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 
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“directly germane” to the lesser-included offense that both raises the lesserincluded 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).