1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sit ting by a ssignmen t. NO. 07-03-0509-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E JUNE 15, 2005

______________________________ PEDRO CHAVEZ, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 140TH DISTRICT COURT OF LUB BOCK COUNTY; NO. 2003-401700; HONORABL E JIM BOB DARNELL , JUDGE

_______________________________ Before QUINN, C.J., and REAVIS, J. and BOYD, S.J. 1
MEMORAND UM OPINION Following a plea of not guilty, appellant Pedro Chavez was convi cted by a jury of murder an d sentenced to fift y years co nfinemen t. By two issues, appellant contendsthe trial court erred (1) byfailing to include an instruction in the charge on the lesser included offense of mansl aughter, and (2) b ecause th e failure to include manslaughter in the charge2

denied him due process and afair tria l as gua ranteed u nder the Fourteen th Amendm ent. We affirm. Appe llantwas involved in a dispute in which he shot the victim with a .45 caliber handgun. The incident occ urred in the early morning hours of D ecember 1 9, 2002, at a residence where appellant had gathered with friends for breakfast. Prior to the shooting, appellant

and his friends participated in a pool tournament at a lo cal bar. The group stayed at the bar until it closed and then met at t he residence where they mixed drinks and social ized. The victim, who was known by appe llant, had not been with the group a t th e bar. He arrived at the residence later and joined them in the kitchen.
When the v ictim arrived, he shook hands with appellant, and the group continued to drink and converse. Suddenly, the two men en gaged in a heated argument and had to be separate d. One of

the frien ds escorted the vi ctim outsi de to try to get him to calm down. Appellant

remained inside the house for a brief p eriod be fore deci ding to g o home. As he walked outside, he observed the victim standing in the driv eway whe re his car was parked. When the victim saw appellant on the porch, he charged at him and struck him in the face with his fist. As the two were being separated, ap pellant drew his handgun and fired at the victim, hitting him multiple times in his left side and back. Appellant then ha nded the gun
over to a friend and fled the scene. An au topsy determined the vic tim died of a gunshot wound to the lower back.
The next day, appellant turned himself in and was char ged with murder. A

fter a jury trial, he was found guilty and sen tenced t o fifty years confinement. By his first issue,3

appellant

argues the jury should have been instructed on the lesse r offe nse of manslau ghter

because there was evidence he was trying to leave, did not intend to kill anyone, and fire d warnin g shots to compel h is attack

er to disengage from the enco unter. Appellant

contends he was harmed by th e court’s failure to include the instruction and i s entitled to a new trial. We disagree.
An instruction on a lesser included offense is proper when (1) the lesser i ncluded offense is inclu ded within t he proof necessary to establish the offense charged, and (2)
some evid ence exists in the record that would permit a rational jury to find that if the defendantis guilty, he is guilty only of the lesser offense. R ousseau v. State, 855 S.W.2d 666, 672 -73 (Tex .Cr.App. 1 993); Tex . Code Cr im. Proc. Ann. art. 37.09 (Ve rnon 198 1).
Both parties are in ag reement th at mansla ughter is a lesser included offense of murder. See Jackson v. State, 992 S.W.2 d 469, 47 5 (Tex.C r.App. 19 99). Therefore, the first prong of Rousseau is met. Regarding the second p rong, for a rationa l jury to find that appellant

was guilty only of mansla ughter, th ere must e xist som e eviden ce in therecord that appellant was reckless in causing the death of the victim, but did not act intentionally
or knowingly. Tex. Pen. Code Ann . § 19.04 (Vernon 2003); Adanandus v. State, 866 S.W.2d 210, 232 (Tex.Cr. App. 199 3). Section 6.03(c) of t he Penal Code pro vides tha t a person’s conduct is reckless when he“is awar

e of but consciously disregards a substantial and unjustifiable risk . . . the resu lt will occur.” Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). In contrast, one acts intentionally “when it is h is conscious obje ctive or d esire to engage in the conduct

or cause the result” or knowingly “when he is aware that his conduct is reasonably certain to cause the resul t.” Id. at (a)-(b) . In othe r words, f or appel lant to4

receive an instruction on the lesser included offense of manslaughter, a rational jury must be able to find that appellant behaved in such a way that he consciously disregarded a substantial and unjustifiable risk toward the victim, but was not aware that his conduct was reasonab ly certai n to caus e the vic tim’s dea th. See id. at (a)-(c).
In the instant case, appella nt claims he was a ttempting to leave the residence when he saw the victim stand ing n ear his vehicle in the driveway. He testified that when the victim refused to leave, he fired two warn ing shots into the air, but the victim did not leave and conti nued to mak e threats. Appellant then pointed the gun at the victim, turned his face, and fire d until t he gun was empty. At trial, appellant claimed he fired the gun in selfdefense, stating if he had not shot the victi m “it wou ld [havebeen] th e other way around .” Accordingly, the jury was proper ly instru cted on th e law of self-defe nse. However, appellant

was not entitled to an instruction on the lesser offense of manslaughter because
one cannot accidentally or recklessly act in self-defense. Martinez v. State, 16 S.W.3d 845, 848 (Tex.App.–Houston [1st Dist.] 2000, pet. ref’d); Johnson v. State, 915 S.W.2d 653, 659 (Tex.App .–Housto n [14th D ist.] 199 6, pet. re f'd).
In his brief, appellant relies on O’Brien v. State , 89 S.W.3d 753, 756 (Tex.App.–Houston [1st Dis t.] 2002, pet. ref’d ), for the proposit ion that evidence which shows a defendant acted in self-defense may also ex ist alongside evidence the defendant
was reckless

in causi ng his a ttacker’sdeath. I n O’Brien , the defendantintentionally aimed
a gun at th e victim in self-d efense bu t was stru ck over th e head w ith a board which caused him to clenc h and fir

e the gun acciden tally. Id. at 755-56. The court determin ed the5

evidence was sufficient to suggest the defendant recklessly caused the death of the victim and entitled him to an instruction on the lesser offense of involuntar y ma nslaugh ter. Id.
In the present case, although he argues he d id not intend to kill anyone, the evidence shows appellant intentionally pointed the gun at the victim and fired until the clip
was empty. Unlike O’Brien , there is no evidence which would permit a rational jury to conclude that app ellant’ s conduc t was mere ly r eckless in nature

. See also Stewart v. State, 587 S.W.2d 148, 151 (Tex.Cr.App. 1979) (failing to find reckless conduct where the defendantintentionally

shot the victim toward off an attack). As a result, the second prong of Rosseau

is not satisfied, and we conclude the trial court did not err in refusing to instruct the jury on the lesser included offense of manslaughter. Appellant’s first issue is ove rruled. Our disposition of

this issue pretermits consid eration of appell ant’s rem aining i ssue. See Tex. R. App. P. 47.1. Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis Justice Do not pu blish.