Amber Renee Guyger v. the State of Texas

AFFIRMED and Opinion Filed August 5, 2021

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01236-CR

AMBER RENEE GUYGER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F18-00737-Q

OPINION
Before Chief Justice Burns, and Justices Myers and Partida-Kipness
Opinion by Chief Justice Burns
Amber Renee Guyger was convicted of murdering Botham Jean and

sentenced by the jury to ten years’ imprisonment. In two issues, Guyger argues the

evidence is legally insufficient to support her murder conviction and second, and in

the alternative, this Court should acquit her of murder, convict her of criminally

negligent homicide, and remand for a new hearing on punishment. We affirm the

trial court’s judgment.

In July 2018, Guyger moved to the Southside Flats Apartments in Dallas

where she lived alone in apartment 1378. Residents of the apartment complex use
key fobs rather than traditional keys to unlock their apartment doors. The complex

has a multilevel garage with entrances on each floor. Each hallway entrance lacks

any placard or other indicator showing which floor of the complex the hallway

accesses or which floor of the garage can be accessed by exiting the hallway.

On September 6, 2018, Guyger, a Dallas police officer, left work at 9:33 p.m.

Guyger and her partner Martin Rivera exchanged texts about getting together later

that evening. Rivera called Guyger at 9:38 p.m., and she was on the phone with him

at 9:46 p.m. when she pulled into the parking garage at her apartment complex.

Guyger continued speaking to Rivera until almost 10:00 p.m.

Guyger testified that, when she parked in the garage, she believed she was on

the third floor. She did not notice the garage roofline on the fourth floor was

different from the roofline on the third floor. As Guyger walked down the hallway

on the fourth floor, she believed she was on the third floor where her apartment was

located. When she reached apartment 1478, she believed she was outside her own

apartment. Guyger testified that, while she was standing outside the apartment, she

heard loud shuffling, like someone was walking inside. Guyger admitted that, before

she opened the door, she concluded there was a threat inside the apartment; however,

she did not take a position of cover and concealment or call for backup.

The door was ajar and not latched closed. Guyger turned her key fob in the

lock, which opened the door farther. Using her left arm, Guyger pushed open the

2
door. Guyger testified these events occurred in the span of two seconds. There was

no light on inside the apartment, but Guyger said she “heard moving around inside”

and was “scared to death.”

Guyger testified she dropped her police vest and other equipment in front of

the door to keep the door propped open. Looking into the apartment, which had the

same floor plan as her apartment, she saw a “silhouette figure” standing in the back

of the apartment. From where she was standing near the doorway, she could not see

the figure’s hands. Guyger pulled her weapon and yelled, “Let me see your hands.

Let me see your hands.” According to Guyger, the figure walked towards her at a

fast pace, yelling “hey, hey, hey” in “an aggressive voice.” Guyger was focused

only on the figure—Botham Jean, the lawful inhabitant of apartment 1478—and she

testified she believed he was going to kill her. Guyger fired two shots at Jean,

intending, in her words, “to kill him.” One round struck the south wall of Jean’s

apartment, and the other struck Jean in the chest. Jean fell to the ground with his

feet pointed away from the couch on which he had been sitting and his head close to

an ottoman and couch.

When Guyger walked into the kitchen, she saw the interior of the apartment

and realized she was not in her apartment. Confused, Guyger knelt next to Jean.

She knew she had shot him, but she did not know where the bullet hit him. At 9:59

p.m., Guyger called 911 with the phone in her right hand. She testified that, at the

3
same time, she began chest compressions on Jean with her left hand. She identified

herself as a police officer to the 911 operator, requested an “officer assist,” and

repeatedly told the operator she thought she had shot someone in what she believed

was her apartment. She did not know where she was and went out in the hallway to

look at the apartment number so she could provide that information to the operator.

While on the phone with the operator, Guyger performed a sternum rub, which she

had seen paramedics perform to wake up someone who is unconscious. From the

five-minute 911 recording, the jury heard Guyger say twenty times she thought she

was in her own apartment. They also heard her say, “stay with me, Bud,” several

times, “I f***ed up,” and “I’m gonna lose my job.”

In response to Guyger’s “officer assist” call, officers Keenan Blair and

Michael Lee were the first to arrive at Jean’s apartment. Guyger directed the officers

into apartment 1478. As reflected in body camera video, Lee instructed Guyger to

move away from Jean as he and then Blair performed CPR on Jean, who was alive

but unconscious. Lee’s body camera video showed Jean bleeding from a gunshot

wound and Guyger saying repeatedly that she had shot Jean.

When paramedic John Farleigh arrived at Jean’s apartment at 10:08 p.m.,

Dallas police officers were performing CPR on Jean, but he had no pulse and was

not breathing. The paramedics took over first aid from the officers and transported

Jean to Baylor Medical Center, where he died without regaining consciousness.

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 Detective Eduardo Ibarra testified that a blood test was performed on Guyger

at approximately 3:00 a.m. No drugs or alcohol were detected in Guyger’s blood.

Ibarra also seized all parts of Guyger’s uniform for lab analysis of any biological

evidence on the uniform. No blood was found on her uniform, and none of the latex

gloves Guyger carried while on duty that day had been used.

Detective Dale Richardson testified that he arrived on the scene around 11:10

p.m. and initially met with Ibarra. After obtaining a search warrant, Richardson

located a set of keys hanging from the door that he believed were Guyger’s. The

jury saw video evidence demonstrating how the locking mechanism on the doors

worked. A small blinking red light lit up when the wrong fob was inserted, but a

small blinking green light lit up and the door electronically unlocked when the

correct fob was inserted. Video of Richardson and Ibarra comparing use of Guyger’s

key and Jean’s key was also played, which demonstrated that when inserted into the

door of apartment 1478, Guyger’s key generated a red light and would not activate

the lock, but Jean’s key generated a green light and made a “whirring sound” while

it unlocked the door.

The Texas Rangers took over the investigation from the Dallas Police

Department the day after the shooting, met with Ibarra and Richardson, and reviewed

the evidence collected by DPD. Texas Ranger David Armstrong characterized the

5
layout of the apartment complex as “confusing” and discovered that about 23% of

residents who lived on the third and fourth floors and 15% of residents in the entire

building had, at some point, put their key fob in the wrong door. Armstrong testified

residents gave numerous reasons why they realized they were in the wrong place:

the red blinking light on the door lock, nearby decorations indicating a different

resident’s apartment, or an incorrect apartment number. In the same vein, several

residents testified about having gone to the wrong floor or apartment.

April Kendrick, a supervisor of the firearm and tool mark unit at the

Southwestern Institute of Forensic Sciences, confirmed the shell casings found in

Jean’s apartment were fired from Guyger’s nine millimeter pistol. Kendrick also

testified that the bullet trajectory indicated Jean may have been bent over and rising

from the couch when he was shot. Testimony from the medical examiner, Dr.

Chester Gwin, revealed that Jean died from the single gunshot to his chest. The

bullet entered his chest just above his nipple and traveled on a steep trajectory

downward through his left lung, heart, diaphragm, stomach, and intestine, stopping

in a muscle in his left abdomen near his spine. Dr. Gwin explained the bullet’s path

indicated that either the shooter was standing over Jean and shooting down, or Jean

was lying down or bent forward, in the process of getting up from the couch or

ducking. Guyger could not explain the inconsistency between her testimony that

Jean was standing straight up and moving toward her when she shot him and the

6
 bullet trajectory evidence indicating Jean was shot from above or while in the

process of getting up or ducking.

Texas Ranger Michael Adcock testified about the trajectory of the bullet that

hit the back wall in Jean’s apartment. The flight path of that bullet indicated it had

been fired from the doorway, which was also confirmed by gunshot residue

recovered on the doorframe. At the conclusion of the evidence, the jury found

Guyger guilty of murder as charged in the indictment. This appeal followed.

In her first issue, Guyger argues the evidence is legally insufficient to prove

beyond a reasonable doubt that she committed murder. Specifically, Guyger argues

“(1) through mistake, Guyger formed a reasonable belief about a matter of fact—

that she entered her apartment and there was an intruder inside—and (2) her

mistaken belief negated the culpability for [m]urder because although she

intentionally and knowingly caused Jean’s death, she had the right to act in deadly

force in self-defense since her belief that deadly force was immediately necessary

was reasonable under the circumstances.”

I. Legal Sufficiency

We review a challenge to the sufficiency of the evidence on a criminal offense

for which the State has the burden of proof under the single sufficiency standard set

forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621,

624–25 (Tex. Crim. App. 2014). Under this standard, “the relevant question is

7
whether, after viewing the evidence in the light most favorable to the verdict, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

(quoting Jackson, 443 U.S. at 319) (emphasis in original). We measure the evidence

by the elements of the offense as defined by the hypothetically correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “This standard

accounts for the factfinder’s duty ‘to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”

Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319). “Therefore, in

analyzing legal sufficiency, we ‘determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence when

viewed in the light most favorable to the verdict.’” Clayton, 235 S.W.3d at 778

(quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).

Here, Guyger maintains that the evidence is legally insufficient to show she

committed murder in one of the ways set forth in section 19.02 of the Texas Penal

Code, which provides in relevant part that a person commits murder if she

(1) intentionally or knowingly causes the death of an individual; [or]

(2) intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual . . . .

TEX. PEN. CODE § 19.02(b)(1), (2). The indictment charged Guyger alternatively

with both theories, both theories were submitted to the jury, and the jury returned a

8
guilty verdict that did not specify which theory it relied upon. Evidentiary support

for either theory will therefore support the verdict. Sanchez v. State, 376 S.W.3d

767, 775 (Tex. Crim. App. 2012) (“When a jury returns a general guilty verdict on

an indictment charging alternate methods of committing the same offense, the

verdict stands ‘if the evidence is sufficient to support a finding under any of the

theories submitted.’”) (quoting Kitchens v. State, 823 S.W.3d 256, 258–59 (Tex.

Crim. App. 1991)); Williams v. State, 473 S.W.3d 319, 324 (Tex. App.—Houston

[14th Dist.] 2014, pet. ref’d) (“When the charge authorizes the jury to convict the

defendant on more than one theory, as it did in this case, the verdict of guilt will be

upheld if the evidence is sufficient on any theory authorized by the jury charge.”);

see London v. State, 325 S.W.3d 197, 206–07 (Tex. App.—Dallas 2008, pet. ref’d).

Guyger testified she intended to kill Jean when she shot him. In addition, the

State introduced evidence that Jean was a living human being—an individual—

whose death was caused by the gunshot wound inflicted by Guyger. Accordingly,

legally sufficient evidence supports the jury’s murder verdict. TEX. PEN. CODE §

19.02(b)(1), (2); see Clayton, 235 S.W.3d at 778–79. Guyger bore the burden of

producing evidence supporting each of her defensive issues, while the State retained

the burden of persuasion to disprove those defenses beyond a reasonable doubt.

Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018).

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 A. Mistake of Fact

“It is a defense to prosecution that the actor through mistake formed a

reasonable belief about a matter of fact if his mistaken belief negated the kind of

culpability required for commission of the offense.” TEX. PENAL CODE § 8.02(a).

Thus, this defense applies when the defendant’s mistaken belief, if accepted as true,

negates the culpable mental state for the crime charged. Granger v. State, 3 S.W.3d

36, 41 (Tex. Crim. App. 1999). The defense “applies only with respect to elements

that require proof of a culpable mental state.” Celis v. State, 416 S.W.3d 419, 430

(Tex. Crim. App. 2013). If the evidence raises the defense, “whether that 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 evidence,” the trial court should

provide the instruction. Granger, 3 S.W.3d at 38. Thus, in this case, mistake of fact

would apply if Guyger mistakenly formed a reasonable belief that negated her intent

to kill Jean.

We differentiate mistake of fact—a defense—from justification. Justification

depends on the circumstances giving rise to the challenged conduct, and the

reasonableness of the defendant’s belief that the conduct is immediately necessary

to avoid imminent harm.

Conduct is justified if: (1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm; (2) the desirability and
urgency of avoiding the harm clearly outweigh, according to ordinary
standards of reasonableness, the harm sought to be prevented by the law

10
 proscribing the conduct; and (3) a legislative purpose to exclude the
justification claimed for the conduct does not otherwise plainly
appear.”

TEX. PEN. CODE § 9.22. For instance, justification excuses the use of force against

another person “when and to the degree the actor reasonably believes the force is

immediately necessary to protect the actor against the other’s use or attempted use

of unlawful force.” TEX. PEN. CODE § 9.31(a). As such, Guyger would have been

justified in shooting Jean if she had formed a reasonable belief that doing so was

necessary to avoid imminent harm, as we discuss below.

As the State points out, a case from our sister court, Maupin v. State, provides

insight into the proper analysis in this case. See Maupin v. State, 930 S.W.2d 267,

268 (Tex. App.—Fort Worth 1996, pet. ref’d). Maupin was convicted of injury to

the elderly following an incident in which he repeatedly threw and pushed a woman

to the ground several times, causing her bodily injury. Id. As with the murder charge

against Guyger, the crime with which Maupin was charged—injury to the elderly—

turned on the intent to cause the result of the crime. Id. (“it is the intent to cause the

result, the bodily injury, that is the gravamen of the offense.”). Maupin asserted that

his mistaken belief that the complainant was burglarizing his home warranted a

mistake of fact instruction refused by the trial court. Id. But the court of appeals

affirmed the trial court, concluding evidence of a potential burglary failed to negate

Maupin’s intent to cause bodily injury, and at best raised the defense of protection

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of property. Id. No evidence suggested “Maupin was mistaken about whether the

force he used would cause bodily injury.” Id.

In addition, Rocha v. State provides a particularly apt comparison. See Rocha

v. State, No. 14-10-00569-CR, 2012 WL 1154306, at *9 (Tex. App.—Houston [14th

Dist.] Apr. 5, 2012, pet. ref’d) (mem. op., not designated for publication). Rocha

was an off-duty police officer convicted of aggravated assault with a deadly weapon

arising from an altercation outside his home. Id. at *2–5. On appeal, Rocha

complained the trial court erred in refusing his mistake of fact instruction based on

Rocha’s testimony about his mistaken belief that Dunham, the victim, was “armed,

was dangerous, or was preparing to attack, [or] assault [Rocha].” Id. at *9. In

affirming the trial court’s refusal to give the instruction, the court observed the facts

about which Rocha was mistaken did not negate the “culpable mental element of

aggravated assault.” The court reasoned as follows:

Appellant does not dispute that he intentionally or knowingly pointed
the rifle at Dunham to place him in fear of imminent bodily injury.
Instead, appellant’s alleged mistaken beliefs were merely facts relevant
to whether he was justified in intentionally or knowingly pointing the
rifle at Dunham to create such fear of imminent bodily injury; i.e.,
whether he acted in self-defense based on a reasonable belief such force
or threat of force was immediately necessary to protect himself against
Dunham’s use or attempted use of unlawful force.

Id. at *10.

In contrast, the court of criminal appeals determined in Granger that the trial

court erred in refusing the appellant’s requested mistake of fact instruction where

12
the evidence demonstrated appellant had killed a person by shooting into a car but

also testified that, at the time he fired the shots, he believed the car was unoccupied.

Granger, 3 S.W.3d at 37–39. “‘When an accused creates an issue of mistaken belief

as to the culpable mental element of the offense, he is entitled to a defensive

instruction of ‘mistake of fact.’” Id. at 41 (emphasis added) (quoting Miller v. State,

815 S.W.2d 582, 585 (Tex. Crim. App. 1991)).

Here, Guyger asserts her mistaken beliefs that she had entered her own

apartment and that Jean was an intruder negate her culpable intent to commit murder

because “although she intentionally and knowingly caused Jean’s death, she had the

right to act in deadly force in self-defense” under penal code section 9.32(b), and

“deadly force was immediately necessary and reasonable under the circumstances.”

However, as in Rocha and Maupin, the mistaken facts upon which Guyger relies are

relevant only to whether Guyger was justified in shooting Jean. Guyger’s right to

act in self-defense, if applicable, did not negate her intent to kill Jean; self-defense

instead would have justified the shooting.

In this regard, Guyger’s brief highlights “48 distinct factual points” which she

contends show her “clear mistake of fact” and her reasonable conduct under the

circumstances. Those points include the following: her fatigue; talking on the phone

when she mistakenly parked on the unmarked but wrong floor of the garage; missing

visual cues distinguishing the fourth floor from the third; the unlatched door that she

13
was able to open even though her key fob did not unlock it; the dim lighting in the

apartment and floor plan identical to her own apartment; and her training to shoot to

kill when she believed she was in mortal danger. None of these points, however,

speak even remotely to Guyger’s intent to kill. Instead, each fact relates only to

whether she was justified in defending herself because she believed she was in her

own apartment and that Jean was an intruder. Thus, rather than conclusively proving

her mistake of fact defense, the evidence here demonstrates the mistake of fact

instruction was not warranted because no evidence negated Guyger’s intent to kill

Jean when she shot him.1 We conclude the hypothetically correct jury charge should

not have included a mistake of fact instruction. Accordingly, the mistake of fact

issue is not part of our analysis of the sufficiency of the evidence to support Guyger’s

murder conviction. See Malik, 953 S.W.2d at 240.

B. Self-Defense

Guyger also argues that a reasonable jury could not have rejected self-defense

as a justification for her use of deadly force. Acquittal premised on self-defense

required Guyger to produce evidence that she reasonably believed deadly force was

1
We decline Guyger’s invitation to rely on a decision from the United Kingdom’s High Court of Justice,
Jaggard v. Dickinson, [1981] 72 CR. App. R. 33 (Eng.). In addition to lacking precedential value, as
observed by the State, the defendant in that case did not rely on mistake of fact as a defense for having
damaged a property at an address she mistakenly believed to be a different address. Rather, the Jaggard
defendant relied on a British statute providing a “lawful excuse” based on her belief that the property owner
had consented to the damage under which the reasonableness of the defendant’s belief was irrelevant. Id.
at 35–36.

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immediately necessary to protect herself from Jean’s use or attempted use of

unlawful force. See TEX. PEN. CODE §§ 9.31(a), 9.32(a)(1), 9.32(a)(2). An actor’s

belief that deadly force was immediately necessary is presumed to be reasonable if

the actor:

(1) knew or had reason to believe that the person against whom the
deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter
unlawfully and with force, the actor’s occupied habitation,
vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to
remove unlawfully and with force, the actor from the actor’s
habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense
described by Subsection (a)(2)(B).

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class
C misdemeanor that is a violation of a law or ordinance regulating
traffic at the time the force was used.

TEX. PEN. CODE § 9.32(b).

Under these provisions, the jury did not need to find that Jean was using or

attempting to use unlawful deadly force for Guyger’s right of self-defense to exist.

It could determine instead that she reasonably believed, from her standpoint at the

time of the shooting, “that deadly force, when and to the degree used . . . was

immediately necessary to protect [herself] against the use or attempted use of

15
unlawful deadly force” by Jean. Id.; Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim.

App. 1976).

In making this argument, Guyger relies on her mistaken belief that she was in

her own apartment to support the reasonableness of her belief that Jean posed an

imminent threat. Mistake of fact, however, plays no role in self-defense—the former

addresses Guyger’s culpable mental state; the latter addresses the circumstances and

reasonableness of Guyger’s conduct. Guyger’s argument thus bootstraps mistake of

fact to reach the section 9.32(b) presumption of reasonableness. As discussed below,

we conclude sufficient evidence defeated the presumption and also supports the

jury’s rejection of this defense because a reasonable jury could have determined

Guyger’s belief that deadly force was immediately necessary was not reasonable.

The jury could reasonably have determined beyond a reasonable doubt that

Jean had not unlawfully and with force entered Guyger’s occupied home or

attempted to murder her.2 Indeed, Guyger points to no evidence suggesting either

scenario occurred. Instead, she relies on her mistaken belief that she was in her own

apartment. The jury’s rejection of Guyger’s self-defense argument finds ample

2
We omit discussion of beliefs premised on vehicles or places of business since no one disputes that all
relevant events occurred at Jean’s apartment. See TEX. PEN. CODE §§ 9.31(a), 9.32(b)(1)(A), 9.32(b)(1)(B).
Likewise, because Guyger testified only that she believed Jean intended to kill her, we omit discussion of
any efforts to remove Guyger from her home, attempted aggravated kidnapping, sexual assault, aggravated
sexual assault, robbery, or aggravated robbery. See TEX. PEN. CODE §§ 9.31(a)(1)(B), 9.31(a)(1)(C).
9.32(b)(1)(B), 9.32(b)(1)(C).

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support in the record. It is undisputed that Jean was in his home and was not

attempting to unlawfully enter Guyger’s apartment. Further, Guyger admitted that

she could have taken a position of cover and concealment while she called for

backup rather than shooting Jean. This admission was buttressed by the testimony

of Officer Lee. In his testimony, Lee told the jury that if he came across a burglar

while off duty and was safely able to take a position of cover and concealment, he

would use his take-home radio to call for help rather than call 911. He explained the

radio connected directly to dispatch and thus provided faster help since the 911 call

would be delayed by the transfer to dispatch. He also testified that, when responding

to a burglary call in which he had not yet entered the premises, for his safety and

that of the person inside, his training mandated taking a position of cover and

concealment rather than entering alone. In a burglary situation in which he had

already entered the premises but had the option of safely repositioning to cover and

concealment, he would likewise do so rather than shooting the intruder. He also

testified that, if there were a burglar or other intruder in his home, he would allow

that person the opportunity to surrender. He explained that in intense situations

where another person posed a threat, he focused on the suspect’s hands to determine

whether the suspect held an item that could cause bodily harm, and in those situations

it was important to determine where the suspect’s hands were.

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 Other evidence also supports the jury’s rejection of self-defense. This

evidence includes the conflicting evidence as to whether Jean was seated or rising

from a sitting position rather than standing and moving quickly towards Guyger; the

conflicting evidence as to whether Guyger demanded that Jean show his hands3; the

absence of any pockets in which Jean’s hands might have been concealed; the

ambiguous nature of Jean’s “hey, hey, hey” exclamation; and the lack of evidence

suggesting Jean held a weapon. See Braughton, 569 S.W.3d at 610 (jury could

rationally have rejected appellant’s “reason to believe” decedent was committing or

attempting to commit robbery or murder given conflicting evidence and jury’s

resolution of factual disputes); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim.

App. 1991) (concluding a rational jury could have found beyond a reasonable doubt

appellant did not act in self-defense where the victim was unarmed when he lunged

at appellant, appellant said at the scene that the shooting occurred accidentally, and

the evidence showed hammer on weapon had to be fully cocked to fire); Sharp v.

State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury may choose to believe or

not believe the witnesses, or any portion of their testimony). On this record, we

conclude the evidence was legally sufficient to support the jury’s rejection of

3
Although Guyger testified she told Jean to show his hands and he did not show his hands, other witnesses
including Bharathamarnath Madamanchi, Taydra Jones, and Whitney Hughes testified they heard two shots
but did not hear Guyger tell Jean to show his hands.

18
 Guyger’s assertion of self-defense. We overrule Guyger’s first issue. In reaching

this conclusion, we need not address the State’s cross-point.4

II. Criminally Negligent Homicide

In her second issue, Guyger contends that we should acquit her of murder,

convict her of criminally negligent homicide, and remand the case for a new

punishment hearing. She asserts that if she was not reasonable in her mistake that

she was in her own apartment and also not reasonable in believing deadly force was

immediately necessary to protect herself from Jean, then she was guilty only of

criminal negligence.

Guyger’s mental state with respect to the result of her conduct—Jean’s

death—determines the applicable offense. See Schroeder v. State, 123 S.W.3d 398,

400 (Tex. Crim. App. 2003) (“Murder is a ‘result of conduct’ offense, which means

that the culpable mental state relates to the result of the conduct, i.e., the causing of

the death.”). Awareness that certain conduct will create a substantial and

unjustifiable risk that death will result gives rise to manslaughter. TEX. PEN. CODE

§§ 6.03(c), 19.04; Schroeder, 123 S.W.3d at 400–01. Lack of such awareness

differentiates manslaughter from criminally negligent homicide. Harris v. State, No.

4
See TEX. R. APP. P. 47.1; see also Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex. Crim. App. 2012) (“[i]f
the defendant is granted no relief and no retrial will therefore be held, the State will not be able to benefit
from a favorable decision on its cross-points of error.”); Seghelmeble v. State, 390 S.W.3d 576, 582–83
(Tex. App.—Dallas 2012, pet. ref’d) (appellate court may not address cross-issue “in which the State merely
requests a directive as to language or reasoning of the lower court that does not impact the ultimate
decision.”) (quoting Pfeiffer, 363 S.W.3d at 601 n.32).

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05-96-01531-CR, 1999 WL 562708, at *6 (Tex. App.—Dallas Aug. 3, 1999, pet.

ref’d) (op. on reh’g) (not designated for publication) (“Either the actor is aware that

his conduct bears a risk of unintended death, or he is not so aware. The presence or

absence of that awareness determines whether the offense is manslaughter or

criminally negligent homicide.”). Failing to perceive that certain conduct creates a

substantial and unjustifiable risk of death through a gross deviation from the

reasonable standard of care exercised by ordinary people gives rise to criminally

negligent homicide. Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App.

2012); TEX. PEN. CODE §§ 6.03(d), 19.05. The conscious objective or desire to cause

death, or awareness that certain conduct is reasonably certain to cause death, gives

rise to murder. TEX. PEN. CODE §§ 6.03(a), 19.02(b); Lugo-Lugo v. State, 650

S.W.2d 72, 81 (Tex. Crim. App. 1983).

Rather than her intent to cause the result of her conduct—her intent to kill

Jean by shooting him—Guyger relies on certain circumstances leading to her

conduct. In asserting she did not consciously create or perceive the risk that Jean

would be killed, she points to the confusing layout of the apartment complex, the

poor assembly or construction of the apartment doors which enabled them to remain

unlocked even if closed, and her failure to notice the “clues”5 in the hallway

5
Guyger identifies these clues as a large vase in the hallway, Jean’s red doormat, and the apartment numbers
to the right of the door. Although, as noted above, such circumstances are irrelevant to Guyger’s mental

20
indicating she was on the wrong floor. But her perception of circumstances creating

the series of events here has no bearing on whether she acted intentionally or

knowingly or instead acted with criminal negligence. The evidence is undisputed

that Guyger intended the result of her conduct or acted knowingly with respect to

the result of her conduct because she testified she intended to shoot and kill Jean.

That she was mistaken as to Jean’s status as a resident in his own apartment or a

burglar in hers does not change her mental state from intentional or knowing to

criminally negligent. We decline to rely on Guyger’s misperception of the

circumstances leading to her mistaken beliefs as a basis to reform the jury’s verdict

in light of the direct evidence of her intent to kill. Compare Salinas v. State, 644

S.W.2d 744, 746 (Tex. Crim. App. [Panel Op.] 1983) (presuming “appellant was

aware of the risk of injury or death by having a loaded, cocked pistol and exhibiting

it”); see also, e.g., Britain v. State, 412 S.W.3d 518, 521 (Tex. Crim. App. 2013)

(“appellate court should not render a judgment of conviction for a lesser-included

offense unless there is proof beyond a reasonable doubt of all elements of the lesser-

included offense.”). As previously discussed, legally sufficient evidence supports

the jury’s verdict finding Guyger guilty of murder. We overrule her second issue.

state, we observe nonetheless that Guyger omits discussion of additional circumstances, for instance
choosing not to retreat, take cover, and call for backup, which are of equal weight to the clues she discusses.

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 We overrule Guyger’s appellate issues. Accordingly, we affirm the trial

court’s judgment.

/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

191236F.U05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

AMBER RENEE GUYGER, On Appeal from the 204th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F18-00737-Q.
No. 05-19-01236-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Partida-
THE STATE OF TEXAS, Appellee Kipness participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered August 5, 2021

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