Affirmed as Modified and Memorandum Opinion filed June 2 9 , 2021
.

In The 

## Fourteenth Court of Appeals

NO. 14
- 20
- 00107
- CR NO. 14
- 20
- 00108
- CR

ANTOINE KIRKWOOD , Appellant

V. THE STATE OF TEXAS , Appellee
On Appeal from the 403rd District Court

Travis Co u nty, Texas T rial Court Cause No s . D
- 1
- DC
- 18
- 301185 ; D
- 1
- DC
- 18
- 900211

MEMORANDUM OPINION A jury found appellant guilty of manslaughter and unlawful possession of a firearm . In two issues, appellant contends that the evidence is insufficient to support t he manslaugh ter conviction and that the trial court erred by not severing the two charges. The State contends that the trial court ’ s judgments contain clerical errors. We modify the judgments to correct the errors and affirm the judgments as modified

.2 I. S U FFICIENCY OF THE E VIDENCE In his first issue, appellant contends that the evidence is insufficient to prove him guilty of manslaughter because his actions were not a gross deviation from the standard of care an ordinary person would exercise.
A. Standard o f Review and Legal Principles When reviewing the sufficiency of the evidence, we consider all of the admitted evidence in the light most favorable to the verdict to determine whether a rational jury could find the essential elements of the offense beyond a reasonable doubt. Stahmann v. State , 602 S.W.3d 573, 577 (Tex. Crim. App. 2020). The jury is the sole judge of the witn esses’ credibility and the weight to be gi ven to their testimony. Id. Juries can draw any reasonable inference from the facts so lon g as each inference is supported by the evidence. Id. A person commits manslaughter by recklessly causing the death of an individual. Tex. Pe nal Code § 19.04. The culpable mental state of recklessness applies to the result of the conduct, i.e., causin g death. Schroeder v. State , 123 S.W.3d 398, 399 (Tex. Crim. App. 2003) . A person acts recklessly with respect to the result of his conduct when he is aware of bu t consciously disregards a substantial and unjusti fia ble risk that the result will occur. T e x. Penal Code § 6.03(c); Schroeder , 123 S.W.3d at 399. “ The r isk must be of such a degree that its disregard constitutes a gross dev iation of the standard of care that an ordinary person would exerci se under all the circumstances viewed from the actor ’ s

s tandpoint. ” Tex. Penal Code § 6.03(c).

“ P roof of a culpable mental state generally relies upon c ircumstantial evidence. ” Stadt v. State , 120 S.W.3d 428, 438 (Tex. App.

— Houston [14th Dist.] 2003), aff ’ d , 182 S.W.3d 360 (Tex. Crim. App. 20 05). A jury may i nfer3

recklessness from the acts, words, and conduct of the accused and the surrounding circumstances. Id.
B. Evidence An employee at a bar testified that he saw appellant get into a n argument with the dece dent and one or two other men outside the bar. A s e curity camera recording was admitted as an exhibit and show s the events directly leading up to the shooting

. The employee testified that when appellant walked to his car, the decedent and his friend started cursing and saying words to appellant, which “ g o t a rise out of

” appellant. T he video shows appellant reach around inside the door area of his car and then to his waist or pocket

. He stayed by the car for about ten seconds. The employee testified that a ppellant came back to the men and continued

ar g uing with the m . A “ little scuffle ” started , and the employee believed that a pistol fell from the back of appellant ’ s pants. The pistol and clip separated and fell to the ground. The decedent picked up the clip and some bullets off the ground while app e llant pick ed up the gun. The employee testified that appell ant “ ran back to his car, and at that point maybe he reloaded. ” T he video shows that appellant stayed at his car for about five seconds

. According to the employee, the decedent continued to tau n t appellan t

. Appellant walked from his car toward the decedent while holding the gun . The decedent punched appellant in the face , and appellant “ looked a little dazed

. ” Appellant came back towards the decedent and swung the gun at the decedent to

“ pist o l whip ” hi m. The gun hit the decedent ’ s chest and went off . The decedent was shot in the head and died. Appellant got back i n his car and drove away.4

The court admitted into evidence a video recording of appellant ’ s interrogation by p olice. During the interro gat ion, a ppellant admitted to shooting the decedent. He claimed that the pistol was not his and someone else had dropped it. He claimed to have left the pistol at the scene, although an officer testified that the gun was never recovered. Appella n t ackno wle dged during the interrogation that the gun did not ha ve a “ lock ” or safety on it. A police officer testified that appellant ’ s stating there was no safety on the gun showed that appellant had at least some familiarity with the weapon. The offic e r also tes tified that people are t aught in gun sa fety courses to assume that every gun is loaded and that they should not point a gun a t anything they do not want to sho o t. Appellant testified similar to his prior statements that the gun dropped from

some o ne else an d was not his. He testified that he picked up the gun because he did not want some one else to get it and shoot him

. He testified that he did not know the gun was loade d. He ackn owledged that a fter t he shooting , he told his girlfriend to repor t as stolen the car he had been driving. He shaved his head and beard so he would not rese mble the person th at the police had been looking for. He testified that he gave the gun to his girlfriend.
C. Analysis Appellant contends that his disregard of the ris k of death to the decedent was not a gross deviation fr om the standard of care th at an ordinary person would exercise under all the circumstances viewed from his standpoint. In particular, appellant notes that he was responding to a continuing physica l th reat, he w as panicked and dazed, and he believed there wasn ’ t a bullet in the gun when he used it to swing at the decedent.
The Court of Criminal Appeals has reasoned that “ a reckless state of mind may be inferred or presumed from the act of pointing a gun at someon e. ” Guz man5

v. State , 188 S .W.3d 185, 193

– 94 (Tex. Crim. App. 2006) (no ting that the defendant testified that he did not know the gun was loaded a nd he “thought it was unloaded because he had removed the clip, ” but it did “not matter that app ella nt may hav e also believed that the gun was unloaded ”). “Courts have upheld jury findings that a defendant consciously disregarded a substantial and un justifiable risk in numerous situations involving allegedly accidental discharge of a firearm. ” Gaha gan v. State , 242 S.W.3d 80, 86 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref ’d) (col lec ting cases ) ; see also Heredia v. State , No. 03

- 19

- 00311

- CR, 2020 WL 6789092, at * 4 (Tex. App.

— Austin Nov. 19, 2020, pet. filed) (mem. op., not designated for publicatio n) ( collecting cases for the proposition that a “ jury may infer recklessness from evi dence that a defendant was familiar with firearms and pointed a firearm in the victim ’ s direction, even if the defendant claimed not to know that the firearm was loaded ”)

. Ev idence tha t a defendant was familiar with guns and took actions after the shootin g to conceal evidence may support a reasonable inference that the defendant was conscious of the risk created by their actions. See Gahagan , 242 S.W .3d at 8 3

– 84 , 88 ( u pho ldin g manslaug hter conviction wh en the defendant was familiar with guns although she testified that she had unloaded the gun before the accidental discharge; and after the shooting , she removed the casing from the gun and hid it, did not render aid to the dece de nt, lied to police that the decedent had held the gun, placed the gun in the dec edent ’s hand, and washed her hands and face befo re paramedics arrived)

. The jury heard evidence that appellant brought a gun to a fist fight. The jury could have credited the employee ’ s tes timony that the gun fell from appellant ’ s pants , which was consistent with the video appearing to show that appellant retrieved something f

rom his car

. Regardless, appellant testified that he picke d up the gun because he did not want so meon e else to s hoot him with it , and he knew6

there was no lock or safety on the gun . This evidence demonstrates appellant ’ s familiarity with the gun and his awareness that his conduct risked causing death

. See Sadler v. St ate , 728 S.W.2d 829, 831 (Tex. A pp.

— Dallas 1987 , no pet.) (upholding manslaughter convi ction and reasoning t hat the de fendant was aware of the risk of injury or death involved in a struggle over a gun because the defendant testified that he wanted to gain possession of the gun “ because h e wa s afraid th at if the deceased reached the pistol first she would shoo t h im ” ). After picking up the gun, he retreated to his car where he stayed for at least fi ve seconds. Rather than leave the scene or place the gun in the car, he engaged the deceden t wh ile ho lding the gun. After the decedent punched appellant, appellant sw ung the gun at the decedent and shot him in the head. The jury could have determined that appellant ’ s conscious disregard of the risk of death associated with swinging a gun at th e de cedent was a gross deviation fr om the standard of care that an ordinary person would exercise under all the circumstances viewed from his standpoint

. Moreover, appellant ’ s conduct after the shooting

— fleeing, changing his appearance, atte mpting to conce al e vidence , an d lying to police about what he did with the gun

— demonstrates a consciousness of guilt. See Gahagan , 242 S.W .3d at 88 (upholdin g manslaughter conviction based on circumstantial evidence supporting a reasonable inference that the defendant w as c onscious of the risk created by her actions , “ such as [the defendant] ’ s familiarity with guns and her actions immediately following the shooting ” ) ; see also Hammock v. State , PD

0636

- 19, 20 21 WL 2009583, at *6 n
. 33 (Tex. Crim. App. May 19, 2021) (notin g th at circumst antial evidence of a consciousness of guilt inclu des flight after the offense, secretive actions, attempting to hid e or co nceal evidence , and giving false information to police ); Harmel v. State , 597 S.W.3d 943, 955 (Tex. App.

— Austin 2020, n o pe t.) ( “ And ‘ consciousness of guilt i s perhaps one of the strongest kinds7

of evidence of guilt. ’ ” (quoting Harris v. S t ate , 645 S.W.2d 447, 456 (Tex. Crim. App. 1983))).
C o nsi dering all of the evidence in the light most favorab le to the jury ’ s verdict, a rat ional jury could ha ve found beyond a reasonable doubt that appellant recklessly caused the decedent ’ s death

. Appellant ’ s fi rst issue is overruled

. II. S EVERANCE In his second i ssue, appellant contends that the trial court erred by refusing to sever the tw o ch arges, and this error “ prejudiced [hi m] as to the possession of the firearm case, because the self defense argume nt in the manslaughter case placed him at the scene of the a lleged possession of firearm charge, which the State would otherwise not have b een able to est ablish. ” Appellant contends further that his “ decision to argue self def ense deprived him of the right to allege a defense without damaging his chances of succes s at trial as to the felon in possession of handgun case. ” 1 The State concedes err or but cont ends that appellant was not harmed.
A trial court ’ s erroneous denial of a severance motion is reviewed for harm under the non
- constitutional error analysis

. Werne r v. State , 41 2 S.W.3d 542, 547 (Tex. Crim. App. 2013). We must disrega rd the err or unless i t adversely affected appellant ’ s substantial rights. See id. ; see also Tex. R. App. P. 44.2(b). Generally, the harm involved in not severing charges is that (1) th e jury may convict a “ bad

man ” not because of the crime charged but bec ause of h is prior or s ubsequent misdeeds , and (2) the jury will infer that because the defendant committed other crimes, he probably committed the crime charged. Se e Werner , 412 S.W.3d at

1 Appellant did not request, nor did the trial court give the jury, a s elf

- defense instruction.8

547. When there is a substantial overlap of evidence between the two ch arge s, the failur e to sever is most likely harmless. I d. at 548

– 49. Appellant ’ s argument regarding the unlawful possession case is unfounded because the jury heard ample evidence other than his testimony that placed appellant at the scene . He admitted in his video

- record ed st atement to police that he possessed the gun and shot the decedent

. Other witnesses testified that appellant shot the decedent. Thus, evidence of his guilt on the unlawful possession case was overwhelming even witho ut appellant ’ s tes timo ny
. See id. at 551 (considering overwhelming evidence of guilt). Moreover, appellant was not harmed regarding the manslaughter case because the evidence regarding th e unlawful possession case substantially overlapped

. Evidence that appellant possess ed a gun was esse ntial to the m anslaughter case

. See id. at 548 (no harm when evidence wa s admissible in any event)

. Appellant ’ s second is sue is overruled.

III. M ODIFICATION OF THE J UDGMENTS The State filed a motion for judgments nunc pro tunc , asking this cou rt t o modify the trial court ’ s judgments due to clerical errors. Appellant did not file a response. The State contends that the judgment in Cause No. D

- 1

- DC

- 18

- 301185 erroneously reflects that (1) appellant ’ s manslaughter conviction was for a first degree fel ony when i t w as for a second degree felony , see Tex. Penal Code § 19.04(b) ; and (2) appellant pleaded “ true ” to en hancement allegations when he pleaded “ not true. ” The State contends further that the judgment in Cause No. D

1

- DC

- 18

- 900211 erroneously refl ects that (1) appellant ’ s unlawful possession of a firearm conviction was for a second degree felony when i t was for a third degree9

felony , see Tex. Penal Code § 46.04(e) ; and (2) appellant pleaded “ true ” to an

en hancement allegation when he pleaded “ n ot t rue. ”
A court of appeals has authority to reform a n erro neous judgment when the
court has the necessary information to do so. See Carmona v. State , 610 S.W.3d 611, 618

– 19 (Tex. App.

— Houston [14th Dist.] 2020, no pet.) ; Houston

- Randle v. State , 499 S.W .3d 912, 915

– 16 ( Tex. App.

— Houston [14th Dist.] 2016, pet. ref ’ d);

see a lso La Branch v. S t

ate , No. 03

- 12

- 00473

- CR, 2014 WL 3411207, at *7 (Tex. App.

— Austin July 11, 2014, no pet. ) (mem. op., not designated for publication) (modifying judgment rather than i ssui ng judgment n unc pro tunc to correct clerical error in tr ial court ’ s judgment). Having reviewed the record, we conclude that the judgments contain clerical

errors capable of reformation by this court. The State ’ s motion is granted. We modify the judg ment s to reflect that appellant pleaded “ not true ” to the enhancement allegations and that the manslaughter and unlawful p ossession of a f irearm convictions are second degree and third degree felonies, respectively.
We affirm the judgments as mod ified.

/s/ K en Wi se J ustice

Panel con sists of Chie f Just i ce Ch ristopher and Jus ti ces Wise and Hassan

. Do Not Pub lish

— Tex

. R. App. P. 47 .2( b).