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 erre d by denying his request for lesser

- included offense instruction s . We affirm.I. B ACKGROUND 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 effor ts 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 fir st 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 mad e to police later that evening , appellant claimed that he shot at Regg ie 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. Accordi ng to appellant, these individuals came looking for Reggie or Boogie , from who m 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 Reg gie, t he 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 kil l” 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 becau se 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.

2According to appellant, Reggie and Boogie confronte d 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. A ppellant 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 twic e at him

. Appellant said he responded to their threat to his life and his family by crouching behind his car and s hooting 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 . H e tol d 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. How ever, 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 t he neighbor saw appellant in his driveway, he saw som eone 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

3running t owards 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

o fficers 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 o n 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. Th is 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 cal iber 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
G SR 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 punishm ent at 15 years ’ confinement in the Institutional Division of the Texas

4Department of Criminal Justice. The trial court entered judgment on the jury’s verdict, and this appeal followed.

II. S UFFICIENCY OF THE E VIDENCE 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 deter mining 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 r ational 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 self

defense 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, 9 13

– 14 (Tex. Crim. App. 1991) (en banc))

. The jury is the sole judge of the witnesses’
credibili ty 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.”
Sorrel ls v. State , 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quotation omitted).

5A person commits murder when he intentionally 2 or knowingly 3 causes the death of another person, or if he intends to cause serious bodily injury and commits an act clearly dange rous 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 tha t 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 com mission of the
offense. Pitonyak v. State , 253 S.W.3d 834, 844 (Tex. App.

— Austin 2008, pet. ref’d).
Generally, a person is justifi ed 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

nece ssary to pr otect 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 prot ect the actor against

2 A person acts intentionally with respect to a result of his conduct when it is his conscious objecti ve 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).

6the 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 self

defense 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
commi ssion 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.

V iewing 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 i ntentional acts of retrieving a firearm and loading it before engaging in the encounter with Reggie and Boogie. Further,

7appellant admittedly chased after Reggie and Boogie when they fled from his front porch, and appellant fired his gun in their directio n. 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 jur y 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 mur der.
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 j uror could have found the essential elements of murder beyond a
reasonable doubt. We thus overrule this portion of appellant’s first issue.

F or 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 persuasio n 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 , 8 04 S.W.2d at 913

– 14. Here, the only evidence that appellant acted in self defense comes from his statement to police.
And , a lthough 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

8evidence of gunshots indicates the shots were fired away from appell ant’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 Sell s 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 evid ence 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 ration ally concluded that the defend ant’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 resusc itate 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 hopi ng 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 murde r beyond a reasonable doubt. Accordingly, we overrule the entirety of appellant’s first issue

.

9III. A LLEGED C HARGE E RROR In his second issue, appellant urges that the trial court erred by refusing his request to include the lesser

- included offenses of involun tary 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

- incl uded

- 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 lesse r
included 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). M urder is committed with the culpable mental state of

10“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 relev ant 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 an d that he was “crouched” behind his car when he fired in Reggie’s direction, coupled with his attempts to assist in resuscit ating Reggie after the shooting , are sufficient to raise the lesser

- included offenses of involuntary manslaughter and criminally neg ligent 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 “ r ecklessness” 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 pe rson 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 load ed 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

11evidence shows t hat 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
mansla ughter.

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, th e 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 o ccur. 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).

12Here, there is no evidence in the r ecord 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 do or, 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
nei ghbor 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 grou nds , 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 becau se 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. C ONCLUSI ON 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

13criminally negligent homicide. We have thus overruled both of appellant’s issues. Accordingly, w e affirm the trial court’s judgment.

/s/ Sharon McCally Justice

Panel consists of Chief Justice Frost and Justices Boyc e and McCally

. Do Not Publish

— Tex. R. App. P

. 47.2( b).

14