 ) Even during questioning Crisanto,

while admitting to knowing that he was hurting the complainant

-2-
did not claim that he knew he or the others were causing serious

bodily injury. (R 3: 196)

Further, the complainant did not die of an observable injury, but

rather due to an internal injury that had to be determined by the

medical examiner. The physical altercation.between all of the

parties was likewise brief; lasting about half a minute according

to the video capture of the incident. (R8: State's Exhibit 3)

Accordingly this is not a case where intent can be inferred from

the actions of the participants, such as a case in which the

deceased is shot with a gun or stabbed with a knife. Martinez v. State

16 S.W.3d 845-848(Tex.App.-Houston[lst Dist.]2000).

STANDARD OF REVIEW

The standard of review for claims of a jury charge error is set

out in Almanza v. State, 686 S.W.2d 157(Tex.Crim.App.1984). A court

will first determine if there is error in the jury charge. If there

is error, then the court will next determine whether the error was

the subject of a timely objection. In the event that there is a

timely objection, the court's judgment is reversed if the error

is calculated to injure the rights of the defendant. Tex.Code

Crim.Proc. Art. 36.19. This standard requires proof of no more

than some harm to the accused from the error. Durden v. State, 290

S.W.3d 413(Tex.App.-Texarkana 2009). The harm in this case is

evident and the First Court of Appeals erred in failing to

recognize the degree of harm here to petitioner. Had the jury

found him guilty of manslaughter he would have been subjected to

a reduced punishment range where the minimum range of punishment

would have began at five years rather than fifteen with a maximum
of twenty rather than 99 or Life. This difference is significant.

-3-
 The record supports the contention that petitioner made a timely

request for an instruction and was denied by the trial court.( R5:

5-6 ) The degree of harm is significant as it subjects petitioner

to a wider range of punishment starting at 15 years. The error is

how can petitioner not be eligible for a charge on manslaughter

when he was acting in concert with others whom were eligible

for said charge. And he clearly was not the precipitator of the

events that day. It is a reasonable 'deduction' from the evidence

that Larry Castro possessed the motive to protect himself from

complainant. Castro was the reason for petitioner's presence and

the 'impetus' for the attack, if any.

The Justices of the First Court of Appeals have failed to give

proper deference to the testimony of Larry Castro who claimed

self defense. The record reflects that petitioner was a friend

of Castro whose sole presence was because of Castro giving support

to the reasonableness of the inference that Castro's fear fed

the other co-defendants. Therefore, the Court of Appeals erred

in failing to recognize the need for a charge on a justification

defense or manslaughter in this case. Accordingly, the Justices

have disagreed on a material question of evidence in this case

which should favor petitioner. Review should be granted so this

court may decide this point. T.R.A.P. 66.3(e).

Having met all prerequisites as to request for charge,denial,

objection, harm and facts, in the record to support said charge

petitioner is without an adequate remedy at law, save the discretion

of this court. In factoring harm,it must be considered that

petitioner received twice the amount of time as his co-defendants

for an un-planned altercation where no guns or knifes were used.

-4-
ARGUMENT TWO:

The Court of Appeals erred in upholding the trial court's

denial of petitioner's request that an instruction on self defense

be included in the jury charge. Prior to submitting the guilt-

innocence charge to the jury, petitioner requested that the trial

court instruct the jury on the law of self defense. This request

was denied. ( R5: 4 )

Applicable Law

The trial court admitted prior testimony of co-defendant Larry

Castro. This testimony raised the factual issue of self defense,not

only as it applied to Castro himself, but also as it applied

to petitioner. Castro claimed that he was trying to keep the

complainant's hands out of his pockets because he believed him to

be carrying a weapon and that petitioner had instructed the

complainant to take his hands out of his pocket; which he refused

to do. ( R4 : 19-24 )

The trial court is required (obligated) to give a requested

instruction on every defensive issue raised by the evidence without

regard to its source or strength, even if the evidence is contrad

icted or is not credible. Juarez v. State, 308 S.W.3d 398, 404-05

(Tex.Crim.App.2010). Even a minimum quantity of evidence is

sufficient to raise a defense as long as the evidence would support

a rational jury finding as to the defense. A defense is supported

(or raised) by the evidsence if there is some evidence, from any

source, on each element of the defense that, if believed by the

jury would support a rational inference that the element is true.

Shaw v. State, 243 S.W.3d 647,657-58(Tex.Crim.App.2007)

-5-
 A defendant at trial preserves error ifthe requested charge is

specific enough to put the trial court on notice of the omission

or error in the charge,and the requested charge need not be in

"in perfect form" but only sufficient enough to bring the request

to the trial court's attention. Chapman v. State, 921 S.W.2d 694,

695(Tex.Crim.App.1996). "Magic words" are not required; a complaint

will be preserved if the substance of the complaint is conveyed to

the trial judge. Bennett v. State, 235 S.W.3d 241,243(Tex.Crim.App.

2007). Petitioner was charged with murder; therefore it was

abundantly clear that he was requesting a self defense instruction

on the law of deadly force in defense of person pursuant to

Texas Penal Code § 9.32. The evidence from Castro that the

complainant was reaching for an object in his pocket and that

an object was in his pocket are sufficient to raise the issue of

self defense.

STANDARD OF REVIEW

In assessing harm for an erroneously omitted defensive issue a four

part analysis is applied: (1) the entire jury charge; (2) the state

of the evidence, including the contested issues and weight of

probative evidence; (3) the arguments of counsel; and (4) any other

relevant information revealed by the record of the trial as a whole.

Almanza v. State, 686 S.W.2d 157,171(Tex.Crim.App.1984).

In petitioner's case since the trial court refused both his

requested instructions on sself defense and the lesser offense

of manslaughter the jury was left with no option but to find

petitioner guilty of murder if they found he acted together

with his co-defendants.

An instruction on self defense would have allowed the jury

-6-
to consider if petitioner himself felt that his own life was

in danger during the altercation. Just as importantly, it would

have allowed the jurors to determine whether an offense was

committed at all. If the jurors found that Larry Castro, who was

the first one to contact the complainant, was justified in using

force to protect himself because of the complainant's threats they

could have reasonably concluded that petitioner was not assisting

in an unlawful act but in another person's justified use of force.

In Ryser v. State, the First Court of Appeals recently held that

self defense is not necessarily personal to a defendant on trial.

The defendant in that case was a law enforcement officer on trial

for official oppression. As a defense he raised the justification

defense that a peace officer "is justified in using force against

another when and to the degree the actor reasonably believes

the force is immediately necessary.to make or assist in making an

arrest." Tex.Pen.Code §9.51. In order to place this defense in

proper context the trial court granted the state's request that

the jury also be instructed concerning the limits of use of force

by police officers pursuant to Tex.Pen.Code §9.31(c). Specifically,

where a suspect may use force in response to unlawful force.

Ryser v. State,01-13-00634-CR(Tex.App.-Houston[1st Dist]November

25, 2014).

In holding that this was proper the First Court of Appeals

determined that self defense is relevant not only from a defendant's

perspective but also from the perspective of the relevant actor.

Ryser, id. at 21. In Ryser the relevant actor was not the defendant

but the alleged victim. In petitioner's case the relevant actors

are both himself and Larry Castro. In Ryser, it was also determined

-7-
that self defense could be raised without the testimony of a

relevant actor, but from other facts and circumstances as well.

Ryser, id.,at 21-22.

The Justices of the Court of Appeals erred in upholding the

trial court's denial of petitioner's request for a self defense

instruction. This denial effectively denied petitioner a right to

put on a defense. It is settled law in Texas that a defendant may

raise multiple defensive theories at trial. Hamel v. State,916 S.W.2d

491(Tex.Crim.App.1996); Thomas v. State,678 S.W.2d 82,84(Tex.Crim.

App.1984)(holding defendant entitled to admission of every defensive

issue raised by the evidence,even if the defense may be inconsistent

with other defenses.) This Court is the ultimate finder of fact in

criminal cases in Texas and has upheld the right to a defendant's

right to be able to present a defense at trial even multiple theories

for the juries consideration. In this case the First Court of Appeals

has misapprehended the right of petitioner to be charged on self

defense where the testimony of a relevant actor not defendant's

testimony made self defense relevant. Based on this Court's case

law (precedent) the Justices of the First Court of Appeals have

sanctioned a departure by a lower court as to call for an exercise

of this Court's power of supervision. The Court of Appeals has

misapprehended the right to present a defensive theory or multiple

theories. And or the right of defendant to react to "apparent"

danger as though it was real. The testimony of Larry Castro

admitted in petitioner's trial raised several issues which the

Justices fail to give deference. Petitioner has a right to defend

a third party from real or apparent danger. He has a right to

defend himself based on the real or apparent fear of Larry Castro.

-8-
 This court should grant review of this issue and allow full

briefing and appointment of counsel to resolve this situation

from petitioner's perspective. It must be considered by this

Court that petitioner 's trial cannot be called reliable when he

was denied an opportunity to present a defense at trial. Further,

based on this Court's precedent the Court of Appeals has so far

departed from the accepted and usual course of judicial proceedings

as to call for an exercise of the Texas Court of Criminal Appeals'

power of supervision.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, petitioner respectfully prays for

the relief requested or other equitable relief the Court may deem

just.

Respectfully/ submit; ted..

Jose V<§fl.ez#193
CoffieJ/d Unit
2661 iyk 2054
Tennessee Colony,

CERTIFICATE OF SERVICE

I, Jose Velez, hereby certify that a true and correct copy of

this Petition for Discretionary Review was mailed to the Clerk

of the Texas Court of Criminal Appeals postage prepaid to P.O. Box

12308 Capitol Station, Austin, Texas 78711.

Executed on this^^day of JW/«^$^ 2015. V_,J^1/.W^! \r^T^

-9-
 Opinio* is*ued J„a, 4 2Q15 '"' ' 7Slv

In The

Court of auu^
For The

NO. 01-14-00544-CR

JOSE VELEZ; Appelllant
v; • .

"ESTATE OF TEXAS, Appeii;
On Appeal fr„mthei87(|lDi.srr.c(Court
Bexar County, Texas'
Tnal Court Case No. 2013-CR-0307C
MEMORANDUM OPINION
JeSta chargedJo,Veiezwth(hemurderofjuanM^
^~^, - enhancement paragraph aJlegmg ^ vete ^ a

«*of,h,s Court on any^evanUs^ThxKpk iTJ™" D*fe-
 After a trial, a jury found

Velez guilty of murder and found the enhancement paragraph true. It assessed a

punishment of 45 years' imprisonment and a $10,000 fine.

On appeal, Velez contends that the trial court erred in denying his requests

for two jury instructions, one on the lesser-included offense of manslaughter and

the other on the law of self-defense. We affirm.

Background

Romero and Larry Castro were regulars in a pool league that met Monday

evenings at a sports bar in San Antonio. They had once played on the same team,

but by 2012, they played on opposing teams. One Monday evening in October

2012, they were participating in a league tournament when two men, later

identified as Velez and Bernard Crisanto, walked into the bar. Crisanto had

accompanied Velez into the bar because Velez had told him that he needed to go

there to pick up some money.

The bar owner did not recognize Crisanto and Velez, but later recalled

having noticed them because they both were tall and one was wearing a muscle

shirt, which violated the bar's dress code. While the owner considered whether to

ask Crisanto and Velez to leave because of the violation, the two men approached

Castro. Within a few minutes—before the bar owner spoke to them-^all three men

left the bar together.
 In the meantime, Romero had left the bar to buy cigarettes' at the
convenience store apross the street. Crisanto and Velez talked into the store,
followed Romero out, and confronted him. Romero acknowledged the two men.
He seemed to look behind them, where Castro was standing, then suddenly started
runnmg back to the store. Castro charged forward and pushed Romero into the
door, pmrred him, and threw him to the pavement. Then, Castro grabbed Romero's
leg and pulled him between two cars parked in front of the store. Castro began
kicking Romero, and Cnsanto and Velez joined in. Cnsanto kicked Romero in the
head, wh„e Velez kicked him in the abdomen. The men were significantly larger
than Romero; Romero tried to fight back, bu, eventually rolled into aball and lost
consciousness.

Velez, Castro, and Crisanto stopped kicking Romero and left the scene
shortly after he became unconscious. Castro returned to the bar, agitated. He
retrieved his pool cues, and he and his w,fe abruptly left the bar. The other two
men, who had parked their cars nearby, also left the area.
Aconvenience store employee called 9-1-1 when he saw the fight begin.
After the three assailants left the scene, another employee attended to Romero and
stayed with him until the emergency responders arrived. Asecurity video camera
at the convenience store captured the entire incident.
 Romero died that evening. He had several blunt force injuries, abrasions,

and contusions on his face, abdomen, back and arms, multiple: rib fractures, and

internal bruising in two areas deep beneath his scalp. The forensic pathologist

from the Bexar County Medical Examiner's office who performed the autopsy

ruled that the cause of Romero's death was homicide through blunt force trauma to

the chest, which caused a large tear through the epicardium, the membrane

between the pericardium and the outer surface of the heart.

After the State rested its case in chief, the defense proffered an excerpt of

Castro's testimony from his trial. In the portion read to the jury in this case, Castro

stated that he was in fear for his life when he saw Romero because Romero had

previously threatened to kill him and had beaten him with a cue ball. Castro

explained that he had been warned by other pool tournament participants not to

come to the tournament because Romero was going to be there. Castro recounted

that when he saw Romero in front of the convenience store, Romero had his hand

in his pocket and that he kept trying to reach into his pocket even after Castro

knocked him to the ground. Castro testified that he kicked Romero's hands to keep

him from reaching into his pocket. The homicide detectives did not recover any

weapons from Romero, only a cell phone.
 Charge Error

I. Standard of Review

Both of Velez's issues complain that the trial court erred in refusing to
submit tendered instructions to the jury. In analyzing ajury-charge issue, we first
must decide if error exists. Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim.
App. 1984) (op. on reh'g); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—
Houston [1st Dist.] 2009, pet. refd); see Ngo v. State, 175 S.W.Sd 738, 743 (Tex.
Crim. App. 2005) (explaining that preservation of charge error does not become
issue until court determines that harm exists); see also Warner v. State, 245 S.W.3d
458, 461 (Tex. Crim. App. 2008); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). When, as here, the appellant has properly preserved the claimed error
by atimely objection to the charge, the conviction will require reversal "as long as
the error is not harmless." Almanza, 686 S.W.2d at 171. The Court of Criminal
Appeals has interpreted this to mean that any harm, regardless of degree, is
sufficient to require reversal. Arline v. State, 111 S.W.2d 348, 351 (Tex. Crim.
App. 1986); see 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, that defendant suffered "some harm"). In deciding whether appellant
suffered some harm, we consider: (1) the entire jury charge; (2) the state of the
evidence, including the contested issues and weight of probative evidence;
(3) counsel's argument; and (4) the whole record. Abdnor v. State, 871 S.W.2d

726, 739^10 (Tex. Crim. App. 1994); Almanza, 686 S.W.2d at 171. The "some

harm" test does not mandate reversal on a showing of possible harm—it requires

that the appellant establish actual harm. Medina v. State, 7 S.W.3d 633, 643 (Tex.

Crim. App. 1999). The appellate court reviews the evidence and any part of the

record as a whole that illuminates "the actual, not just theoretical, harm to the

accused." Id. at 643; Almanza, 686 S.W.2d at 174.

II. Refusal of manslaughter instruction as lesser-included offense

Velez first contends that the trial court committed harmful error by failing to

charge the jury with the lesser-included offense of manslaughter. •

A. Applicable law

An offense qualifies as a lesser-included offense of the charged offense if:

(l)it is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;

(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 2006):
 We employ a two-pronged test in determining whether a defendant is
entitledto an instruction on alesser-included offense. See Sweedy. State, 351
S.W,3d 63, 67 (Tex. Crim. App. 2011), Exparte Watson, 306 S.W.3d 259, 262-^3
(Tex. Crim. App. 2009), see also Hall y. State, 225 S.W.3d 524, 535-36 (Tex.
Crim. App. 2007). The first prong ofthe test requires the court to use the "cognate
Pleadings" approach to determine if an offense is alesser-included offense of
another offense. See Watson, 306 S.W.3d at 271. The first prong ,s met if 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." Id. at 273. This is aquestion of law, and „
does not depend on the evidence to be produced at trial, free v. State, 333 S.W.3d
140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535.
ThC Sta,Ut0ry distinction between mu^nd manslaUfihter ,s that mi|nter
requires adefendant to have intended to carious bodily injury and to have
committed an act clearly togrou^uman^^ the death of „
^la^hterj Compare Tex. PenalCodeAnn. §§ 19.02(b)(1) &(2) (West 2011)
(providing, ,n pertinent part, that aperson commits murder "if he intentionally or
knowingly causes the death of an individual, or intends to cause serious bodily

injury and commits an act clearly dangerous to human life that causes'the death of

an individual") with id. § 19.04 (providing that a person commits manslaughter "if

he recklessly causes the death of an individual"). The Court of Criminal Appeals

has determined that manslaughter is a lesser-included offense of murder under

section 19.02(b)(2) of the Penal Code, the statutory basis for Velez's indictment.

See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Accordingly,

Velez's request meets the first prong.

A defendant is entitled to a requested instruction on a lesser-included offense

when some evidence in the record would permit a jury rationally to find that if the

defendant is guilty, he is guilty only of the lesser-included offense. Hall, 225

S.W.3d at 536 (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App.

1994)). "The credibility of the evidence, and 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)). Anything more than a scintilla of

evidence may be sufficient to entitle a defendant to a charge of a lesser-included

offense, but it is not enough that the jury may disbelieve crucial evidence
 pertaining to the greater offense. Hall, 225 S.W.3d at 536; Skinner v. State, 956
S.W.2d 532, 543 (Tex. Crim; App. 1997).
For a manslaughter instruction to be proper, the record therefore must
contain some affirmative evidence from which a rational jury could infer that
Velez was aware but consciously disregarded asubstantial and unjustifiable risk
that Romero's death would occur as aresult ofhis conduct: See Tex. Penal Code
ANN. §6.03(c) (West 2011) (defining "reckless"); Cavazos, 382 S.W.3d at 385.
B. Analysis

Velezreliesmi the excerpt of Castro's testimony from Castro's earlier trial
^J^^*^^ instruction' Velez points to:
('} Casf°'s testimony that neither he, Vele^CTCrisanto used weapons in the
attack and Castro tried to keep Romero from reacWigmtohis pockets because he
fe^red_thatjWro had aweapon, (2) Crisanto's testimony that he did not plan to
attack Romero and ditnoHnten^tojermu^^^
Romero did not_appear mortally wounded because_he_dfedfrom internal injuries
rather than external, observable ones.

Nothing ,n the record suggests that Castro communicated his fears about
Romero carrying aweapon to Velez. Castro conceded that he did not tell Velez
that Romero might have agun or aknife. Further, Castro did not ask Velez or
Crisanto to help with the assault; they simply joined in. The three men easily
could have overpowered Romero and taken any weapon from him, but they did not

attempt to do so: instead, the video reveals that Crisanto kicked Romero in the

head while Velez kicked him in the abdomen. More important, the men continued

to assault Romero even after Romero stopped resisting, until he became

unconscious. No affirmative evidence in the record supports a reasonable

inference that Velez did not intend to commit serious bodily injury as he repeatedly

kicked Romero with sufficient force to break multiple ribs and mortally wound

him. See Tex. Penal Code Ann. § 19.04; cf. id. § 19.02(b)(2) (providing that

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").

The record does not permit a rational finding that Velez is guilty only of

manslaughter. See Hall, 225 S.W.3d at 536. We therefore conclude the trial court

did not err in denying Velez's request for a manslaughter instruction.

C Refusal of self-defense instruction

In his second issue, Velez contends that the trial court erred in refusing to

submit his requested jury instruction pursuant to Texas Penal Code section 9.04,

relating to self-defense. We review a trial court's denial of a request to include an

instruction on a defensive issue in the charge for an abuse of discretion, and we

view the evidence in the light most favorable to the defendant's requested

submission. See Bujkin v. State, 207 S.W.3d 779, 782 (Tex, Crim. App. 2006);

10
 Love v. State, 199 S.W.3d 447, 455 (Tex. App.-Houston [1st Dist.] 2006, pet.
refd). .

Velez again relies on Castro's testimony to support his request for aself-
defense instruction. According to Velez, the evidence of Castro's fear that
Romero was reaching for aweapon also raises afactual issue concerning whether
Velez was acting in self-defense.

We disagree. "[A] defensive instruction is only appropriate when the
defendant's defensive evidence essentially admits to every element of the offense
including the culpable mental state, but interposes the justification to excuse the
otherwise criminal conduct." Shaw, 243 S.W.3d at 659; see Ford v. State, 112
S.W.3d 788, 794 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (explaining that
assertion ofdefense is inconsistent with denial ofcharged conduct).
Velez denied committing murder. He did not proffer any evidence admitting
to the elements ofthe offense, and no evidence supports areasonable inference that
Velez reasonably believed that Romero would cause Velez serious bodily injury.
Accordingly, the trial court properly concluded that Velez was not entitled to the
requested jury instruction on self-defense. See Lavern v. State, 48 S.W.3d 356,
360 (Tex. App.-Houston [14th Dist.] 2001, pet. refd) (holding that ifno evidence
suggests accused responded to, or believed he was responding to use of unlawful
force, he is not entitled to self-defense instruction).

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