COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

MARCO TORRES , Appellant, V. THE STATE OF TEXAS, Appellee

. § § § § § § § No. 08-09-00165- CR

Appea l from the 243rd District Court of El Paso County , Texas (TC# 20080D01730)

O P I N I O N Marc o Torre s appea ls his conviction for fe lony murder. A

ppellant was se ntence d to 8 y ear s’ conf

inement. He r aises two issues: first, that he wa s improperly convicted of

felony murder be cause the under lying f elony was a g g rava

ted assault; sec ond, that the trial cour t erre d by ref using to c harg e the jury

on the lesser -included of fense of manslaughter. DuringJ uly

2006, Appellant wa s the business manag er of a Sam’s Club store in El Paso, Texas. He bef

riende d another

worke r at Sam’s named J uan He rnande z (“J ohnny ”). O n J uly 10, 2006, the two men dec ided to have a cookout at Appe llant’s apar tment. Over the course of

sever al hours, the two men c onsumed a sig nificant amount of alcohol. At ar ound 1:30 a.m., afte r arguing f or some time, Appellant took a ha ndgun from his room and pointed it at Johnny

. Moments later, Appe llant pulled the trig g er a nd a sing le shot hit J ohnny in the chest, killing him. On April 16, 2008, Appe llant was indicted for one count of

murder. T he State alleg ed that while in the cour se of c ommitt ing the felony offe nse of a g g ravated assault by intentionally

or knowing ly

threateningJ ohnny

with immi nent bodily

injury , Appellant committed an a ct clea rlydang erous to human life , “to wit: discharg e a f irea rm that ca used the de ath of [J ohnny ].” A jury found Appe llant guilty

of murder

and asse ssed his punishment at confineme nt for a pe riod of eig ht y ear s. In I ssue One, A

ppellant asser

ts that his conviction for fe lony murder unde r Section 19.02(b)( 3) of the T exas Penal Code, must be reve rsed a s a violation of due pr ocess be cause the underlying f

elony , ag g ravated assault, wa s the same a ct that killed the victim. As the State points out, however , this argument was ne ver r aised in the trial c ourt. To pre serve a complain f or appellate revie w it is the Appellant’s burde n to cre ate a rec ord which de monstrated that the complaint was made to the trial court by a timely reque st, objection, or motion, and that the trial court rule d on the same. T E X .R.A P P .P. 33.1(a)( 1); Layton v. State , 280 S.W .3d 235, 238-39 (Tex.Crim.App. 2009). Be cause there is no recor d of Appe llant’s complaint in I ssue One be ing raised in the tr ial court, I ssue One must be ove rruled f or lac k of pre servation. See Layton , 280 S.W .3d at 239. In I ssue Two, Appe llant contends the trial c ourt committed reve rsible er ror by ref using his request that the jury

be instructed on the lesser- included off ense of manslaug hter. The State responds by

arguing that Appellant’s arg ument must be overr uled bec ause ma

nslaughter is not a lesser- included off

ense of felony murder. Whether or not a pa

rticular of fense is properly

classified a s a lesser -included of the char g ed off

ense is a que stion of law. Hall v. State , 225 S.W .3d 524, 535 (Tex.Crim.App. 2007). The Te x as Code of Criminal Proce dure pr ovides that an off ense is a “ lesser- included off ense” if it falls withing at lea st one of the f ollowing c ateg ories: (1) the lesser of fense is established by proof of the same or

less than all the fa cts requir ed to established the c ommissi on of the off ense -2-char g ed; (2) the lesser of fense differ s from the off ense c harg ed only

in the respe ct that a less serious injury

or risk of injury

to the same pe rson, prope rty , or public intere st established its commission; (3) the lesser of fense differ s from the c harg ed off ense only in the respe ct that a less culpable me ntal state is sufficie nt to establish its commission; or (4) the lesser offe nse consists of an attempt to commit the char g ed off ense, or another included off

ense. SeeT E X .C O D E C R I M .P R O C .AN N . art. 37.09 (V ernon 2006) . I f the a nswer to this first inquiry is “y es,” the court must also determine whe ther ther e is some evidenc e in the re cord, “ that would permit a jury rationally to find that if [Appellant] is guilty , he is guilty only of the lesse r-include d offe nse.” Hall , 225 S.W .3d at 536. Appellant wa s indicted and tried f or the off ense of felony murder a s follows: (1) Appe llant; (2) intentionally or knowing ly ; (3) thre atene d J uan He rnande z with i mminent bodily injury ; (4) used or

exhibi ted a de adly

wea pon, to wit: a firea

rm; (5) a nd in the course of and in furthe ranc e of the commission of the offe nse (a g g ravated assault); (6) committed an ac t clea rly dang erous to human life , to wit: dis char g e a f irea rm; (7) that c aused the death of J uan Her nandez. The e lements of the of

fense of manslaughter a

re a s follows: (1) the de fenda nt; (2)

rec klessly ; (3) ca

used the de ath of a

nd individual. T E X .P E N A L C O D E AN N . § 19.04(a) (Ve rnon 2003). As a c omparison of the two of fense s indicates, fe lony

murder, unlike ma

nslaug hter, doe s not require a culpa

ble mental state. SeeT E X .P E N A L C O D E AN N . § 19.04; see also Lomax v . State , 233 S.W .3d 302, 306-07 (Te x .Crim.App. 2007)(noting , “the ve ry nature of the fe lony -murder rule is that there is no culpable menta l state ‘for the ac t of murder .’”) . Be cause manslaughter
-3-require s proof of a culpable me ntal state and f elony murder doe s not, the elements of the reque sted lesser- included off ense a re not e stablished by

proof of the same or

less than all of the fac ts require d to establish the char g ed off ense. See Lomax , 233 S.W .3d at 307-08. Ac cording ly , Appellant’s a

rgument fails under

the first step of the Article 37.09 a naly sis, and there is no need to addre ss the second pa

rt of the a naly sis. SeeT E X .C O D E C R I M .P R O C .AN N . art. 37.09; Hall , 225 S.W .3d at 536. Acc ording ly , I ssue Two is over ruled. We affir m the trial court’ s judgme nt. September 1, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Chew, C.J ., McClure, a

nd Rivera, JJ

. (Do Not Publish)

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