Reversed and Remanded and Majority and Dissenting Opinion s 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 Cham bers County, Texas Trial Co urt Cause N o. 18DCR0269

DISSENTING OPINION
Because the majority ignores well

- settled principles of law regarding the

su bmission of lesser

- in cluded offenses, I respectfully dissent.
The majority focuses on the jury ’ s ability to disb elieve some of Flor es ’ s testimony, but the majority points to no affirmative evidence directly german e to
ap pellant ’ s lack of an intent to kill

. See, e .g. , Cavazos v. S tate , 382 S.W.3d 377,
385 (Tex. Crim. App. 2012) (noting there must be “ affirmativ e ev i dence ” tha t is2

“ directly germane ” to the lesse r

- included offen s e 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 no t enou gh
tha t th e 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 f inder of fact to consider before an instruction on a lesser

- included o f fense
i s wa r ra nted. ” ).

Evidence tha t Flores pulled the trigger and that it was another a ccomplice ’ s

“ idea ” to kill the decedent s 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.
2 00 5) (holding that the applicant was not enti tled to a n instruction on felony
murder as a lesser

- included of fense of capital murder , under the law of par ties
, because the applicant ’ s “ description of [ an accomplice ’ s] actions and i n tent . . . i s
not eviden c e that affirmative ly shows that applicant had no intent to kill ” ). Similarly, evidence that a ppellant and his accomplices did not inten d to kill the
dece dents at the inception of the kidnapping does not negate evidence that he later
formed th e inte nt to k ill, as Flore s testified. See Rouss eau v. State , 855 S.W.2d 666, 67 4

– 75 (Tex. Crim. App. 1993) ( holding that the defendant was not entitle d to an instruction on felony murder as a lesser

- included offense of capital murder despite evidence tha t the defend a nt 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 le ss er

- included offense s , there is
no evidence that appell a nt did n ot intend to kill the decedents. Considering all of the evidence, i t is mere speculation that, because Flores said another accomplice
had the “ i dea ” to kill the decedents and Flores pulled the trigger
, appellant did not3

also form an i n tent to kil l

. See Ex parte Thompson , 179 S.W.3d at 559 ; see also Cavazos , 382 S.W.3d at 385 (speculation insufficient ); S alinas v. State , 163
S.W.3d 734, 737

– 38, 741

– 42 (Tex. Crim. App. 2005) (d efendant no t entitled to felony murder instruction as lesser

- inclu ded of f ense of capital murder despite evidence that it was the accomplice ’ s idea to rob the decedent , the accomplice who
took the dece dent ’ s money, and the accomplice who pulled the trigger) . This evidence does not negate or contradict Flores ’ s test i mony that a p pellant participated in the agreement to murder the decedents and told Flores where to do
it.

I would affirm the judg ment

.

/s/ Ken Wise Justice

Panel consis ts of Justice s Wise, Bourliot, a nd Spa i n. (B ourlio t , J., majority).
Pub lish

— T EX

. R. A PP

. P. 47.2( b).