Affirmed and Memorandum Opinion filed March 26, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00958-CR

JAIRO UMANZOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1349385

MEMORANDUM OPINION

A jury convicted appellant Jairo Umanzor of murder and sentenced him to 

fifteen years’ imprisonment. In two issues, he challenges the sufficiency of the 

evidence to support his conviction and asserts that the trial court erred by denying 

his request for lesser-included offense instructions. We affirm.
I. BACKGROUND

On the evening of May 29, 2012, appellant shot the decedent, Reggie 

Sheppard, Jr., in the back. After shooting Reggie, appellant tried to help in 

resuscitation efforts before emergency workers arrived. Reggie’s father heard 

appellant say, “Hey, hold on man. Don’t die. Don’t die. Don’t die, man. Please 

don’t die.” Despite appellant’s and Reggie’s father’s efforts, Reggie died at the 

scene. Appellant told the first responding officers that three black men were 

involved in the shooting and they left in a blue Ford. However, a neighbor 

implicated appellant in the shooting. 

In a statement he made to police later that evening, appellant claimed that he 

shot at Reggie and a man called “Boogie” in defense of himself and his family 

because they had come to his front door armed and threatening him. Appellant

asserted that, earlier in the evening, three individuals had stopped by his house 

looking to buy drugs. According to appellant, these individuals came looking for

Reggie or Boogie, from whom appellant had bought drugs before. Appellant told 

police that he later went outside to smoke a marijuana cigarette and saw these three 

people “jump” Reggie. After jumping Reggie, the three individuals fled in their 

vehicle. Appellant stated he saw Reggie get up and go to Boogie’s house, yelling 

that he was going to get a gun. According to appellant, he knew that the two were 

going to blame him for the fight and “come and kill” him, so he told his wife to 

hide with their children. Appellant stated he was in fear for his life, so he got his 

gun. Appellant explained to police that Reggie and Boogie came to his house and 

knocked on his door. He claimed he opened the door because he didn’t want them 

to come into his house and kill him in front of his children.1

 

1 Appellant later said that his front door “opened” when Reggie and Boogie were

“beating” on it.

2

 
According to appellant, Reggie and Boogie confronted him because they 

were looking for the individuals who had “jumped” Reggie. Appellant claimed 

that Boogie put a gun in his face and threatened him; appellant claimed that Reggie 

also had a gun in his hand. Appellant knocked Boogie’s gun out of his face and 

told them “don’t do it.” They ran away while shooting at him; appellant initially

stated they shot at least twice at him. Appellant said he responded to their threat to 

his life and his family by crouching behind his car and shooting at Reggie and 

Boogie as they “scattered.” Appellant explained that he was unable to see where 

he was shooting when he fired his gun. Later, he claimed it happened “so fast” 

that he couldn’t remember whether they shot at him or whether Reggie actually 

had a gun. According to appellant’s statement, after the shooting stopped, he went 

inside his house and told his wife to leave. He told her to take the gun and “dump 

it.” He then went across the street to try to help Reggie. Appellant’s story to 

police shifted incrementally throughout; when they confronted him with evidence 

inconsistent with his story, he made minor changes to it. However, he consistently 

asserted that he was in fear for his life when he got his gun and went to his front 

door.

One of appellant’s neighbors testified that he heard a gunshot and went to 

his window. This witness testified that he saw appellant standing in his driveway, 

close to his car, with his hand extended as if firing a gun. This witness did not see 

appellant shooting, but he saw him positioned with his hand out and heard several 

gunshots. Before the neighbor saw appellant in his driveway, he saw someone 

running away. The neighbor was unable to tell whether the person running away 

was carrying a weapon. Another witness saw Reggie running across her driveway; 

the witness did not see Reggie carrying a gun. Finally, Reggie’s father saw Reggie 

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running towards his house; he stated that Reggie was not carrying a gun and did 

not own a gun.

Houston Police Department (HPD) crime scene investigators discovered 

several spent shells and bullets at the scene. Most of the bullets and casings were 

.45 caliber, but they found one .40 caliber bullet near appellant’s porch. HPD 

officers found both .45 caliber and .40 caliber bullets inside appellant’s home, 

strewn across the floor and in a drawer in a bedside table. The manufacturer of the 

.40 caliber bullet found on appellant’s porch matched the manufacturer of the .40 

caliber bullets found inside appellant’s home. An HPD firearms examiner 

determined that two fired .45 caliber bullets found at the scene matched the .45 

caliber bullet that caused Reggie’s death. This examiner also determined that six 

fired .45 caliber auto cartridge bullets found at the scene near appellant’s driveway 

were fired from the same gun. The examiner stated that the .40 caliber bullet could 

have been fired from the same gun as the .45 caliber bullets had been, but it did not 

show signs of expansion that ordinarily would have been present had this occurred.

Gunshot residue (GSR) was found on both of appellant’s hands and on 

Reggie’s right hand. This GSR was consistent with activities such as firing a 

weapon, being in close proximity to a firearm during discharge, or handling a 

firearm, a fired cartridge, or some other surface bearing GSR. The manager of the 

Harris County Institute of Forensic Sciences, who was responsible for testing the 

GSR in this case, could not rule out secondary transfer of the GSR from one person 

to another.

A jury convicted appellant of murder, implicitly rejecting his claim of self 

defense. After hearing evidence at punishment, the jury assessed appellant’s 

punishment at 15 years’ confinement in the Institutional Division of the Texas 

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Department of Criminal Justice. The trial court entered judgment on the jury’s 

verdict, and this appeal followed. 

II. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant challenges the sufficiency of the evidence to 

support his conviction. In particular, he contends that a rational jury could not 

have found he acted intentionally or knowingly or that he did not act in self 

defense.

A. Standard of Review and Governing Law

“In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light most 

favorable to the verdict and determine whether, based on that evidence and 

reasonable inferences therefrom, a rational fact finder could have found the 

essential elements of the crime beyond a reasonable doubt.” Winfrey v. State, 393 

S.W.3d 763, 768 (Tex. Crim. App. 2013) (quotation omitted). When an appellant 

challenges the sufficiency of the evidence to support the jury’s rejection of a selfdefense claim, we similarly must determine whether “any rational trier of fact 

would have found the essential elements of murder beyond a reasonable doubt and 

also would have found against appellant on the self-defense issue beyond a 

reasonable doubt.” Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.—Houston 

[14th Dist.] 2014, pet. ref’d) (citing Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. 

Crim. App. 1991) (en banc)). The jury is the sole judge of the witnesses’ 

credibility and the weight to be given their testimony. Winfrey, 393 S.W.3d at 768. 

“Circumstantial evidence is as probative as direct evidence in establishing the guilt 

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” 

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quotation omitted). 

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A person commits murder when he intentionally2 or knowingly3 causes the 

death of another person, or if he intends to cause serious bodily injury and commits 

an act clearly dangerous to human life that causes the death of an individual. Tex. 

Penal Code Ann. § 19.02(b). The State may prove a defendant’s criminal 

culpability by either direct or circumstantial evidence, coupled with all reasonable 

inferences from that evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. 

App. 2009). By statute, a firearm is a deadly weapon. Tex. Penal Code Ann. 

§ 1.07(17)(A). “The jury may infer the intent to kill from the use of a deadly 

weapon unless it would not be reasonable to infer that death or serious bodily 

injury could result from the use of the weapon.” Jones v. State, 944 S.W.2d 642, 

647 (Tex. Crim. App. 1996). Further, in determining a defendant’s guilt, a jury 

may consider events that occurred before, during, and after the commission of the 

offense. Pitonyak v. State, 253 S.W.3d 834, 844 (Tex. App.—Austin 2008, pet. 

ref’d).

Generally, a person is justified in defending against another’s use of deadly 

force. See Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). Under the 

Penal Code, a person is justified in using deadly force (1) if he would be justified 

in using force against the other under section 9.31 of the Texas Penal Code, and 

(2) when and to the degree he reasonably believes the deadly force is immediately 

necessary to protect himself against the other’s use or attempted use of unlawful 

deadly force. Tex. Penal Code Ann. § 9.32(a)(1), (a)(2)(A). Section 9.31 of the 

Penal Code justifies a person to use force “when and to the degree the actor 

reasonably believes the force is immediately necessary to protect the actor against 

2 A person acts intentionally with respect to a result of his conduct when it is his

conscious objective or desire to cause the result. Tex. Penal Code Ann. § 6.03(a).

3 A person acts knowingly with respect to a result of his conduct when he is aware that 

his conduct is reasonably certain to cause the result. Id. § 6.03(b).

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the other’s use or attempted use of unlawful force.” Id. § 9.31(a). Once a 

defendant produces some evidence of self defense, the burden shifts to the State to 

disprove this defense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. This 

burden of persuasion does not require the State to produce evidence to refute the 

self-defense claim, but requires only that it prove its case beyond a reasonable 

doubt. Id. 

Because self defense is an issue of fact to be determined by the jury, the jury 

is free to accept or reject the defensive issue. Medina v. State, 411 S.W.3d 15, 21 

(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Saxton, 804 S.W.2d at 

913–14). A jury’s guilty verdict is an implicit rejection of the appellant’s selfdefense claim. Saxton, 804 S.W.2d at 914.

B. Application

Appellant first asserts that he lacked the culpable mental state to be 

convicted of murder. Appellant does not dispute that he used a firearm in the 

commission of this offense; instead, he relies almost entirely on his statement to 

police, in which he claimed he did not intend to kill anyone and was not shooting 

“at” anyone.

Viewing the evidence in the light most favorable the jury’s verdict,

including the statement appellant made to police, the jury could have inferred 

appellant intentionally or knowingly caused Reggie’s death or intended to cause 

serious bodily injury and committed an act clearly dangerous to human life that 

caused Reggie’s death based on the following evidence. First, appellant admitted 

that he intentionally got his gun and loaded it before he opened the door to Reggie 

and Boogie. Although appellant claimed he was in fear for his life and for his 

family, that fear does not undercut his intentional acts of retrieving a firearm and 

loading it before engaging in the encounter with Reggie and Boogie. Further, 

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appellant admittedly chased after Reggie and Boogie when they fled from his front 

porch, and appellant fired his gun in their direction. Additionally, appellant lied to 

the police at the scene about who the perpetrator was in an apparent effort to hide 

his involvement, and appellant gave the murder weapon to his wife and told her to 

“dump it,” which she did. From this evidence, the jury could have inferred that 

appellant was conscious of his guilt. See King v. State, 29 S.W.3d 556, 565 (Tex. 

Crim. App. 2000) (recognizing, in a sufficiency review, the jury may consider 

evidence showing consciousness of guilt). Finally, appellant stated that he killed 

Reggie in self defense, acknowledging that he shot Reggie, but claiming he did so 

in fear for his life and his family. All of these factors support the jury’s inference 

that appellant possessed the culpable mental state associated with murder. 

Under these circumstances, it was not unreasonable for the jury to infer the 

intent to kill from appellant’s use of a deadly weapon. Jones, 944 S.W.2d at 647. 

Based on the evidence and reasonable inferences therefrom, we conclude that a 

rational juror could have found the essential elements of murder beyond a 

reasonable doubt. We thus overrule this portion of appellant’s first issue.

For many of these same reasons, we further conclude that a reasonable jury 

could have rejected appellant’s claim of self defense. As noted above, although the 

State bears the burden of persuasion to disprove the issue of self defense, the State 

is not required to affirmatively present evidence that specifically refutes the 

defendant’s self-defense evidence. Saxton, 804 S.W.2d at 913–14. Here, the only 

evidence that appellant acted in self defense comes from his statement to police. 

And, although he claimed, at first, that Reggie and Boogie confronted him at his 

front door and shortly thereafter began shooting at him, appellant later backed 

away from this claim and stated he was not sure if they had fired at him. Further, 

there is no evidence of any gunshots fired towards appellant’s house; the only 

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evidence of gunshots indicates the shots were fired away from appellant’s house. 

And, the only bullets and casings found at the scene matched the type of unfired 

bullets found in appellant’s house. A defendant’s own statement regarding his 

intent is not enough to render the evidence, without more, insufficient. See Sells v. 

State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003) (holding that only evidence 

weighing against jury finding that defendant entered home with no specific intent 

to commit sexual assault was defendant’s own statement, which was not enough to 

render evidence insufficient). Appellant also admitted to leaving his home and 

chasing after Reggie and Boogie as they “scattered.” Cf. Cleveland v. State, 177 

S.W.3d 374, 387 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (holding that 

the jury could have rationally concluded that the defendant’s claim of self defense 

was defeated when he continued to stab the complainant in the back as she lay 

bleeding on the floor). 

As noted above, appellant instructed his wife to dispose of the gun he used 

to shoot at Reggie and Boogie as they fled, and he lied to police when they arrived 

at the scene, misdirecting them to other alleged perpetrators. This evidence 

indicates a consciousness of guilt. See King, 29 S.W.3d at 565. And even though

appellant tried to help resuscitate Reggie shortly after the incident and was 

overheard pleading for Reggie not to die, this evidence could be viewed to bolster 

an inference of appellant’s awareness that he had intentionally committed an act 

clearly dangerous to human life and was hoping that his actions would not result in 

Reggie’s death. 

In short, viewing the evidence in the light most favorable to the jury’s 

verdict, we conclude that a rational jury could have rejected appellant’s claim of 

self defense and found him guilty of murder beyond a reasonable doubt. 

Accordingly, we overrule the entirety of appellant’s first issue.

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III. ALLEGED CHARGE ERROR

In his second issue, appellant urges that the trial court erred by refusing his 

request to include the lesser-included offenses of involuntary manslaughter and 

criminally negligent homicide in the jury charge. 

A. Standard of Review and Governing Law

We review alleged charge error by considering two questions: (1) whether 

error existed in the charge; and (2) whether sufficient harm resulted from the error 

to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). 

The degree of harm necessary for reversal under the second inquiry depends on 

whether the appellant preserved the error. Id. When error in the jury charge is 

preserved, as here, reversal is required if the error is “‘calculated to injure the 

rights of the defendant,’ which means no more than that there must be some harm 

to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. 

App. 1984) (quoting Tex. Code Crim. Proc. Ann. art. 36.19). Reversal is required 

if we find “some actual, rather than merely theoretical, harm from the error.” 

Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999).

“The determination of whether a lesser-included-offense instruction 

requested by a defendant must be given requires a two-step analysis: (1) Is the 

requested charge for a lesser-included offense of the charged offense? (2) Is there 

trial evidence that supports giving the instruction to the jury?” Rice v. State, 333 

S.W.3d 140, 144 (Tex. Crim. App. 2011). The first step is a question of law and 

does not depend on the evidence produced at trial. Id. We agree with the parties 

that involuntary manslaughter and criminally negligent homicide are lesserincluded offenses of murder: the only difference between these offenses is the 

culpable mental state. See Navarro v. State, 83 S.W.2d 191, 203 (Tex. App.—

Austin 1993, pet. ref’d). Murder is committed with the culpable mental state of 

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“intentional” or “knowing,” manslaughter is committed with the culpable mental 

state of “recklessness,” and criminally negligent homicide is committed with the 

culpable mental state of criminal “negligence.” See Tex. Penal Code Ann. 

§§ 19.02, 19.04, 19.05. Thus, the relevant inquiry in this case is whether there is 

some evidence that the defendant is guilty of only the lesser-included offense. 

Rice, 333 S.W.3d at 145.

B. Application

Appellant contends that his statements to police that he did not intend to kill 

Reggie and that he was “crouched” behind his car when he fired in Reggie’s

direction, coupled with his attempts to assist in resuscitating Reggie after the 

shooting, are sufficient to raise the lesser-included offenses of involuntary 

manslaughter and criminally negligent homicide. 

1. Involuntary Manslaughter

A specific intent to kill is not an element of involuntary manslaughter. See 

Johnson v. State, 915 S.W.2d 653, 658 (Tex. App.—Houston [14th Dist.] 1996, 

pet. ref’d). Instead, the mental state of “recklessness” is satisfied by evidence 

showing that the defendant consciously disregarded a known substantial and 

unjustifiable risk that serious bodily injury would occur; a risk that if disregarded 

constitutes a gross deviation from the standard of care an ordinary person would 

exercise under the same circumstances. Tex. Penal Code Ann. § 6.03(c). Here, 

appellant stated that he retrieved and loaded his gun before answering the door 

when Reggie and Boogie knocked. He further stated he was aware he was pointing 

a loaded gun towards Reggie when Reggie was running away. After the shooting, 

appellant instructed his wife to dispose of his gun. He lied to police when they 

arrived at the scene, and appellant attempted to cast blame on others. None of this 

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evidence shows that appellant recklessly caused Reggie’s death;

4 rather this 

evidence shows that appellant intentionally aimed a loaded deadly weapon in the 

direction of a fleeing individual and pulled the trigger. Appellant’s statement, 

when viewed along with the other evidence, is not evidence that would permit a 

jury rationally to find that if he is guilty, he is guilty only of involuntary 

manslaughter. Cf. Johnson, 915 S.W.2d at 658–59 (“Though appellant testified 

that he shot Freeman only to make Freeman get ‘off of him,’ this is not testimony 

that appellant’s actions were anything other than deliberate.”). 

Under the facts of this case, the trial court did not err by denying appellant’s 

request for an instruction on the lesser-included offense of involuntary 

manslaughter. 

2. Criminally Negligent Homicide

The record also lacks evidence that appellant is only guilty of criminally 

negligent homicide. That offense requires that a person act with criminal 

negligence, which involves “inattentive risk creation, that is, the actor ought to be 

aware of the risk surrounding his conduct or the results thereof.” Lugo v. State, 

667 S.W.2d 144, 147–48 (Tex. Crim. App. 1984); see also Tex. Penal Code Ann.

§ 6.03(d) (defining criminal negligence); id. § 19.05 (offense of criminally

negligent homicide). Thus, for a defendant to be entitled to a jury charge on 

criminally negligent homicide, the record must contain “some evidence” that the 

defendant did not intend the resulting death or did not know that it was reasonably 

certain to occur. Miller v. State, 177 S.W.3d 177, 182 (Tex. App.—Houston [1st 

Dist.] 2005, pet. ref’d). If such evidence is present, the record also must contain 

evidence showing that the defendant was unaware of the risk. Id.

4 See Tex. Penal Code Ann. § 19.04(a).

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Here, there is no evidence in the record that appellant did not know Reggie’s 

death was reasonably certain to occur when he fired numerous bullets in Reggie’s 

direction as Reggie fled. Indeed, as discussed above, appellant stated that he

intentionally loaded his gun before answering the door, believing that a 

confrontation was about to ensue with Reggie and Boogie and intending to protect 

himself and his family. Appellant’s neighbor saw appellant standing in his 

driveway, seemingly pointing a gun, and the neighbor heard gunshots as the 

neighbor observed an individual running away from appellant. Appellant provided 

no evidence that he was unaware of the risk of Reggie’s death when he pointed a 

loaded gun and fired at Reggie while Reggie was fleeing. See id.; Lafleur v. State, 

84 S.W.3d 309, 311 (Tex. App.—Beaumont 2002) (concluding that appellant was 

not entitled to charge on lesser-included offense of criminally negligent homicide 

because appellant admitted to shooting and did not claim that he was unaware of 

any risk), rev’d on other grounds, 106 S.W.3d 91 (Tex. Crim. App. 2003); 

Johnson, 915 S.W.2d at 658 (concluding that appellant was not entitled to charge 

on lesser-included offense of criminally negligent homicide because appellant’s 

defense was self defense, not an unawareness of risk in exhibiting a loaded gun).

For the foregoing reasons, we conclude that the trial court did not err in 

denying appellant’s request for a lesser-included offense instruction on criminally 

negligent homicide. We overrule appellant’s second issue.

IV. CONCLUSION

We have determined that sufficient evidence supports appellant’s conviction 

for murder and that the evidence did not establish that, if appellant was guilty, he 

was only guilty of the lesser-included offenses of involuntary manslaughter or 

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criminally negligent homicide. We have thus overruled both of appellant’s issues. 

Accordingly, we affirm the trial court’s judgment.

/s/ Sharon McCally

Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

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