NO. 12-17-00301-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LOUISE ANDERSON, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEAL FROM THE 7TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Louise Anderson appeals her conviction for murder. In one issue, she argues that the trial 

court erred in denying her request for a jury instruction on the lesser included offense of 

manslaughter. We affirm.

BACKGROUND

Appellant was indicted for the murder of her boyfriend, John Pierce. She entered a plea 

of “not guilty” and the case proceeded to a jury trial. The State presented evidence that 

Appellant and Pierce were at a game room on December 14, 2015, the day of the murder. That 

evening, Appellant and Pierce got in an argument in the parking lot of the game room. During 

the argument, Appellant retrieved a firearm from her vehicle and shot Pierce one time in the 

chest. Pierce was taken to the hospital where he died from the gunshot wound. 

At the scene, Appellant told several witnesses that Pierce physically assaulted her prior to 

her shooting him. She told investigators that, at the time of the shooting, she was seated in the 

driver’s seat of her car and Pierce was standing next to her door, trying to pull her out of the car 

by her arm. At trial, Appellant claimed she acted in self-defense and the jury was instructed on 

the issue of self-defense. However, Appellant also requested a jury instruction on the lesser 

included offense of manslaughter. The State opposed a manslaughter instruction, and the trial 
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court declined to include the instruction in the charge. The jury found Appellant “guilty” and 

sentenced her to forty years of imprisonment. This appeal followed. 

JURY INSTRUCTION

In Appellant’s sole issue, she argues the trial court erred by failing to include an 

instruction on the lesser included offense of manslaughter. She contends she was entitled to the 

charge based on evidence that (1) she only fired one shot, (2) she testified to not wanting to shoot 

Pierce, and thought she shot him in the leg, (3) she told the 9-1-1 operator she thought she shot 

him in the leg, (4) she tried to follow life-saving instructions from the 9-1-1 operator, and (5) 

when she could not manage on her own, she ran inside and asked for help.

The State argues that Appellant’s theory of self-defense necessarily required her to admit 

to intentionally causing Pierce’s death. The State further argues that even if Appellant’s claim of 

self-defense did not preclude her from receiving a manslaughter instruction, the evidence does 

not support a manslaughter instruction.

Standard of Review and Applicable Law

We review the trial court’s denial of a lesser-included offense instruction for an abuse of 

discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). Upon the 

defendant’s request, the trial court must include a lesser-included offense instruction in the jury 

charge when (1) the requested charge is for a lesser-included offense of the charged offense; and 

(2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. 

Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). When determining whether the 

trial court properly denied a request for a lesser-included offense instruction, we review all of the 

evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). 

Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a jury 

instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. 

App. 2012). “Although this threshold showing is low, ‘it is not 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.’” Sweed v. State, 351 S.W.3d 63, 68 

(Tex. Crim. App. 2011) (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 

1997)). “[T]he standard may be satisfied if some evidence refutes or negates other evidence 
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establishing the greater offense or if the evidence presented is subject to different 

interpretations.” Id. 

The Evidence

There was no dispute at trial that Appellant shot Pierce. After the State presented 

evidence, Appellant testified on her own behalf. She testified that Pierce started an argument 

with her earlier in the day and the argument was left unresolved. According to Appellant, she 

went to the game room that evening without knowing that Pierce would be present. She testified 

Pierce accosted her in the parking lot when she arrived at the game room and that Pierce became 

increasingly aggressive, both verbally and physically. She testified that Pierce threatened her 

and her family, and slapped, choked, shoved, and hit her. Appellant explained that the incident 

culminated in her shooting Pierce:

Q: And then what happened? 

A: I’m holding onto my steering wheel. He’s pulling me by my left arm. And I hung onto the 

steering wheel, trying to keep him from pulling me out of the car. And I told him, “Stop. You’re 

hurting my arm. Let me go.” He’s like, “Get your ass out of the car.” And I was like, “No, I’m not 

going with you.” He’s like, “Get your ass out of the car.” I told him, “No, let me go. Please, John. 

Just stop. Let me go. I’m done.” And he wouldn’t stop pulling me. So I don’t know even know 

what came over me. I was just like, “Okay. Okay. Stop. I’ll get out. Let me get out by myself. 

I’ll get out.” And he let me go. So when he did, I repositioned myself in my car. And when I 

repositioned myself, I put my arm on the arm rest. And when I put my arm on my arm rest, I 

remembered that I had my gun in my car. And I opened my console. And when I opened my 

console, I made up my mind I was not getting out of the car. And I reached out to close my door. 

John’s standing there. And I told him, I said, “John, please move. Let me go. Don’t hit me 

anymore. Let me go.” 

Q: What did he do?

A: He told me to get my ass out of the car. And I told him, I said, “No, I’m not going.” And I 

went to reach out, close the door. And he told me, if the door hit him, he would kill me. I’m 

pulling the door. The door hits him. And he reaches in and hits me upside the head.

Q: Hit you upside of your head?

A: Yes.

Q: What did you do?

A: I just reached over into my console, got my pistol, and fired one shot.

Appellant testified that after she shot Pierce, she called 9-1-1. She told Pierce to “hang on” and 

“I didn’t want to shoot you...[I] asked you to stop hitting me.” She further stated that she told 
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the 9-1-1 operator that she thought she shot Pierce in the leg. She clarified that she was not 

looking at Pierce when she shot him, but just grabbed the gun and shot quickly. Appellant 

testified that she did not intend to kill Pierce, and did not know that he would die when she 

pulled the trigger. 

However, Appellant admitted that the shooting was not an accident, and that she shot 

Pierce to stop him. On cross examination, the following exchange occurred:

Q: I understand. You didn’t want him to die, correct?

A: No, I didn’t.

Q: After you shot him—

A: I didn’t want to shoot him. I just wanted him to let me go home and leave me alone. 

That’s all I wanted.

Q: Would you agree with me that you knew that shooting him with a firearm could cause 

serious bodily injury or death?

A: Yeah, I knew that.

...

Q: Are you aware that when you pulled the trigger of the 9-millimeter, pointed it at your 

boyfriend, that it was reasonably certain to cause his death or serious bodily injury?

A: Yes, I know shooting somebody could do that.

The State theorized that Appellant shot Pierce because she was angry and jealous. The 

State presented evidence that Appellant was jealous over Pierce’s relationships with other 

women. Further, the State’s evidence contradicted Appellant’s explanation of how the shooting

took place. The State pointed out that investigating officers observed no marks or injuries on 

Appellant the night of the murder, despite her description of a violent encounter prior to the 

shooting. Further, the medical examiner testified that the trajectory of the bullet through Pierce’s 

body was front to back, left to right, and downward. The State’s crime scene expert, Investigator 

Noel Martin with the Smith County Sheriff’s Department, testified the evidence was inconsistent 

with Appellant’s testimony that she shot Pierce, who was standing, from a seated position. 

Analysis

Murder is a “result of conduct” offense, thus, the culpable mental state relates to the 

result of the conduct, i.e., the causing of the death. Schroeder v. State, 123 S.W.3d 398, 400 
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(Tex. Crim. App. 2003). A person commits murder if she intentionally or knowingly causes the 

death of an individual. TEX. PENAL CODE ANN. § 19.02 (b)(1) (West 2011). A person acts 

knowingly, or with knowledge, with respect to the result of her conduct when she is aware that 

her conduct is reasonably certain to cause the result. Id. § 6.03 (b) (West 2011).

Manslaughter is a lesser-included offense of murder because manslaughter differs from 

murder only in that it requires a less culpable mental state to establish its commission—

recklessness—as opposed to intent. See Gahagan v. State, 242 S.W.3d 80, 89 (Tex. App.—

Houston [1st Dist.] 2007, pet ref’d); see also TEX. CODE CRIM. PROC. ANN. art. 37.09 (3) (West 

2006). A person commits manslaughter if she recklessly causes the death of another. TEX.

PENAL CODE ANN. § 19.04(a) (West 2011). A person acts recklessly, or is reckless, with respect 

to circumstances surrounding her conduct or the result of her conduct when she is aware of but 

consciously disregards a substantial and unjustifiable risk that the circumstances exist or the 

result will occur. Id. § 6.03(c). The risk must be of such a nature and degree that its disregard 

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. In order for a defendant to 

be entitled to a jury charge on manslaughter, the record must contain some evidence that the 

defendant did not intend the resulting death or know that it is reasonably certain to occur. 

Burnett v. State, 865 S.W.2d 223, 229 (Tex. App.—San Antonio 1993, pet. ref’d). 

Here, Appellant was charged with intentionally or knowingly causing the death of Pierce 

by shooting him with a firearm and by committing an act clearly dangerous to human life with 

the intent to cause serious bodily injury by shooting Pierce with a firearm. See TEX. PENAL 

CODE ANN. § 19.02 (b)(1), (2). The State does not dispute that manslaughter is a lesser-included 

offense in this case. 

Appellant testified that she shot Pierce to “stop him” and requested and received a jury 

charge on the justification of self-defense. Generally, a manslaughter instruction will not be 

warranted when the accused testifies to acting in self-defense. See Avila v. State, 954 S.W.2d 

830, 843 (Tex. App.—El Paso 1997, pet. ref’d) (manslaughter charge not warranted when 

appellant testified he saw wife brandish a firearm, so picked up his own firearm, aimed it at wife, 

and fired a number of rounds); Mock v. State, 848 S.W.2d 215, 219 (Tex. App.—El Paso 1992, 

pet ref’d) (“One cannot accidentally or recklessly act in self–defense.”); Nevarez v. State, 270 

S.W.3d 691, 695 (Tex. App.—Amarillo 2008, no pet.) (where defendant in murder trial admitted 
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purposefulness of actions that led to death and argued self-defense, he was not also entitled to 

manslaughter charge); Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st Dist.] 

2000, pet. ref’d) (same).1 This is because intentional conduct is implicit in a claim of selfdefense; thus, a defendant’s testimony that she acted in self-defense effectively precludes an 

instruction that she committed manslaughter by acting recklessly. See Avila, 954 S.W.2d at 843. 

However, even had Appellant not claimed self-defense, there is no evidence in the record 

that if Appellant is guilty, she is only guilty of manslaughter. While the threshold showing is 

low, there must be evidence directly germane to the lesser included offense for the fact finder to 

consider before a lesser included offense instruction is warranted. See Sweed, 351 S.W.3d at 68. 

Although Appellant testified that she did not intend to kill Pierce and did not want him to die, 

she acknowledged that the shooting was not accidental and she knew shooting Pierce was 

reasonably certain to cause serious bodily injury or death. Appellant unequivocally stated her 

knowledge that firing the gun at Pierce was reasonably likely to result in his death or serious 

bodily injury. Thus, the evidence at trial was undisputed that Appellant acted knowingly when 

she shot Pierce. See TEX. PENAL CODE ANN. §§ 6.03 (b); 19.02 (b)(1); see also Burnett, 865 

S.W.2d at 229. Nor is Appellant’s argument that her actions after the shooting warranted a 

manslaughter instruction cognizable. While her actions in only firing the gun once, calling 9-1-

1, asking for help, and remaining on the scene may demonstrate regret, they do not demonstrate 

that she acted with a reckless mental state when she shot Pierce.

We have reviewed the entire record and conclude that no evidence existed to entitle 

Appellant to an instruction on the lesser-included offense of manslaughter. See Burnett, 865 

S.W.2d at 229; Guzman, 188 S.W.3d at 188; Cavazos, 382 S.W.3d at 38; Rousseau, 855 S.W.2d 

at 673. Thus, the trial court did not abuse its discretion in refusing to include a jury instruction 

on the lesser included offense of manslaughter. See Threadgill, 146 S.W.3d at 666. We overrule 

Appellant’s sole issue.

CONCLUSION

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment. 

 

1

In Alonzo v. State, 353 S.W.3d 778 (Tex. Crim. App. 2011), the Texas Court of Criminal Appeals cited 

this line of cases, recognizing that the courts in Nevaraz, Martinez, and Avila all concluded that the defendants 

therein were not entitled to manslaughter instructions because they claimed at trial they “acted intentionally in selfdefense, not merely recklessly.” Although the Court in Alonzo found these cases inapplicable to the situation it was 

considering, the Court nevertheless expressly stated that it was not calling these cases “into question.” Id. at 782.
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GREG NEELEY

Justice

Opinion delivered June 29, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 29, 2018

NO. 12-17-00301-CR

LOUISE ANDERSON,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 7th District Court 

of Smith County, Texas (Tr.Ct.No. 007-0913-16)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.