Affirmed and Memorandum Opinion filed November 17, 2016.

In The

Fourteenth Court of Appeals

NO. 14-15-00637-CR

JASON CHARLES SAVOY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1426028

M E M O R A N D U M O P I N I O N

In this appeal from a conviction for murder, we consider three issues of 

alleged charge error. The first two issues pertain to requests for lesser-included 

offenses, and the third issue pertains to the trial court’s given instruction on selfdefense. Finding no error with respect to any of the three issues, we affirm the trial 

court’s judgment.
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BACKGROUND

The complainant died after appellant stabbed him in the chest with a 

switchblade. The knife penetrated to a depth of five inches, piercing completely 

through the heart.

The stabbing occurred at a gas station in a neighborhood known for drug 

trafficking. Surveillance cameras recorded the entire incident on video. The 

footage depicts the complainant exiting from the passenger side of a vehicle and 

walking towards a man, later identified as appellant, who was waiting outside the 

storefront. The two men negotiated briefly over the sale of cocaine. After appellant 

delivered the drugs, the complainant attempted to walk back to his vehicle, 

apparently without paying. Appellant moved in front of the complainant to block 

his return to his vehicle. At this point, the complainant gestured towards another 

passenger in the backseat of the vehicle. Appellant then pushed back at the 

complainant, and in a swift movement, stabbed the complainant once in the chest. 

Appellant allowed the complainant to reenter the vehicle and drive away with the 

drugs.

Police quickly identified appellant as a likely suspect and brought him in for 

questioning a few hours after the stabbing. Appellant initially denied any 

involvement in the incident, but after learning that the complainant had died and 

that surveillance cameras had captured everything on video, appellant confessed to 

the stabbing and claimed that he had acted in self-defense. Appellant explained that 

he got into a tussle with the complainant because the complainant refused to pay 

for his drugs. Appellant also claimed that when the complainant gestured towards 

his vehicle, the complainant was telling the rear passenger to shoot and kill 

appellant. According to appellant, that rear passenger had a gun, and appellant 

believed that he was being robbed.
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LESSER-INCLUDED OFFENSES

During the charge conference, appellant requested instructions on the lesserincluded offenses of aggravated assault and manslaughter. The trial court denied 

both requests, and appellant complains of those rulings in his first and second 

issues.

We review complaints of jury-charge error under a two-step process, 

considering first whether error exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. 

Crim. App. 2005). If error does exist, we then analyze that error for harm under the 

procedural framework of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 

1984). 

We apply a two-part test when deciding whether a trial court erred by 

denying an instruction on a lesser-included offense. See Segundo v. State, 270 

S.W.3d 79, 90 (Tex. Crim. App. 2008). First, we consider whether the requested 

offense is a lesser-included offense of the charged offense by comparing the

statutory elements of both offenses. Id.; see also Tex. Code Crim. Proc. art. 37.09.

This analysis is a pure question of law and does not depend on the evidence 

produced at trial. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

Second, if the requested offense is a lesser-included offense, we then consider 

whether there is some evidence in the record from which a rational jury could 

acquit the defendant of the greater offense while convicting him of the lesserincluded offense. See Segundo, 270 S.W.3d at 90–91. If the record contains such 

evidence, then the defendant is entitled to the instruction and the trial court errs by 

denying a request for the instruction. See Thomas v. State, 699 S.W.2d 845, 849 

(Tex. Crim. App. 1985).

When conducting the second part of this error analysis, we review all of the 

evidence presented at trial without considering its credibility or whether it conflicts 
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with other evidence. See Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). 

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

to an instruction on the lesser-included offense. See Hall, 225 S.W.3d at 536. 

However, the evidence must establish the lesser-included offense as a valid, 

rational alternative to the charged offense. See Wesbrook v. State, 29 S.W.3d 103, 

113 (Tex. Crim. App. 2000). If the defendant either presents evidence that he 

committed no offense or presents no evidence, and there is no evidence otherwise 

showing that he is guilty of only a lesser-included offense, a charge on the lesserincluded offense is not required. See Bignall v. State, 887 S.W.2d 21, 24 (Tex. 

Crim. App. 1994).

Aggravated Assault. We begin by comparing the elements of the charged 

offense with the elements of aggravated assault. The indictment alleged two 

theories of murder: (1) that appellant intentionally or knowingly caused the death 

of the complainant by stabbing him with a deadly weapon; and (2) that appellant 

intended to cause serious bodily injury to the complainant and did cause the death 

of the complainant by intentionally or knowingly committing an act clearly 

dangerous to human life, namely, by stabbing the complainant with a deadly 

weapon. See Tex. Penal Code § 19.02(b)(1)–(2). As far as the second theory is 

concerned, serious bodily injury means bodily injury that creates a substantial risk 

of death or that causes death, serious permanent disfigurement, or protracted loss 

or impairment of the function of any bodily member or organ. Id. § 1.07(a)(46). An 

act clearly dangerous to human life is one that objectively creates a substantial risk 

of death. See Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 1983).

A person commits a regular assault if he intentionally, knowingly, or 

recklessly causes bodily injury to another. See Tex. Penal Code § 22.01(a)(1). A 

person commits an aggravated assault if he commits a regular assault, as just 
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defined, and the person further causes serious bodily injury to another. Id.

§ 22.02(a)(1).

The statutory elements of aggravated assault fit within the proof required of 

murder. The only difference between the two offenses is the severity of the injury. 

See Tex. Code Crim. Proc. art. 37.09(2). Accordingly, aggravated assault can be a 

lesser-included offense of murder. See Cardenas v. State, 30 S.W.3d 384, 392 

(Tex. Crim. App. 2000) (“We have recognized that manslaughter, criminally 

negligent homicide and aggravated assault are lesser-included offenses of murder 

and, therefore, of capital murder.”).

We must now consider whether a rational jury could have acquitted

appellant of murder but convicted him of aggravated assault, based on the evidence 

adduced at trial. To satisfy this test, there must be affirmative evidence that both 

raises the lesser-included offense and rebuts or negates an element of the greater 

offense. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).

Appellant refers us to his trial testimony in which he stated that he did not 

intend to kill or hurt the complainant. We conclude that this testimony is 

insufficient, by itself, because it does not rebut or negate the evidence that 

appellant intentionally stabbed the complainant in the chest, which is an act clearly 

dangerous to human life that resulted in the complainant’s death. See Tex. Penal 

Code § 19.02(b)(2). A rational jury could not rely solely on appellant’s testimony 

and still conclude that appellant was not guilty of murder. See Dale v. State, 90 

S.W.3d 826, 833 (Tex. App.—San Antonio 2002, pet. ref’d) (defendant’s 

testimony that he did not intend to kill the complainant did not entitle him to an 

instruction on the lesser-included offense of aggravated assault where there was no 

testimony negating the evidence that he intentionally caused serious bodily injury 

to the complainant by repeatedly kicking the complainant in the head, an act 
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clearly dangerous to human life that resulted in death); see also Cardenas, 30 

S.W.3d at 393 (defendant’s testimony that he “lost it” did not negate the physical 

evidence showing an intent to kill).

Appellant responds that his case is similar to Lawson v. State, 775 S.W.2d 

495 (Tex. App.—Austin 1989, pet. ref’d), in which the court held that the 

defendant’s testimony about his intent was sufficient to warrant an instruction on 

the lesser-included offense. Lawson is distinguishable, however. In that case, the 

defendant testified that he “smacked” the complainant with a loaded pistol, and the 

pistol accidentally discharged. Id. at 496. The defendant’s testimony that the pistol 

accidentally discharged negated the other evidence that the defendant intentionally 

pulled the trigger. Id. at 499–500. There is no comparable evidence in this case 

demonstrating that appellant did not intend to stab the complainant or that he 

accidentally stabbed the complainant.

The trial court did not err by denying the requested instruction for the lesserincluded offense of aggravated assault.

Manslaughter. To obtain a conviction for manslaughter, the State must 

prove that a person recklessly caused the death of another. See Tex. Penal Code 

§ 19.04(a). And to establish recklessness, the State must prove that the person was 

aware of but consciously disregarded a substantial and unjustifiable risk with 

respect to either the nature or result of his conduct. Id. § 6.03(c).

The only difference between causing death while consciously disregarding a 

risk that death will occur (i.e., manslaughter) and intending to cause serious bodily 

injury that results in death (i.e., murder) is that the former requires a lesser culpable 

mental state. See Cavazos, 382 S.W.3d at 384. Therefore, manslaughter can be a 

lesser-included offense of murder. See Tex. Code Crim. Proc. art. 37.09(3).
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We now consider whether there is some evidence from which a rational jury 

could have found appellant guilty of manslaughter but not guilty of murder. This 

condition is satisfied when there is “some affirmative evidence that Appellant did 

not intend to cause serious bodily injury when he [stabbed] the victim” and “some 

affirmative evidence from which a rational juror could infer that Appellant was 

aware of but consciously disregarded a substantial and unjustifiable risk that death 

would occur as a result of his conduct.” See Cavazos, 382 S.W.3d at 385.

As stated above, there is nothing in the record rebutting the evidence that 

appellant intentionally stabbed the complainant. Appellant’s testimony that he did 

not intend to kill or hurt the complainant does not refute the evidence that he 

intended to cause serious bodily injury by stabbing the complainant with a 

switchblade. See Martinez v. State, 16 S.W.3d 845, 848 (Tex. App.—Houston [1st 

Dist.] 2000, pet. ref’d) (intent to hurt a person “with a knife is intent to cause 

serious bodily injury”). Similarly, appellant never testified that he was unaware 

that his switchblade was dangerous or that a person could be seriously injured if 

the person were stabbed in the chest with a switchblade.

Appellant nevertheless contends that he was entitled to an instruction on 

manslaughter because he caused the death of the complainant under the immediate 

influence of sudden passion arising from adequate cause. For this proposition, 

appellant relies on several authorities applying the former statute for voluntary 

manslaughter, the elements of which included sudden passion and adequate cause. 

See Act approved June 19, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. 

Laws 3586, 3614 (deleting the former statutes for voluntary manslaughter and 

involuntary manslaughter and replacing them with the current statute for 

manslaughter).
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Under the current Penal Code, there is no offense for voluntary 

manslaughter, and the elements of manslaughter do not include sudden passion and 

adequate cause. See Tex. Penal Code § 19.04. Accordingly, even if there were 

evidence that appellant had acted under sudden passion arising from adequate 

cause, that evidence would not enable a rational jury to convict appellant of a 

lesser offense than murder. See Cavazos, 382 S.W.3d at 385 (holding that there 

must be evidence “directly germane to recklessness” before the defendant may be 

entitled to an instruction on the lesser-included offense of manslaughter).

Because there is no evidence that appellant did not intend to cause serious 

bodily injury and there is no evidence of recklessness, the trial court did not err by 

denying the requested instruction for manslaughter.

SELF-DEFENSE INSTRUCTION

In his final issue, appellant raises two complaints regarding the trial court’s 

instruction on self-defense. In the first complaint, appellant argues that the trial 

court erred by not clearly explaining that the State had the burden of disproving 

self-defense beyond a reasonable doubt. In the second complaint, appellant argues 

that the trial court erred by having an application paragraph for self-defense that 

was separate and apart from the application paragraph for murder. Appellant did 

not make these objections in the trial court, but he contends that he was 

egregiously harmed by the trial court’s errors. We examine each alleged error in 

turn.

The Burden of Proof. The defendant bears the burden of producing some 

evidence in support of a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 

594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State 

bears the burden of persuasion to disprove that defense. Id. The burden of 
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persuasion is not one that requires the production of evidence. Id. Rather, it 

requires only that the State prove its case beyond a reasonable doubt. Id.

In this case, the self-defense portion of the charge did not specifically 

identify whether appellant had the burden of proving that he acted in self-defense, 

or whether the State had the burden of disproving that he acted in self-defense.

Instead, the charge contained these two application paragraphs:

Therefore, if you find from the evidence beyond a reasonable 

doubt that [appellant] did cause the death of [the complainant], by 

stabbing [the complainant] with a deadly weapon, namely a knife; or 

did cause the death of [the complainant], by stabbing [the 

complainant] with a deadly weapon, namely an unknown sharp object, 

as alleged, but you further find from the evidence, as viewed from the 

standpoint of the defendant at the time, that from the words or 

conduct, or both of [the complainant] it reasonably appeared to the 

defendant that his life or person was in danger and there was created 

in his mind a reasonable expectation or fear of death or serious bodily 

injury from the use of unlawful deadly force at the hands of [the 

complainant], and that acting under such apprehension and reasonably 

believing that the use of deadly force on his part was immediately 

necessary to protect himself against [the complainant’s] use or 

attempted use of unlawful deadly force, he stabbed [the complainant], 

then you should acquit the defendant on the grounds of self-defense; 

or if you have a reasonable doubt as to whether or not the defendant 

was acting in self-defense on said occasion and under the 

circumstances, then you should give the defendant the benefit of the 

doubt and say by your verdict, not guilty.

If you find from the evidence beyond a reasonable doubt that at 

the time and place in question the defendant did not reasonably 

believe that he was in danger of death or serious bodily injury, or that 

the defendant, under the circumstances as viewed by him from his 

standpoint at the time, did not reasonably believe that the degree of 

force actually used by him was immediately necessary to protect 

himself against [the complainant’s] use or attempted use of unlawful 

deadly force, then you should find against the defendant on the issue 

of self-defense.
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Appellant argues that the charge should have contained a simple instruction 

about the burden of proof, like the Pattern Jury Charge instruction for self-defense, 

which provides as follows: “The defendant is not required to prove self-defense. 

Rather, the state must prove, beyond a reasonable doubt, that self-defense does not 

apply to the defendant’s conduct.” Texas Criminal Pattern Jury Charges: Criminal 

Defenses § 32.2, at 184 (2015). Although an instruction of this type may have been 

preferable, given its simplicity, it was not necessary based on the remaining 

instructions in the charge.

After the instruction on self-defense, the charge provided that appellant was 

entitled to a presumption of innocence and that the “burden of proof in all criminal 

cases rests upon the State throughout the trial and never shifts to the defendant.” 

When these instructions are read alongside the application paragraphs for selfdefense, the charge cannot be said to have placed the burden on appellant for 

proving that he had acted in self-defense. “Clearly, when the charge is viewed as a 

whole, it placed the burden on the State to show beyond a reasonable doubt that 

appellant was not acting in self-defense.” Luck v. State, 588 S.W.2d 371, 375 (Tex. 

Crim. App. 1979).

The trial court did not err by giving the jury the self-defense instruction as 

written.

Order of the Instruction. The charge addressed the elements of murder 

before the issue of self-defense. The murder portion contained abstract and 

application paragraphs, which instructed the jury that it should find appellant guilty 

if all of the elements of murder had been proven beyond a reasonable doubt. These 

instructions did not specifically reference self-defense. In the self-defense portion, 

which immediately followed the murder portion, there were separate abstract and 

application paragraphs, which provided that the jury should acquit appellant if the 
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jury found or had a reasonable doubt that appellant had acted in self-defense when 

he stabbed the complainant.

Appellant asserts that the order of these instructions was confusing, and he 

argues that a self-defense provision should have been incorporated into the murder 

portion of the charge. For example, he suggests that the murder portion should 

have instructed the jury to convict him of murder if the elements of murder were 

proven and the jury did not find beyond a reasonable doubt that appellant had acted 

in self-defense.

The Court of Criminal Appeals has already rejected the argument that a selfdefense instruction must be incorporated into the application paragraph of the 

charged offense. See Hernandez v. State, 375 S.W.2d 285, 288 (Tex. Crim. App. 

1963) (holding that a charge was not erroneous for having an instruction on selfdefense that followed, but had not been incorporated into, an application paragraph 

for assault); Ekern v. State, 200 S.W.2d 412, 415 (Tex. Crim. App. 1947) (“The 

court cannot and is not required to charge all the law in each paragraph of his 

charge, but such charge should be taken and considered as a whole; and an 

ordinary jury is expected to and surely does take the charge as a whole and 

considers it as such.”). Accordingly, we hold that the charge was not erroneous 

based on the order in which the self-defense instruction appeared. See Green v. 

State, 675 S.W.2d 541, 543 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d) 

(“Where the court, later in its charge, gives an unrestricted charge on self-defense 

(as was done in this case) it is not necessary in applying the law to the facts from 

the standpoint of the state for the court to require the jury to find the accused was 

not acting in self-defense.”).
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CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher

Justice

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

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