Reversed and Remanded and Majority and Dissenting Opinions filed
September 2, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00351-CR
JOSE JUAN CHAVEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. 18DCR0269
DISSENTING OPINION
Because the majority ignores well-settled principles of law regarding the
submission of lesser-included offenses, I respectfully dissent.
The majority focuses on the jury’s ability to disbelieve some of Flores’s
testimony, but the majority points to no affirmative evidence directly germane to
appellant’s lack of an intent to kill. See, e.g., Cavazos v. State, 382 S.W.3d 377,
385 (Tex. Crim. App. 2012) (noting there must be “affirmative evidence” that is
“directly germane” to the lesser-included offense that both raises the lesser-
included offense and rebuts or negates an element of the greater offense); see also
Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App. 2016) (“[I]t 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
is warranted.”).
Evidence that Flores pulled the trigger and that it was another accomplice’s
“idea” to kill the decedents is not enough to negate appellant’s intent to kill under
the law of parties. See Ex parte Thompson, 179 S.W.3d 549, 559 (Tex. Crim. App.
2005) (holding that the applicant was not entitled to an instruction on felony
murder as a lesser-included offense of capital murder, under the law of parties,
because the applicant’s “description of [an accomplice’s] actions and intent . . . is
not evidence that affirmatively shows that applicant had no intent to kill”).
Similarly, evidence that appellant and his accomplices did not intend to kill the
decedents at the inception of the kidnapping does not negate evidence that he later
formed the intent to kill, as Flores testified. See Rousseau v. State, 855 S.W.2d
666, 674–75 (Tex. Crim. App. 1993) (holding that the defendant was not entitled to
an instruction on felony murder as a lesser-included offense of capital murder
despite evidence that the defendant did not intend to kill the decedent at the
inception of the robbery).
Other than appellant’s blanket denial of culpability, which the majority
acknowledges is insufficient for an instruction on lesser-included offenses, there is
no evidence that appellant did not intend to kill the decedents. Considering all of
the evidence, it is mere speculation that, because Flores said another accomplice
had the “idea” to kill the decedents and Flores pulled the trigger, appellant did not
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also form an intent to kill. See Ex parte Thompson, 179 S.W.3d at 559; see also
Cavazos, 382 S.W.3d at 385 (speculation insufficient); Salinas v. State, 163
S.W.3d 734, 737–38, 741–42 (Tex. Crim. App. 2005) (defendant not entitled to
felony murder instruction as lesser-included offense of capital murder despite
evidence that it was the accomplice’s idea to rob the decedent, the accomplice who
took the decedent’s money, and the accomplice who pulled the trigger). This
evidence does not negate or contradict Flores’s testimony that appellant
participated in the agreement to murder the decedents and told Flores where to do
it.
I would affirm the judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Bourliot, and Spain. (Bourliot, J., majority).
Publish — TEX. R. APP. P. 47.2(b).
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Jose Juan Chavez v. the State of Texas
Combined Opinion