Affirmed and Memorandum Opinion filed February 10, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-01037-CR

PATRICK SHARARD GUILLORY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1340306

M E M O R A N D U M O P I N I O N

In this appeal from a conviction for capital murder, we consider whether the 

evidence is legally sufficient to support the conviction, whether the trial court erred 

by declining a request for multiple jury instructions, and whether the trial court 

erred by overruling an objection to an improper closing statement. We conclude 

that the evidence is sufficient and that there is no reversible error as to each 

remaining issue. We therefore affirm the trial court’s judgment.
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BACKGROUND

Raul Amaro, the complainant in this case, died from a single gunshot wound 

to the chest. The shooting happened just outside of a convenience store in 

southwest Houston. Authorities came to suspect that appellant was the shooter, and 

that he had murdered Amaro during the course of a robbery.

The case against appellant was built on circumstantial evidence. One key 

witness was Rogelio Vasquez, who testified that he had driven two men to the 

convenience store on the night of the shooting. Vasquez said that he picked the two 

men up after they had flagged him down on the side of the road. Vasquez 

recognized one of the men as Tyreon Young, who was the relative of a former 

classmate. Young climbed into the front passenger seat, and the other man sat in 

the back. Vasquez did not know the backseat passenger, and at trial, Vasquez could 

not offer any testimony as to whether the backseat passenger was appellant. 

(Darius Rose, another witness whose testimony is more fully discussed below, 

would later identify appellant as Vasquez’s backseat passenger.)

Vasquez offered to take his two passengers to the convenience store, where 

he intended to buy a beer. On the way there, Young asked Vasquez where he could 

“hit a lick,” which is street slang for robbing someone. Vasquez testified that the 

backseat passenger added, “Yeah, we need some money.” The backseat passenger 

pulled a gun out of his jacket, which Vasquez believed to be a revolver. Vasquez 

told the men not to rob anyone at the convenience store because his dad would 

often drink there and he knew the regular customers. The men responded that they 

would try to rob someone at a nearby restaurant instead.

When they arrived at the convenience store, Vasquez and his passengers 

parted ways. Vasquez opened the trunk of his car to inspect his stereo system, 

which he thought was malfunctioning. Vasquez saw his passengers approach Rose, 
3

who had just exited a car in a nearby parking space. After a short while, Vasquez 

testified that he heard four shots rings out in the vicinity. Vasquez looked across 

the parking lot in the direction of the shooting and saw a portion of the gunman’s 

arm, but not the rest of his body, which was apparently obstructed from view.

Miguel Frias was pumping gas when the shots were fired. He looked up and 

saw Amaro run out from the side of the convenience store and then collapse on the 

ground. Frias approached Amaro, who said that “two black guys [had] robbed 

him.” Both Young and appellant are African Americans, but Frias saw neither of 

them on the night of the murder.

Alex Flores and Ivan Martinez were drinking with Amaro shortly before the 

shooting occurred. Neither man testified at trial, but their witness statements were 

retold through a sheriff’s deputy who had interviewed them on the night of the 

incident. According to the deputy, Flores and Martinez said that two robbers came 

from behind the convenience store and attacked Amaro, who tried to fight back. 

The robbers reportedly knocked Amaro down, then dragged him to a telephone 

pole. Martinez tried to intervene, but he and Flores ran away from the fight

because one of the robbers began shooting at them.

James Hanson arrived at the convenience store moments after Vasquez. 

Hanson and Vasquez were familiar with each other, and they exchanged greetings 

as Vasquez was inspecting his stereo system. When Hanson turned to head inside 

the convenience store, he observed Young, another familiar face, fighting with an 

Hispanic male around the corner. Hanson testified that Young pushed the other

man down, then Young lifted his hands and looked around to see if anyone wanted 

to fight back. Hanson claimed that he then saw another man’s hand extend from 

behind the corner of the building, holding a gun. Hanson ran away at the sight of 

the gun. He heard shots fired but he did not see the shooter.
4

Rose was a passenger in Hanson’s car. When he arrived at the convenience 

store, Rose testified that he saw Vasquez, who had driven there with two male 

passengers. Rose identified the two passengers as Young and appellant, both of 

whom he had known previously. Rose spoke briefly with Young and appellant, and 

then they left in different directions.

A security camera captured the meeting between the three men, but the 

resolution was not high and the figures were mostly grainy. According to Rose, the 

surveillance footage showed Young and appellant heading towards the rear 

exterior of the convenience store, away from any public entrance. Their path could 

have taken them around to the location where the shooting occurred, but there was 

no footage confirming that they had taken that circuitous route.

Before the shots were fired, Rose testified that he saw Young fighting with 

Flores across the parking lot, on the opposite side of the convenience store where 

Vasquez and Hanson had parked. As with every other witness, Rose testified that 

he heard gunfire, but he did not see the shooter.

The medical examiner found muzzle abrasions and soot in Amaro’s wound, 

indicating that he had been shot at point-blank range. The medical examiner also 

found a bullet fragment, which a forensics investigator determined was consistent 

with a revolver round. Another investigator opined that a revolver could have been 

used in the murder because no bullet casings were found at the crime scene. The 

murder weapon itself was not recovered.

SUFFICIENCY OF THE EVIDENCE

To obtain a conviction for capital murder, the State was required to prove

that appellant murdered Amaro and that the murder was intentionally committed 

during the course of a robbery. See Tex. Penal Code § 19.03(a)(2). Appellant 
5

contends that his conviction should be set aside because there is no evidence that 

he murdered Amaro or that a robbery ever took place.

When reviewing the legal sufficiency of the evidence, we examine all of the 

evidence in the light most favorable to the verdict and determine whether a rational 

trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 

2013). The evidence is insufficient when the record contains no evidence, or 

merely a “modicum” of evidence, probative of an element of the offense. See 

Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

Although we consider everything presented at trial, we do not reevaluate the 

weight and credibility of the evidence or substitute our judgment for that of the fact 

finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). 

Because the jury is the sole judge of the credibility of witnesses and of the weight 

given to their testimony, any conflicts or inconsistencies in the evidence are 

resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. 

Crim. App. 2000). Our review includes both properly and improperly admitted 

evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We 

also consider both direct and circumstantial evidence, as well as any reasonable 

inferences that may be drawn from the evidence. Id. Circumstantial evidence is as 

probative as direct evidence in establishing the guilt of an actor, and circumstantial 

evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d 

9, 13 (Tex. Crim. App. 2007).

Even though there was no eyewitness testimony regarding the identity of 

the shooter, a rational jury could have found beyond a reasonable doubt that 

appellant was the person who had murdered Amaro. The undisputed evidence 

showed that three Hispanic men were attacked outside of a convenience store by 
6

two African-American men. The record supported a finding that Young was one of 

the attackers. Two witnesses (Hanson and Rose) testified that they each saw Young 

fighting with one of the Hispanic men in the moments before the shooting.

Another witness (Vasquez) testified that he had driven Young to the 

convenience store with a second African-American man, and during the commute, 

the two passengers had discussed the possibility of robbing someone. Vasquez 

testified that the backseat passenger had exhibited a firearm that appeared to be a 

revolver, which could have been used as the murder weapon. Although Vasquez 

could not confirm that appellant was his backseat passenger, Rose testified that he 

affirmatively saw appellant exiting Vasquez’s car with Young when they both 

arrived at the convenience store. The jury could have reasonably determined that 

appellant participated in the robbery with Young, and that appellant shot Amaro 

with the revolver witnessed by Vasquez.

Appellant contends that there is no evidence that the murder was committed 

during the course of a robbery because the record showed that a large amount of 

money was still found in Amaro’s wallet. Appellant appears to suggest that a 

completed theft is required before a robbery can occur, but that is mistaken; an 

attempted theft is sufficient. See Tex. Penal Code §§ 29.01(1), 29.02; see also id. 

§ 19.03(a)(2) (a person commits a capital murder if he intentionally commits a 

murder “in the course of committing or attempting to commit . . . robbery”).

Here, Vasquez testified that Young and the backseat passenger had 

expressed a desire to “hit a lick,” or rob someone. Hanson and Rose witnessed 

Young physically attacking an Hispanic male, which is consistent with an attempt 

to commit a theft. Amaro also said in his final moments that “two black guys [had] 

robbed him.” From this evidence, the jury could have reasonably determined that 

Amaro’s murder was committed during the course of a robbery.
7

The jury could have also found that the murder was intentional. The medical 

examiner testified that Amaro died from a single gunshot, which had been fired 

into the chest at point-blank range. This evidence supported a finding that appellant 

fired the shot with the deliberate intent to kill. See Godsey v. State, 719 S.W.2d 

578, 580–81 (Tex. Crim. App. 1986) (“The specific intent to kill may be inferred 

from the use of a deadly weapon, unless in the manner of its use it is reasonably 

apparent that death or serious bodily injury could not result.” (citations omitted));

Nickerson v. State, 312 S.W.3d 250, 262 (Tex. App.—Houston [14th Dist.] 2010, 

pet. ref’d) (a “point-blank shot” supports a finding that the shot was intentional).

Viewing the record in the light most favorable to the verdict, we conclude 

that there is sufficient evidence from which a jury could find every element of the 

offense beyond a reasonable doubt.

ACCOMPLICE-WITNESS INSTRUCTION

Appellant argues in his next issue that the trial court reversibly erred by 

refusing his request to give an accomplice-witness instruction. Appellant contends 

that Vasquez was an accomplice, and that the instruction was therefore warranted.

We review a complaint of jury-charge error under a two-step process, 

considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. 

Crim. App. 2005). If error does exist, we then analyze that error for harm under the 

procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 

1984).

An accomplice is someone who participates with the defendant before, 

during, or after the commission of a crime, and who acts with a culpable mental 

state. See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Under 

Texas law, a conviction cannot be had on the testimony of an accomplice unless 
8

the testimony is corroborated by other evidence tending to connect the defendant 

with the offense committed. See Tex. Code Crim. Proc. art. 38.14. The 

corroborating evidence is not sufficient if it merely shows the commission of the 

offense. Id.

To be considered an accomplice, the person’s participation with the 

defendant must have involved some affirmative act that promotes the commission 

of the offense with which the defendant is charged. See Druery, 225 S.W.3d at 

498. A person is not an accomplice witness merely because the person knew of the 

offense and did not disclose it. Id. Furthermore, the person’s presence at the crime 

scene does not make the person an accomplice. Id. A person is only an accomplice

if the person could be prosecuted for the offense with which the defendant is 

charged, or a lesser-included offense of that charge. Id.

A trial court should instruct the jury that a person is an accomplice witness 

as a matter of law if there is no doubt that the person is an accomplice. Id. This 

standard is met if the person has been charged with the same offense as the 

defendant or if the evidence clearly shows that the person could have been so 

charged. Id. If there is a question whether the person is an accomplice, the court 

should allow the jury to decide whether the person is an accomplice as a matter of 

fact. Id. at 498–99. In either case, there must be some evidence of an affirmative 

act on the part of the person to assist in the commission of the charged offense 

before an accomplice-witness instruction is required. Id. at 499.

Appellant argues that Vasquez was an accomplice because he drove his two 

male passengers to the convenience store after learning of their plan to commit a 

robbery. Assuming without deciding that this evidence raised a question of fact as 

to whether Vasquez was an accomplice, we must determine whether the trial 

court’s error in refusing to give an accomplice-witness instruction was harmful. 
9

An accomplice-witness instruction does not say that the jury should be 

skeptical of accomplice-witness testimony. See Herron v. State, 86 S.W.3d 621, 

632 (Tex. Crim. App. 2002). Nor does it tell the jury that such testimony must 

receive less weight than other evidence. Id. The instruction merely informs the jury 

that it cannot use the accomplice-witness testimony unless there is also some nonaccomplice evidence connecting the defendant to the offense. Id. Once it is 

determined that such non-accomplice evidence exists, the purpose of the 

instruction is fulfilled, and the instruction plays no further role in the jury’s 

decision-making. Id. Therefore, non-accomplice evidence can render harmless a 

failure to submit an accomplice-witness instruction by fulfilling the purpose an 

accomplice-witness instruction is designed to serve. Id.

A harm analysis for the omission of an accomplice-witness instruction is 

supposed to be flexible, taking into account the existence and strength of any nonaccomplice evidence and the applicable standard of harm. Id. We examine the 

strength of non-accomplice witness testimony by its reliability or believability, and 

by the strength of its tendency to connect the defendant to the crime. Id. The 

reliability inquiry may be satisfied if there is non-accomplice witness evidence, 

and there is no rational and articulable basis for disregarding the evidence or 

finding that it fails to connect the defendant to the offense. Id. at 633.

The applicable standard of harm depends upon whether the defendant 

preserved error by bringing the improper omission to the trial court’s attention. Id.

at 632. When the defendant has failed to preserve error, he must show egregious 

harm. Id. But when, as here, the error is properly preserved, a reversal is required if 

just “some harm” is shown. Id.

Error is harmless under the “some harm” standard when there is a substantial 

amount of non-accomplice evidence and the evidence of the witness’s accomplice 
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status was tenuous, or barely enough to support submission of an instruction that 

the witness was an accomplice as a matter of fact. Id. at 633 (citing Medina v. 

State, 7 S.W.3d 633 (Tex. Crim. App. 1999)). The Court of Criminal Appeals has 

also held that error is harmless when the corroborating evidence is so strong that 

“it becomes implausible that a jury would fail to find that it tends to connect the 

accused to the commission of the charged offense.” See Casanova v. State, 383 

S.W.3d 530, 539–40 (Tex. Crim. App. 2012). At that level of strength, a reviewing 

court may safely conclude that the resultant harm is “purely theoretical” because, if 

the trial court had given the instruction, the jury would have almost certainly found 

that the testimony of the accomplice witness was corroborated. Id.

Turning first to the non-accomplice testimony, we note that there is reliable 

evidence connecting appellant to the commission of a capital murder. The jury 

heard through the testimony of a sheriff’s deputy that Flores and Martinez had 

been drinking with Amaro in the moments before the shooting. Flores and 

Martinez reported that two African-American men came from behind the 

convenience store and attacked Amaro. Two other witnesses, Hanson and Rose,

established that Young was one of the attackers. Although neither witness saw the 

face of the second attacker, Hanson affirmatively testified that the second attacker 

had a gun and that Young could not have been the shooter.

The identity of the second attacker was the only real dispute at trial, and 

Rose’s testimony strongly suggested that the second attacker was appellant. Rose 

established that Young and appellant had arrived together at the convenience store, 

having both been passengers in Vasquez’s car. Video surveillance captured a brief 

meeting in the parking lot between Rose, Young, and appellant. The surveillance 

footage also showed Young and appellant walking away from Rose towards the 

rear exterior of the convenience store, where their path could have taken them to 
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the area where Amaro, Flores, and Martinez had been drinking. The surveillance 

footage did not reveal any other person in the vicinity of Young and appellant, and 

there was no testimony from a non-accomplice witness that a person other than 

appellant had intervened or assisted Young. Considering that the shooting 

happened shortly after Young and appellant had left the view of the security

camera, the evidence strongly supported a finding that appellant attacked Amaro 

with Young, and that appellant was the one who fired the gun.

Turning next to the evidence supporting an accomplice-witness instruction, 

we note that there is much less evidence showing that Vasquez acted with a 

culpable mental state. There is no affirmative evidence that Vasquez knew about 

the criminal intentions of his passengers when he initially encountered them on the 

side of the road. Vasquez testified that he learned of their plan to commit a robbery 

during the commute, and when he acquired this knowledge, Vasquez pleaded with 

his passengers to not commit a robbery at the convenience store because he knew 

many of the people who frequented there. The passengers responded by assuring 

Vasquez that they would rob someone at a different location instead. There is no 

evidence that Vasquez agreed to drive the passengers to that different location, or 

that he would share in the spoils of any robbery that the passengers actually 

committed.

We suppose that a jury could have rejected Vasquez’s testimony and 

inferred an intent to assist in the commission of a robbery, but such an inference 

could be made only on the basis that Vasquez continued to drive his passengers to 

the convenience store after learning of their plan to commit a robbery. If, in the 

eyes of the jury, that inference were unreasonable, then Vasquez was clearly not an 

accomplice. See Kunkle v. State, 771 S.W.2d 435, 438–41 (Tex. Crim. App. 1986) 

(a witness was not an accomplice, despite his knowledge of a plan to commit a 
12

robbery, where the witness was only a passenger in the car and he did nothing to 

assist or encourage his group in the commission of the robbery); Moore v. State, 

984 S.W.2d 783, 788 (Tex. App.—Waco 1999, no pet.) (a witness who drove the 

defendant to the scene of a robbery was not an accomplice where the evidence 

showed that the witness had no prior knowledge of the defendant’s plan to commit 

the robbery); cf. Gross v. State, 380 S.W.3d 181, 188–89 (Tex. Crim. App. 2012) 

(a driver was not criminally responsible as a party to murder where there was no 

evidence that the driver assisted or encouraged his passenger to kill a third party 

following a roadside argument).

During the trial, Hanson testified that he had a “split second” look of the 

shooter, who appeared to be wearing “a red jacket maybe or red sleeve.” Rose, 

whose testimony suggested that appellant was the shooter, testified on the other 

hand that appellant was dressed entirely in black. We are not persuaded that 

Hanson’s testimony provides a rational and articulable basis for disregarding 

Rose’s corroborating testimony. Hanson’s statement regarding the color of the 

shooter’s clothing was equivocal, and it did not refute Rose’s testimony that 

appellant was in the company of Young, the other suspected attacker. Rose’s 

testimony still had a tendency to connect appellant to the commission of the 

charged offense.

Moreover, Rose was the only witness who identified appellant at trial.

Vasquez never confirmed that appellant was the backseat passenger in his car, nor 

did he testify that he assisted appellant as either a principal or a party to the 

offense. Without testimony of that sort, Vasquez was unlike the typical accomplice 

witness whose testimony directly incriminates the accused. Indeed, even if there 

were no accomplice-witness rule, a conviction could not have been had on 

Vasquez’s testimony alone. Rose was essential to the prosecution because he 
13

placed appellant at the scene with the other suspected attacker, and he was the only 

witness who could explain the figures on the grainy surveillance footage.

The jury was apparently persuaded by the strength of Rose’s testimony. 

Having considered the strength of that testimony ourselves and the relative 

weakness of Vasquez’s status as an accomplice, we conclude that if an accomplicewitness instruction had been given, then the jury would have certainly found that 

Vasquez’s testimony was corroborated. Any error in omitting the instruction was 

therefore harmless. See Casanova, 383 S.W.3d at 539–40.

FELONY MURDER

In his next issue, appellant argues that the trial court abused its discretion by 

refusing to instruct the jury on the lesser-included offense of felony murder.

We apply a two-part test when determining whether a defendant is entitled 

to an instruction on a lesser-included offense. See Sweed v. State, 351 S.W.3d 63, 

67 (Tex. Crim. App. 2011). We first consider whether the lesser-included offense 

is included within the proof necessary to establish the charged offense. See 

McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). This inquiry 

requires that we compare the elements of the greater offense as pleaded in the

indictment with the statutory elements of the lesser offense. See Ex parte Amador, 

326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010). If the elements of the lesser 

offense cannot be established by proof of the same or less than all of the facts 

required to establish the commission of the greater offense, then the lesser offense 

is not a lesser-included offense, and our analysis ends there. See Hall v. State, 225 

S.W.3d 524, 536–37 (Tex. Crim. App. 2007).

If the lesser offense is actually a lesser-included offense, then we examine 

whether there is some evidence from which a rational jury could acquit the 
14

defendant of the charged offense but convict him of the lesser offense. See Guzman 

v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006). The evidence must 

establish the lesser offense as “a valid rational alternative to the charged offense.” 

See Segundo v. State, 270 S.W.3d 79, 90–91 (Tex. Crim. App. 2008). We consider

all of the evidence presented at trial, regardless of its credibility or whether it is 

produced by the State or the defendant. See Hayward v. State, 158 S.W.3d 476, 

478–79 (Tex. Crim. App. 2005); Thompson v. State, 521 S.W.2d 621, 624 (Tex. 

Crim. App. 1974).

A person commits a capital murder if he intentionally commits a murder in 

the course of committing or attempting to commit a felony. See Tex. Penal Code 

§ 19.03(a)(2). A person commits a felony murder if he commits or attempts to 

commit a felony, other than manslaughter, and in the course of and in furtherance 

of the commission or attempt, he commits or attempts to commit an act clearly 

dangerous to human life that causes the death of an individual. Id. § 19.02(b)(3). 

The only distinguishing element between these two offense is the intent to kill: 

capital murder requires an intentional killing, whereas felony murder does not. See 

Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). Because an 

offense may be a lesser-included offense if the only difference from the offense 

charged is that a less culpable mental state suffices to establish its commission, we 

conclude that felony murder is a lesser-included offense of capital murder. See 

Tex. Code Crim. Proc. art. 37.09(3); Threadgill v. State, 146 S.W.3d 654, 665 

(Tex. Crim. App. 2004). Therefore, the first part of the test is satisfied.

Turning to the second part of the test, we must now consider whether there is 

any affirmative evidence from which a rational jury could have found that 

appellant had the intent to commit a robbery, but not the intent to cause the death 

of his victim. See Fuentes v. State, 991 S.W.2d 267, 272–73 (Tex. Crim. App. 
15

1999). Contending that the record contains such evidence, appellant refers to 

testimony that Amaro was fighting with the robbers in the moments before he was 

shot. Appellant opines that, during the fight, there may have been a struggle over 

the gun, causing the gun to accidentally discharge.

Appellant’s argument relies entirely on conjecture, which is insufficient to 

support the submission of a lesser-included offense instruction. See Wortham v. 

State, 412 S.W.3d 552, 558 (Tex. Crim. App. 2013) (holding that a defendant is 

not entitled to a lesser-included offense if the only evidence offered in support of 

the lesser charge is “mere speculation”); Hooper v. State, 214 S.W.3d 9, 16 (Tex. 

Crim. App. 2007) (“Speculation is mere theorizing or guessing about the possible 

meaning of facts and evidence presented.”). There must be affirmative evidence

showing that appellant did not intend to murder Amaro at the time the gun was 

fired. Compare Ross v. State, 861 S.W.2d 870, 872, 877 (Tex. Crim. App. 1992) 

(op. on reh’g) (holding that a defendant was entitled to an instruction on felony 

murder as a lesser-included offense of capital murder where the defendant 

affirmatively stated in his confession that his gun went off when he shoved his 

robbery victim), with Gonzalez v. State, 296 S.W.3d 620, 626–27 (Tex. App.—El 

Paso 2009, pet. ref’d) (holding that a “possibility” of an accidental discharge 

would not support an instruction on felony murder, without affirmative evidence 

showing that the shooting was unintentional). Appellant has not cited to any 

affirmative evidence in his brief.

The record reflects that Flores and Martinez were the only two individuals 

who witnessed the shooting, but neither of them testified at trial. Instead, they 

spoke with a sheriff’s deputy, who repeated their witness statements to the jury. 

According the deputy, Flores and Martinez saw Amaro fighting with his attackers 

in the moments before they shot him. However, there was no testimony, or even a 
16

suggestion, that Amaro had been fighting over possession of the gun, or that the 

gun had accidentally discharged during the struggle. We therefore conclude that 

there is no basis from which a jury could have rationally found that appellant 

intended to rob Amaro, but not murder him. See Adanandus v. State, 866 S.W.2d 

210, 230–31 (Tex. Crim. App. 1993) (holding that a felony murder charge was not 

warranted, despite evidence of a struggle between the defendant and the 

complainant, where there was “no evidence that the parties were at any point 

struggling over the gun”).

Appellant was not entitled to an instruction on the lesser-included offense of 

felony murder, and the trial court did not abuse its discretion by denying 

appellant’s request for the submission.

AGGRAVATED ASSAULT

In a related complaint, appellant argues that the trial court abused its 

discretion by refusing to instruct the jury on the lesser-included offense of 

aggravated assault. We review this complaint under the same standard as before, 

considering first whether aggravated assault is actually a lesser-included offense of 

capital murder, and then whether there is some evidence of probative value that 

supports the requested instruction.

The Court of Criminal Appeals has recognized that aggravated assault can 

be a lesser-included offense of capital murder. See Dowden v. State, 758 S.W.2d 

264, 269 (Tex. Crim. App. 1988); see also Landry v. State, 227 S.W.3d 380, 382 

(Tex. App.—Texarkana 2007, no pet.). Thus, the first part of the test is satisfied. 

To satisfy the second part, there must be some evidence that appellant 

intended to commit an aggravated assault, but not a murder. See Dowden, 758 

S.W.2d at 269. This burden is met if the record supports a finding that appellant 
17

only intended to cause serious bodily injury, and not death. See Tex. Penal Code 

§ 22.02(a) (defining aggravated assault); Tex. Code Crim. Proc. art. 37.09(2) 

(providing that an offense is a lesser-included offense if it can be established 

through a lesser showing of injury than the charged offense).

After independently poring through the record, we are not aware of any 

evidence that would support the submission of an instruction for aggravated 

assault. Appellant, likewise, has not cited to any evidence showing that, if he were 

one of the attackers, he only intended to cause serious bodily injury.

Appellant asserts in his brief, however, that “there was no evidence 

presented at trial to establish that the individual who shot and killed Raul Amaro 

did so with the specific intent to cause his death.” This argument is unpersuasive. It 

is not enough to argue that there was a lack of evidence to support the greater 

offense. There must instead be “affirmative evidence that both raises the lesserincluded offense and rebuts or negates an element of the greater offense.” See 

Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012); see also Dowden, 

758 S.W.2d at 269 (“A charge on the offense of aggravated assault would be 

required only if testimony was introduced from sources indicating a lack of intent 

on the part of appellant to kill the deceased.” (emphasis added)). Even if appellant 

could show that there was no evidence of an intent to kill—and he cannot, for the 

reasons explained above—there is still no affirmative evidence from which a jury 

could rationally conclude that appellant was guilty of only aggravated assault.

The trial court did not abuse its discretion by refusing to submit an 

instruction on the lesser-included offense of aggravated assault.
18

CLOSING STATEMENTS

The prosecutor made the following comments in her final summation: 

“Please, please, go back there. Do the right thing. Show the Amaro family that 

there is justice in our country. Show them that we are willing to do the right thing.” 

Appellant objected to these remarks as being outside the scope of permissible 

closing statements. The trial court overruled the objection, and on appeal, appellant 

contends that the trial court’s ruling was erroneous.

Permissible closing statements generally fall within one of four areas: (1) a 

summation of the evidence, (2) a reasonable deduction from the evidence, (3) an 

answer to argument of opposing counsel, or (4) a plea for law enforcement. See 

Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). A closing statement 

that exceeds these bounds is improper, and the trial court commits error when it 

(1) overrules an objection to the statement, (2) refuses an instruction to disregard 

the statement after sustaining an objection to the statement, or (3) fails to grant a 

mistrial necessitated because of the statement. See Watts v. State, 371 S.W.3d 448, 

457 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

Appellant contends that the prosecutor encouraged the jurors “to place 

themselves in the shoes of the victim’s family,” and that her closing statement was 

therefore improper. We disagree. The prosecutor did not ask the jurors to render a 

verdict based on what the Amaro family desired. Instead, she urged them to 

convict appellant because the evidence supported a verdict of guilty. The 

prosecutor’s closing statement qualified as a plea for law enforcement, and the trial 

court did not abuse its discretion by overruling the objection. Cf. Ayala v. State, 

267 S.W.3d 428, 435–36 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) 

(closing statement was a proper plea for law enforcement when the prosecutor said, 

“I hope you also think of Carmen, and her children, and Juan, and the justice 
19

they’re entitled to. . . . And on this day, when you’re in the 12 seats, I ask you to 

deliver them that justice. . . . Convict that man of the offense that he deserves to be 

convicted of, capital murder. There’s nothing, nothing else that is fair and right in 

this case.”); Smith v. State, 846 S.W.2d 515, 517–18 (Tex. App.—Houston [14th 

Dist.] 1993, pet. ref’d) (closing statement was a proper plea for law enforcement 

when the prosecutor encouraged the jury to “do the right thing” before invoking 

concerns about crime on the streets and the impact of that crime on members of the 

community).

CONCLUSION

Appellant’s five issues are overruled and the judgment of the trial court is 

affirmed.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

Do Not Publish — Tex. R. App. P. 47.2(b).