# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

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v. The STATE of Texas, Appellee From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2016CR11801 Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice Delivered and Filed: December 12, 2018
AFFIRMED Ryan Rodriguez was convi cted by a jury of criminally negligent homicide. On appeal, Rodriguez challenges the sufficiency of the evidence to support the jury’s verdict. We affirm the trial court’s judgment.
B ACKGROUND The evidence is undisputed that Rodriguez fatally shot Melody Cerros

. Rodriguez was indicted for manslaughter. The jury found Rodriguez guilty of the lesser included offense of criminally negligent homicide. Rodriguez appeals.04

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- S TANDARD OF R EVIEW When reviewing the sufficiency of the evidence, we consider all the evidence in the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jack son v. Virginia , 443 U.S. 307, 319 (1979) ; Queeman v. State , 520 S.W.3d 616, 622 (Tex. Crim. App. 2017)

. “ The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses, and juries may draw multiple reasonable inferences from the facts so long as each is supported by the evidence presented at trial. ” Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson , 443 U.S. at 319). W hen the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict , and we defer to that resolution

. Jackson , 443 U.S. at 326; Zuniga v. State , 551 S.W.3d 729 , 733 (Tex. Crim. App. 2018).
A PPLICABLE L AW FOR E STABLISHING C RIMINAL N EGLIGENCE A person commits criminally neglige nt homicide if he causes the death of another by criminal negligence. T EX
. P ENAL C ODE A NN
. § 19.05(a)

. “ A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. ” Id . § 6.03(d). “ The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances, as viewed from the actor ’ s standpoint. ” Id

. As the Te xas Court of Criminal Appeals has recently explained: A legally sufficient showing of criminally negligent homicide requires the State to prove that (1) the defendant’ s conduct caused the death of an individual; (2) the defendant ought to have been aware that there was a substantial and unjustifiable risk of death from his conduct; and (3) his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exer cised04

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- under like circumstances. The circumsta nces are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred. Criminal negligence does not require proof of a defendant ’ s subjective awareness of the risk of harm, but rather the defendant ’s awareness of the atten dant circumstances leading to such a risk. The key to criminal negligence is not the actor ’ s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor t o perceive the risk at all. Queeman , 520 S.W.3d at 622

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. A NALYSIS In his brief, Rodriguez argues the evidence is insufficient to support the jury’s verdict because Adolph Isaac Cantu, the owner of the gun, told Rodriguez the gun was not loaded. The State responds Rodriguez acted with criminal negligence in pointing the gun directly at Cerros ’s head, racking the gun, and pulling the trigger. In his recorded statement, Rodriguez admitted he heard the gun being fired by another person earlier that evening, but when he was handling the gun later that evening, Cantu told him the gun was not loaded and no magazine or clip was in the gun. Jacob Arocha , who was present when Cerros was shot, testified he observed Rodriguez and Cantu “playing with the gun ,” “co c king it back and looking to see if there was bullets in it, and looking at the chambers and everything.” Jacob specifically testified Cantu and Rodriguez “took out the whole clip” and “were looking at the clip as well.” Jacob further testified, “T hey were just looking at it, pulling out the clip, looking at the bullets because they just though t it was fun or something.” Jacob then saw Rodriguez point the gun straight at Cerros’s head and heard the shot fired. Cantu admitted he told Rodriguez the gun was unloaded; however, his definition of unloaded was that a round w as not in the chamber of the gun. Cantu did not consider a gun to be loaded if a clip or magazine containing bullets was in the gun but a round was not in the chamber of the gun . Can tu testified after he told Rodriguez the gun was not loaded, Rodriguez “cocked the
gun , and then he pointed by her head and he pulled the trigger.” Cantu stated Rodriguez loaded a04

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- bullet into the chamber of the gun when he cocked the gun or racked the sli de of the gun. In his recorded statement, Rodriguez admitted he racked the slide of the gun. In response to whether he had ever seen Rodriguez point a gun at anyone else, Cantu testified he previously saw Rodriguez point a gun at his sister. Cantu further testified he told Rodriguez not to “be pointin g the g un at people like that.” Cantu also testified a few seconds passed between the time he handed Rodriguez the gun and when Rodriguez “ pointed the gun at her and loaded it” and t he gun discharged.
I n his recorded statement , Rodriguez admitted he previously had handled a gun . Nicholas Arocha, Jacob’s brother who was not present the night of the shooting, testified he saw Rodriguez with a firearm on three prior occasions. O n those occasions, Nichol as saw Rodriguez point the gun at people’s heads and backs and pull the trigger. In response, Nicholas instructed Rodriguez on gun safety, told him that was dangerous to do, and also told him a gun is “not a toy to be playing with.” Detective Lawrence Sa iz, who interviewed Rodriguez and took his statement, testified he believed Rodriguez had a working knowledge of the gun since he could describe how to rack the slide but denied squeezing the trigger. Detective Saiz also believed Rodriguez reck lessly disc harged the firearm , stating even if Rodriguez thought the gun was unloaded, racking the gun, pointing it towards a person, and pulling the trigger is reckless. Finally, Detective Saiz believed Rodriguez was aware of the risk because: (1) he asked if the g un was unloaded; (2) he knew about operating the gun by racking the slide; and (3) when asked what he knew about gun safety, he stated never have your finger on the trigger. Detective Rachel Barnes, the lead detective in the investigation, also testified it is “reckless to point a firearm at somebody and pull the trigger regardless of what you think the capability of th at gun at that moment. And he pointed the gun at this girl’s head from behind.” In response to04

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- whether a substantial risk exists with an unloaded gun, Detective Barnes responded, “You have a substantial risk any time that you do have a firearm and you point it. It is a deadly weapon. So without you actually checking the firearm yourself, it’s always a substantial risk.” It is undisputed that Rodriguez’s conduct caused Cerros’s death. Because Rodriguez was previously warned of the danger of pointing a gun at someone and pulling the trigger, he was aware “of the attendant circumstances leading to [the] risk” of death by ra cking a gun, pointing it at
Cerros’s head, and pulling the trigger. Queeman , 520 S.W.3d at 633. Therefore, we hold the evidence is legall y sufficient to support a finding that: (1) Rodriguez “ ought to have been aware that there was a substantial and unju stifiable risk of death from his conduct; ” and ( 2 ) “ his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exer c ised under like circumstances.” Id . at 622. Accordingly , the evidence is legal ly sufficient to support the jury’s verdict.
C ONCLUSION The trial court’s judgment is affirmed. Sandee Bryan Marion, Chief Justice
DO NOT PUBLISH