## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 18

- 00178

- CR

KYRON DYLNN ADAMS, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 46,639

- B

Before Morriss, C.J., Burgess and Carter , * JJ.

Memorandum Opinion by Justice Burgess

________________________
* Jack Carter , Justice, Retired, Sitting by Assignment2 

### MEMORANDUM OPINION Kyron Dylnn Adams appeals his conviction for murder. 1 After reviewing the record and applicable law, we find that the trial court did not err in denying Adams’ Batson complaint or in refusing Adams’ request for a lesser

- included offense instruction in the court’s charge to the jury. We affirm the trial court’s judgment and sentence.
I. Factual Background Adams shot Thomas Harper in the back, in the early morning hours of February 4, 2017 , in the parking lot outside J’s Place, a nightclub in Longview. 2 Accor ding to the testimony, Harper had previously attacked Adams’ friend, Kenneth Fiengo, rendering Fiengo unconscious. Witness Michael Allison, a friend of Harper’s, testified that after Harper hit Fiengo, Adams approached Harper and the men sparred a bit, th en parted ways. Allison then saw Adams travel along side the building and fire one shot at Harper. Adams then went behind the building, out of Allison’s view. Subsequently, Allison heard two more shots. 3 Allison said Adams retrieved the gun from a car after his initial fight with Harper. Harper was dead by the time law enforcement and emergency personnel arrived.

1 See T EX
. P ENAL C OD E A NN
. § 19.02(b)(1). Adams was sentenced to seventy

- five years’ incarceration.

2 Harper’s autopsy indicated he had been shot in the back, with an exit wound from his chest, from at least two feet away.

3 Three shell casings were found at the scene.3 II. Adams’ Batson Claim After the parties conducted voir dire

— but before the trial court seated the jury

— Adams claimed the State had improperly used two of its peremptory strikes against African

- American members of the venire. Adams only complains of one of these strikes on appeal. A. Standard of Review Although Texas law allows parties to make peremptory strikes of venirepersons fo llowing voir dire, 4 such strikes cannot be used to violate a party’s Equal Protection Clause rights by striking venirepersons because of their race. See Batson v. Kentucky , 476 U.S. 79, 89 (1986); see also U.S.
C ONST . amend. X I V , § 1. In Colone v. State , the Texas Court of Criminal Appeals succinctly summarized the law and procedure regarding Batson challenges:
In Batson v. Kentucky , the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the State from exercising a p eremptory challenge against a juror on the basis of race. A three

- step process is used to analyze Batson claims: (1) the opponent of the peremptory challenge must present a prima facie case of racial discrimination, (2) if that is done, the burden shifts to the proponent of the peremptory challenge to present a race

- neutral reason for the challenge, and (3) if that is done, the trial court must then determine whether the opponent has proven purposeful racial discrimination. We will assume that the State’ s allegation that it had race

- neutral reasons for the peremptory challenge renders step one of the Batson analysis moot. At step two, the proponent of the peremptory challenge need only tender an explanation that is racially neutral on its face. If the e xplanation at the second step is determined to be race neutral, then at step three, the opponent of the peremptory challenge bears the burden of persuasion to show that the race

- neutral explanation is not genuine (that the peremptory challenge was indeed a product of purposeful discrimination). Colone v. State , 573 S.W.3d 249, 262

– 63 (Tex. Crim. App. 2019) (footnotes omitted) (citations omitted)

.

4 Se e T EX
. C ODE C RIM
. P ROC
. A NN
. art. 35.15(b)

.4 B. Discussion At trial, Adams argued that the State had “conducted meaningless voir dire” with the venireperson at issue. The State responded that the venireperson was a postal worker and that it “ha[ d ] struck anyone who work [ed] for the United States Postal Service.” The State continued,

“ I f there had been more than one United States Postal worker on here, they would have all been struck.” Adams offered no rebuttal to the State’s explanation. The fact that a venireperson is employed with the United States Post Office has been held to be a racially neutral reason for exercising a peremptory strike. See Tompkins v. State , 774 S.W.2d 195, 206 (Tex. Crim. App. 1987); Leadon v. State , 332 S.W.3d 600, 614 (Tex. App.

— Houston [1st Dist.] 2010, no pet.) . Consequently, once t he State explained its basis for striking the venireperson in question , it established a race

- neutral basis for exercising the strike, and Adams then bore the burden to rebut the State’s proffered reason. Nevertheless, Adams “ [ made] no attempt to show tha t this race

- neutral explanation [was] not genuine or to show purposeful racial discrimination.” Colone , 573 S.W.3d at 263. Accordingly, Adams failed to rebut the State’s race

neutral reason, and the trial court did not err in overruling his Batson compla int. We overrule the first point of error. 5

5 In his brief, Adams directs us to Keeton v. State , 749 S.W.2d 861 (Tex. Crim. App. 1988) , for the proposition that “[g]eneral assumptions about occupational or g roup bias against a party do not justify a strike in the absence of evidence that the particular veniremen bears any other undesirable characteristics.” This is not a correct r e ading of Keeton . To the extent Keeton references improper use of one’s occupation as a potential pretext for racial disc rimination, those mentions are , at most , dicta. See id. at 867, 868. The challenged strikes in Keeton were held to be race neutral. The State’s reasons for the strikes were: one venireperson had a close relationship to the defendant and his family , one evinced a bias against the State because he had been prosecuted for and convicted of a misdemeanor by the State, and one said he would hold the State to a higher burden of proof because it was a death penalty case. Id . at 870.5 III. Adams W as Not Entitled to Instruction on Criminally Negligent Homicide In his second point of error, Adams claims the trial court should have instructed the jury on the lesser

- included offense of criminally negligent homicide. 6 Because the record does not show that Adams failed to appreciate the risk of wielding a pistol in the middle of an altercation, we find that he was not entitled to the requested instruction. A. Standard of Review
In order to be entitled to a lesser

- included

- offense instruction, the record must “contain some affirmative evidence that would permit a jury rationally to find that, if a defendant is guilty, he is guilty only of the lesser

- included offense.” Nguyen v. State , 506 S.W.3d 69, 81 (Tex. App.

— Texarkana 2016, pet. ref’d) (citing Schmidt v. State , 278 S.W.3d 353, 362 (Tex. Crim. App. 2009)). Thus, “[t]he evidence must establish the lesser

- included offense as a valid rational alternative to the charged offense.” Id . (cit ing Wesbrook v. State , 29 S.W.3d 103, 113

– 14 (Tex. Crim. App. 2000)). “Anything more than a scintilla of evidence is sufficient to entitle a defendant to an instruction on the lesser charge.” Id. (citing Ferrel v. State , 55 S.W.3d 586, 589 (Tex. Crim. Ap p. 2001)). “However, if a defendant

. . . presents no evidence and there is no affirmative evidence otherwise showing he is guilty only of a lesser

- included offense, then a charge on a lesser

- included offense is not required.” Id. (citing Bignall v. Stat e , 887 S.W.2d 21, 22

– 24 (Tex. Crim. App. 1994); Aguilar v. State , 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)). Additionally, “it is not

6 “ Criminally negligent homi cide is a lesser included offense of murder. ” Saunders v. State , 840 S.W.2d 390, 391 (Tex. Crim. App. 19 92 ) (per curiam)

.6 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.” Hampton v. State , 109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on other grounds by Grey v. State , 298 S.W.3d 644 (Tex. Crim. App. 2009). To be entitled to a jury instruction on criminally negligent homicide , the record must contain some evidence the actor “failed to perceive the risk created by his conduct.” Truji l lo v. State , 227 S.W.3d 16 4, 168 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref’d) ; s ee Still v. State , 709 S.W.2d 658, 660 (Tex. Crim. App. 1986)

. B. Discussion In this case, there is no evidence that Adams failed to perceive the risk of firing a firearm in response to what he descr ibed as a wrestling match or fistfight. Adams testified that after Harper knocked Fiengo unconscious, he threatened Adams and chased him. Adams said he fled to his car where his friend Miguel Berrospe was sitting. 7 Yet, rather than lock the car door or drive away, Adams told Berrospe to “give [Adams] the gun.” Adams testified that when he let go of the car door to put the gun in his pocket, Harper opened the car door and grabbed him, and the two then fought outsid e the car. According to Adams, Harper put him in a choke hold , and he was beginning to blackout when, Adams testified, he “just start[ed] shooting until he let me go.” Adams testified that he did not see Harper again after that.

7 Berrospe testified he was very intoxicated th at night at J’s Place. He did not remember anything after taking Xanax, cocaine, and shots of liquor, which he did in the parking lot before entering the club.7 “[T]here must be some e vidence that the defendant was guilty only of reckless or negligent conduct before an instruction on the lesser offense is required.” Navarro v. State , 863 S.W.2d 191, 206 (Tex. App.

— Austin 1993) , pet. ref’d , 891 S.W.2d 648 (Tex. Crim. App. 1994). The Te xas Court of Criminal Appeals explained the nature of criminal negligence

— as compared to recklessness

— as follows: [ R ] eckless conduct . . . involves,

c onscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. . . . Criminal negligence involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof. At the heart of reckless conduct is conscious dis regard of the risk created by the actor’s conduct; the key to criminal negligence is found in the failure of the actor to perceive the risk. Thomas v. State , 699 S.W.2d 845, 849 (Tex. Crim. App. 1985) ( quoting Lewis v. State , 529 S.W.2d 550, 533 (Tex. Cri m. App. 197 5 ) )

. In Thomas , the Texas Court of Criminal Appeals noted that in previous cases, the courts considered two factors in determining whether a charge on criminal negligence should have been given: “whether a defendant pointed a loaded gun at an other and whether the weapon accidentally discharged.” Id . Yet, the Texas Court of Criminal Appeals also noted that mere reliance on these two factors was not adequate to evaluate the necessity of a criminal negligence charge because “[e]very case in whi ch someone points a loaded gun at another does not require that a charge on criminally negligent homicide be given. Nor does the allegation of accidental discharge necessarily raise the issue.” Id . at 850. Instead, the Court of Criminal Appeals noted , “ T he attendant circumstances from which the defendant’s mental state can be inferred must be8 collectively examined in light of the definition of criminally negligent conduct.” Id . Thus, it rejected previous cases which had held that “the pointing of a loaded weapon [was] sufficient to raise criminally negligent homicide” and held that “[o]ther evidence raising the issue of whether or not a defendant was aware of the risk must be presented before such charge is required.” Id

. The Court of Crimina l Appeals then noted that testimony or evidence that the accused “knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another, indicates a person who is aware of a risk created by that conduct an d disregards the risk” and who is not entitled to an instruction on criminally negligent homicide. Id

. ( citing Simpkins v. State , 590 S.W.2d 129, 144 (Tex. Crim. App. [Panel Op.] 1979 ) ). 8 On the other hand, where there is evidence the defendant “was unfa miliar with firearms, had never seen the shotgun before and thought it was unloaded” and “grabbed the shotgun from another person, intending to scare the deceased, and the gun discharged,” those “factors entitled the defendant to a charge on criminally neg ligent homicide.” Id . at 851 ( citing Moore v. State , 574 S.W.2d 122,
124 (Tex. Crim. App. [Panel Op.] 1978 ) )

. In Thomas , the Court of Criminal Appeals ultimately rejected the defendant’s theory that he was entitled to a charge on criminal negligence bec ause [t] he thrust of appellant’s defense, demonstrated through his witnesses and his own testimony, was self

- defense and accident, not an unawareness of risk in exhibiting a possibly loaded gun under the circumstances. In fact, appellant testified that h e was afraid of Roy and that he was afraid that if Roy took the gun away from appellant [ , ] Roy would shoot appellant. This testimony reflects an awareness of

8 Simpkins testified that “he had qualified on the rifle range in the Army and that he knew weapo ns were dangerous.” Simpkins v. State , 590 S.W.2d 129, 1 3 4 (Tex. Crim. App. [Panel Op.] 1979 ).9 the risk of injury or death involving the use or exhibition of the gun under the circumstances of the offense. Id . at 852. This case is even further removed from criminal negligence than Thomas . In Thomas , the defendant testified that “he did know how the gun fired.” Id . at 849. He also testified that “in order to fire the gun [ , ] two steps were necessary. First, it had to be cocked; secondly, the trigger had to be pulled.” Id . at 852. He then testified that he “did not recall ever cocking the gun and denied that he intend ed to fire it or that he fired it at all. He said that w hen he pushed Roy [,] the gun discharged.” Id . In the present case, Adams testified that as he was blacking

- out , he “just start[ed] shooting until [Harper] let [him] go.” Thus, there is no evidence in the present case that would support a finding that Ad ams failed to perceive the risk attendant to firing a firearm. Moreover, although there is no specific evidence of Adams’ familiarity with the firearm in this case, a firearm is a deadly weapon per se. See T EX
. P ENAL C OD E A NN
. § 1.07 (Supp.) ; Ex parte
F ranklin , 757 S.W.2d 778, 782 (Tex. Crim. App. 1988) (orig. proceeding)

. Where a firearm is the method of causing death, an intent to kill may be inferred from the accused’s use of a deadly
weapon per se. See Flanagan v. State , 675 S.W.2d 734, 744 (Tex. C rim. App. [Panel Op.] 1982) (op. on reh’g) . Thus, merely pointing to an absence of evidence that he was familiar with firearms is not sufficient to establish that Adams failed to perceive the risk associated with firing a firearm towards Adams. A somewh at similar situation was presented in Jackson v. State , 248 S.W.3d 369 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref’d). In that case, the defendant, Jackson, was engaged in a verbal altercation with the victim. Id . at 370. In statements at the scene th e following day,10 Jackson stated that he had been quarrelling with the victim at Jackson’s home. Jackson first told officers at the scene that the victim struck him in the head, but the next day, Jackson told police that the victim did not strike him, but merely confronted him. However, in both statements, Jackson said he pulled a gun from his pocket which accidentally discharged as the two men struggled over it. Id . at 370

– 71. Although Jackson did not testify at trial, he argued that the trial court erred in denying his request for an instruction on criminally negligent homicide. Id . at 371. The Houston Fourteenth Court of Appeals held that “[w]here the defendant kills a nother person with a deadly weapon per se, more than speculation of this sort is required before the submission of an instruction on

. . . criminally negligent homicide is necessary.” Id . at 372 ( quoting
Navarro , 863 S.W.2d at 206 ) . It concluded that the record did not entitle the appellant to the requested instruction on criminally negligent homicide. The Houston court stated, Evidence that appellant drew a handgun, a deadly weapon per se, from his pocket in response to a threat by [the victim] does not alone raise an inference that appellant was unaware of the risk posed by that conduct. To the contrary, drawing a deadly weapon in response to a physical threat indicates that the actor is not only aware of the risk posed by the weapon, but is choosing t o exploit that risk. Id . at 372. As in Jackson , Adams claimed to have been arguing with the victim. A physical altercation ensued, and Adams said he pulled a pistol from his pocket. T he c ourt of a ppeals in Jackson noted ,

“ E vidence of accidental disch arge may raise an inference that the defendant did not perceive a risk of injury or death, for example, when evidence is also presented that the defendant was not aware that the gun was loaded.” Id . at 373 ( citing Levan v. State , 93 S.W.3d 581, 585 (Tex. App.

— Eastland 2002, pet. ref’d ) ). Yet, unlike the defendant in Jackson , who claimed the weapon11 accidentally discharged, Adams testified that when Harper put him in a choke hold, he “just start[ed] shooting until [Harper] let [him] go.” Thus, this case pr esents even less justification for a lesser

- included instruction on criminal ly negligent homicide than was present in Jackson

. In his brief, Adams argues Moore v. State is controlling. We do not agree. The defendant
in Moore testified that she “grabbed [the] shotgun [which killed the decedent] by the barrel” intending “to scare the deceased, but did not intend to point it at the deceased or pull the trigger.”
Moore v. State , 574 S.W.2d 122, 124 (Tex. Crim. App. [Panel Op.] 1978) . She said “afterwards [ she] could not believe that it had discharged. She further testified that she had never seen the shotgun before and thought it was unloaded.” Id . Also, she said that “she was unfamiliar with firearms and had fired a gun only once, twenty years previousl y.” Id

. T he responding law enforcement officer testified that upon his arrival , Moore “was frantic and kept repeating that ‘she shot him, and she did not know the gun was loaded.’” Id

. Yet, as the c ourt note d in Jackson , “[D]rawing a deadly weapon in response to a physical threat indicates that the actor is not only aware of the risk posed by the weapon , but is choosing to exploit that risk.” Jackson , 248 S.W.3d at 372. Here, as in Jackson , the “appellant cites neither evidence that he was unaware that the gun was loaded nor evidence otherwise indicating that he did not appreci ate the risk posed by the weapon.” Id . at 373. Unlike the appellant in Moore , there was no testimony or evidence Adams did not think the pistol was loaded. He knew the gun was present because he asked Berrospe for it. And he acknowledged shooting the g un in response to Harper allegedly choking him. Consequently, Adams was not entitled to his requested jury charge12 instruction on the lesser offense of criminally negligent homicide. We overrule Adams’ second point of error. IV. Conclusion
For all of the for egoing reasons, the trial court’s judgment and sentence are affirmed.

Ralph K. Burgess Justice Date Submitted: July 15, 2019 Date Decided: August 20 , 2019
D o Not Publish