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# 0 R!GIN AL C0URT 0F CRIMINAL APPEALS COURTOFCRIMINALAPPEALS AUSTIN, TEXAS MAR 12 2015

ON APPEAL FROM 179th DISTRICT COURT HARRIS COUNTY, TEXAS TRIAL COURT CAUSE NO. 1402764 and 

### COURT OF APPEALS MAR 12 2915 for the 

### FIRST DISTRICT OF TEXAS AbelAcosta' Clerk NO. 01-14-00145-CR Abel Acosta, Clerk



### FILED IN 

### COURTOFCRIMINALAPPEALS

PETITION FOR DISCRETIONARY REVIEW

ROMELLE MONTE HAWKINS V. STATE

ROMELLE MONTE HAWKINS, APPELLANT DARRINGTON UNIT 59 DARRINGTON RD. ROSHARON, TX 77583

ORAL ARGUMENT REQUESTEDTABLE OF CONTENTS 

### PROCEDURAL HISTORY AND PARTIES .'••. Ii STATEMENT OF THE CASE '-•_ ....... v.:. . iii STATEMENT REGARDING QRALiiARGUMENT iii INDEX OF AUTHORITIES ... .... .... . .^ iv 

### GROUND FOR REVIEW 1 THE FIRST COURT OF APPEALS ERRED IN ITS REVIEW OF TRIAL COURT'S ABUSE OF DISCRETION IN REFUSING A JURY CHARGE FOR THE LESSER-INCLUDED

OFFENSE OF CRIMINALLY NEGLIGENT HOMICIDE WHERE THE RECORD SHOWS:(A) EVIDENCE ESTABLISHING THE CHARGE AS A RATIONAL ALTERNATIVE,' AND (B) WHERE THE RECORD INDICATES THE JURY ASKED TRIAL COURT (DURING DELIBERATIONS) IF THEY COULD FIND

LESSER OFFENSE INSTEAD OF MANSLAUGHTER. QUESTION FOR REVIEW IN AN ABUSE OF DISCRETION REVIEW REGARDING INSTRUCTION ON A LESSER-INCLUDED OFFENSE, IS IT PROPER FOR THE REVIEWING COURT TO SUBSTITUTE ITS INTERPRETATION OF TESTIMONIAL EVIDENCE FROM THE RECORD FOR THAT OF THE JURY'S FIRST-HAND ASSESSMENT OF CREDIBILITY OF THE .-. WITNESS(ES) WHEN MAKING A DETERMINATION OF THE LESSER OFFENSE OF NEGLIGENT,HOMICIDEu. , AS A RATIONAL ALTERNATIVE TO MURDER? CONCLUSION
PRAYER 5 CERTIFICATE OF SERVICE 6PROCEDURAL HISTORY AND PARTIES 

### Appellant was charged with murder (CR at". 9,)/, pled not guilty and was tried by jury in the 179th District Court, Harris County; Honorable Judge Kristin Guiney presiding; trial counsel Victor Wisner, and prosecutors Alan Curry and Cara Burton. Appellant was found guilty of Manslaughter (RR 7:6) and sentenced to twentythree years confinement in TDCJ-ID. Timely notice of appeal was given and appellant counsel Deborah Summers filed the appeal with the First Court of Appeals, who Affirmed the conviction. Request for an extention of time
was filed with this Court, and the deadlina for filing this Petition set for March 6, 2015. The Prosecuting Attorney for the State of Texas was forwarded
a copy of this Petition as required.

STATEMENT OF THE CASE The sole issue presented on appeal regards trial court's denial of a lesser-included offense instruction on Negligent ''• Homicide. Of the seven witnesses at trial, two testified that 

### the Appellant had fired the shot(s) which killed the complainant. Evidence was also presented that Appellant had not intended the death of the complainant. Trial counsel requested the lesser-included offense instruction on Negligent Homicide, but trial court denied the request. The jury acquitted Appellant of Mucder, and during deliberations, 

### requested from trial court, "Can the manslaughter term be reduced?" (CR at 217).

li,Appellant counsel raised the issue of abuse of discretion in trial court's denial of the request for lesser-included offense of negligent homicide, and the First Court of Appeals analyzed the claim applying the two-step test used in Texas reviewing courts. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.Crim.App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App. 2011); Guzman
v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006). Both the State and the First Court of Appeals agreed that the first prong
was met--that criminally negligent homicide is a lesser-included offense to Murder. However, the court ruled that, in light of the evidence presented at trial, that criminally negligent homicide was not a rational alternative available to the jury for consider ation, citing Hall v. State, 225 S.W.3d 524, 535r36 (Tex.Crim.App. 2007). Appellant's argument is that the First Court of Appeals allowed the.trial, court's.ruling to stand by interpreting the written record of testimony at trial, thereby negating the jury's first-hand assessment of the demeanor and credibility of the witnesses. The question from the jur-ocrs to trial court (on top of their acqui,tal on the charge of murder), emphasizes that the jury did not believe Appellant possessed the requisite culpable mental state for Murder, and questioned whether he had the culpable mental state for Manslaughter. Appellant argues that, given the wide latitude for the jury to weigh the evidence presented, that inclusion of the lesserincluded offense was justified, and trial court erred in its exclusion. ORAL ARGUMENT REQUESTED

in.INDEX OF AUTHORITIES CASES BIGNALL, V. .. STATE, 887 S.W.2D 21... '...1, 2 (Tex.Crim.App. 1994) CAVAZOS V. STATE, 382 S.W.3d 377 .iii, 1 (Tex.Crim.App. 2012) FOREST V. STATE, 989 S.W.2d 365 1 (Tex.Crim.App. 1999) GUZMAN V. STATE, 188 S.W.3d 185 iii, 1 (Tex.Crim.App. 2006) HALL V. STATE, 225, S.W. 3d^524, . .iii, .1 (Tex.Crim.App. 2007) MONTGOMERY V. STATE,,:369 S.W.3d 188 3 {Tex.Crim.App. 2012) SWEEP V. STATE, 351 S.W.3d 63... 1 (Tex.Crim.App..2011) TRUJILLO V. STATE, 227 S.W.3d 164 3 

### (Tex.App.--Houston [1st Dist.] 2006, pet. ref'd)

STATUTES Tex. Penal Code Ann. § 19.05(a) (Vernon 2011) 2

IV.ground restated the first court of appeals erred in review of trial court's abuse of Discretion in refusing a jury charge for the lesserincluded offense of criminally negligent homicide where the

record shows: (a) evidence establishing the charge as a rational alternative, and (b) where the record indicates the jury asked trial court (during deliberations) if they could find for the lesser offense instead of manslaughter. synopsis of the first court's opinion The First Court applied "a two-step test to determine whether appellant was entitled to an instruction on a lesser included offense. Cavazos v. State, 382, S.W.3d 377, 382 (Tex.Crim.App. ^~ 

### 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex.Crim.App. 2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006)."

o Opinion at 6. The inquiry into the first prong--whether the defendant is entitled to the instruction--"is ..a question of law" which
0 the Court concluded was met. Hall, at 536. Opinion at 7. The second step "then requires that we determine whether
some evidence in the record would have permitted the jury to 

### rationally find that, if he., was' guilty, he was guilty' only of the lesser-included offense." Hall, 536 and Opinion at 7. The Court then notes the following: 

### (a) that "[a.jnything more than a scintilla of evidence may be sufficient to entitle the defendant to a lesser charge." Hall, 

### at 536; Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999). (b) that "the evidence must establish the lesser-included offense 

### as a valid,, rational alternative to the charged offense." Id. (c) that "it .is. not.enough that the jury disbelieve crucial evidence 

### pertaining to the greater offense..." Bignall v. State, 887 S.W.^d 21, 24 (Tex.Crim.App. 1994). (d) and that "there must be some evidence directly germane, to

1.the lesser-included offense for :the .finder of fact to.consider before a lesser-included offense instruction is warranted. Id. The First Court then concluded that trial court did not err in denying Appellant's request regarding the lesser offense of criminally negligent homicide because "Appellant did not present evidence showing that he failed to perceive the risk created by his conduct, and the evidence shows that he did perceive and disregard that risk." Opinion at 12. SCINTILLA OF EVIDENCE 

### The State's central..witness,.:Ms,.Fallon, testified that there was no animosity between Petitioner and the complainant and that he would "not hurt someone he was with" (RR4 at 128, 135). 

### She.further, testified that Petitioner said, "what the fuck happened" and was shaking after the fatal shot. (RR4 at 85, 96, 143-44). Evidence that the Petitioner's shooting and killing of the .-....., complainant was unintentional arises from the State's own witness, 

### despite the fact that Ms. Fallon repeatedly stated she thought the shot was intentional. (RR4 at 79-80, 84-86, 89, 92-93, 95- 

### 96, 143). From the jury's acquittal of Petitioner on the charge of murder, it is apparent the trier of fact chose to reject 

### Ms. Fallon's testimony regarding mens rea.: j .. VALID, RATIONAL ALTERNATIVE A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. Tex. Penal Code Ann. § 19.05(a) (Vernon 2011). Ultimately, "[tjhe key to criminal negligence is not the actor's being aware of a substantial risk and disregarding it, but rather it is a failure
2.of the actor to perceive the risk at all" created by his conduct. Montgomery v. State, 369 S.W.3d 188, 193 (Tex.Crim.App. 2012); Trujillo v. State, 227 S.W.3d 164, 168 (Tex.App.--Houston [1st Dist.] 2006, pet. ref'd); Opinion at 9. Presented at trial is the Petitioner's statement, as testified by Ms. Fallon ("what the fuck"), that provides evidence that he had not perceived the potential consequence of his action (the complainant stepping in front of the gun as he fired) though he certainly 'should have perceived the risk his conduct created. Trujillo at 168. This level of the actor's perception of the risk, or the level of culpable mental state, finds basis within the record, and falls within the purview of the trier of facts. The Court of Appeals states that the fact that the actor did not "intend the result does "not automatically entitle him to a charge of criminal! negligence." The .court further noted that "a defendant is not entitled to a charge of criminally negligent homicide if the evidence shows the defendant's awareness is such that he perceived the risk his conduct created." Opinion at 10 (citing Truj illo). But evidence existed supporting both manslaughter and criminally negligent homicide, evidence on the trier of facts was in a position to cipher, having first-hand impression of the credibility of the testimony. THE JURY'S REJECTION OF CRUCIAL EVIDENCE The jury acquitted Petitioner of Murder. In so doing, the 

### jury rejected the State's theory and the contention of the State's central witness that there was an..intent to murder the complainant. An during deliberations, the jury queried the Court whether theycould convict Petitioner of a lesser charge. (CR at 217). The factual basis for negligent homicide is the statement, or excited utterance, ..of Petitioner just after the fatal shot, not merely the rejection of crucial evidence.
GERMANE EVIDENCE It bears repeating that the statement and reaction of the Petitioner provided evidence of his culpable mental state at the 

### time of the complainant's death. This is further supported by the revelation during cross-examination of the State's central 

### witness (Ms. Fallon) that there was no animosity between complainant and Petitioner, not did he have the proclivity to hurt someone he was with. (RR4 at 85, 96, 143-44).

DID THE COURT OF APPEALS SUBSTITUTE ITS: REVIEW OF THE TESTIMONIAL EVIDENCE FOR THAT OF THE JURY IN DECIDING/WHETHER THE LESSERfilNCIJJDED OFFENSE CHARGE WAS WARRANTED? It is Petitioner's contention that evidence existed to support the lesser-included offense charge of criminally negligent homiciderspecifically the Petitioner's statement after the fatal..:;shot.:- Testimonial evidence would lend support to the charge of Manslaughter,
or even Murder. But that evidence is testimonial, subject to the trier of fact--the jury, not trial court, and not the Court of Appeals. The jury was free to choose whether the Petitioner had the 'requisite mental state to justify a conviction or acquittal as to murder. They acquitted. They had the option of deciding whether the requisite mental state for Manslaughter was present, 

### and they reacted with the question to 'trial court as to whether they could choose a lesser offense. It was not available to them, not because there was no evidence to support the requisite mentalstate, but because it had been denied by trial court as a lesserincluded offense. All the jury needed to find Petitioner guilty of criminally 

### negligent homicide is to believe the testimony regarding Hawkin's reaction just after the shot, and not believe the testimony of the other parties. The Court of Appeals disregards the options available to the jury.,; making an ex post facto determination based upon facts the jury had rejected.
CONCLUSION The trial court abused its discretion'-denying instruction:... on the lesser-included offense of criminally negligent homicide where there was evidence available to the jury to make a reasoned determination when weighing the testimonial evidence presented at trial. The First Court of Appeals erred in its review by rendering a decision based on the written record devoid of the first-hand assessment position of the jury in judging credibility.

PRAYER WHEREFORE, PREMISES CONSIDERED, Petitioner prays- this Court give Petitioner's pleadings full consideration, despite the short comings of a layman-at-law's petition, and Grant this request for discretionary review. /S/ 

## ,00 /ttUW/tftINMATE DECLARATION I, Romelle M. Hawkins, TDCJ-ID No. 1911528, being currently incarcerated at the Darrington Unit, Brazoria County, Texas, do hereby declare that a true and correct copy of the above and foregoing Petition for Discretionary Review has been sent to the following addresses, first-class postage prepaid, and placed in the USPS authorized mail receptacle on this the fS day of 

## ^dRphj 2015:
Court of Criminal Appeals Supreme Court Building PO Box 12308, Capitol Station Austin, TX 78711 State Prosecuting Attorney PO Box 12405, Capitol Station Austin, TX 78711

/S/ 

# \Awm flmUlO )Opinion issuedDecember4, 2014

In The 

## Courtofgppeafe
For The 

## jf tnrtBtetrtrtofCexa*

NO. 01-14-00145-CR
ROMELLEMONTE HAWKINS, Appellant V. THE STATE OF TEXAS, Appellee


### OnAppealfrom the 179thDistrictCourt Harris County, Texas Trial Court Case No. 1402764

MEMORANDUM OPINION 

### AppellantRomelleMonteHawkinspleadednotguiltyto thechargedoffense 

### ofmurder.1 Ajury found Appellant guilty ofthe lesser-included offense of

See Tex. PenalCodeAnn. § 19.02 (Vemon 2011).

### manslaughter2 and assessed Appellant's punishment at23 years inprison. Inone issue on appeal, Appellant asserts that the trial court erred by refusing to instruct the jury on the lesser-included offenseofcriminally negligent homicide.
We affirm. Background 

### On April 8, 2012, at around 11:00p.m., Fallon Kiser went to a bar to meet friends, including her date, Jerold Griffin, and her best friend, Katherine Brownlow-Stewart, the complainant in this case. Appellant was also at the bar.
He was Katherine's date. 

### The group stayed at the bar for a while and then went to a second club. Fallon and Katherine were at the second club when, around 3:00 a.m., Jerold 

### decided that he wanted to leave. Although she wanted to stay at the club, Fallon decided to leave with her date. Fallon and Jerold rode in the backseat of Jerold's vehicle, a white SUV. 

### Jerold's cousin, Devline Smallwood, was driving, and another acquaintance, 

### Cedric Jackson, rode in the front passenger seat. During the ride, Fallon and Jerold 

### started to argue. They both had beendrinking alcohol thatnight, andJerold was drunk.

See id. § 19.04 (Vernon 2011).

### Fallon got out ofthe vehicle and beganwalking along the road, which was in
an isolated area. Devline drove the SUV slowly along the road to keep pace with Fallon. The men encouraged Fallon to get back in the vehicle, but she would not 

### comply. Jerold got out ofthe SUV and began walking with Fallon trying to convince her to get back in the vehicle. The two continued to argue as they
walked. 

### Fallon called Katherine to come pick her up. Katherine arrived shortly after Fallon called her. Katherine was driving her black SUV. Appellant was in the front passengerseat. 

### Fallon got into the backseatofKatherine's vehicle. Katherine and Jerold began arguing, and Jerold walked toward Katherine's SUV in what Fallon later described as an aggressive manner. Fallon saw Katherine reach under her driver's seat to grab a gun, which Fallon knew Katherine kept in her vehicle, but Katherine couldnot locatethe weapon. 

### As Jerold approached her SUV, Katherine opened her door, hitting Jerold in the face. Katherine then got out ofthe vehicle and began hitting Jerold. Fallon 

### also got out of the SUV and went to assist Katherine in thephysical altercation with Jerold. The two women engaged in a physical fight with Jerold for about 10
to 15 minutes.

### The women were winning the fight when Devline approachedto break it up. 

### He grabbed Jerold around the waist and tried to pull him away. 

### At this point, the group was near the driver's sideofKatherine's SUV. The driver's side door and window were open. Appellant had never gotten out of Katherine's vehicle andremained seated in the front passenger's seat. 

### Without warning, the group heard a gunshot. It was Appellant; he had fired
a revolver from inside Katherine's SUV. Katherine told Fallon to "get down." 

### The two women ducked down by the vehicle. Jerold and Devline ran away. 

### Cedric, who was furtheraway, hid in the bushes. Ten to fifteen seconds passed. 

### Appellant fired the gun a second time. That shot hitJerold in the arm as he ran away. Sometimepassed, andKatherine andFallonthoughtit wassafe. Katherine stood up and went to get in the driver's side of hervehicle. Aboutfive seconds after she stood up,Appellant fired the gun a thirdtime, shooting Katherine in the head. Katherine fell intoFallon's arms, and they both fell to the ground. 

### Fallonlooked atAppellant and saw him holding the gun. He was shaking. Fallon had heard Appellant say, "What the fuck happened?" 

### Fallon begged Appellantto helpKatherine. Instead, Appellant gotinto the driver's seat ofKatherine's vehicle and drove off. Thepolice andparamedics were 

### calledto thescene. However, Katherinediedfrom the gunshotwound to herhead.

### Fallon told the police that Appellant had shot Katherine and Jerold. Cedric identifiedAppellantas thepersonhe saw driving away from the scene. 

### Later that day,Appellantwent to a police station toinquire aboutKatherine. Appellant was taken into custody, and he agreed to be interviewed. During the video-taped interview, Appellant denied being at the scene and firing the gun. 

### Appellant was indicted for the offense of murder. During trial, Fallon testified in detail to the events occurring before, during, and after the shooting. 

### She stated that Appellant was the person who shotKatherine. Fallon testified that, when Katherine was shot, she had seen Appellant aiming the gun at Katherine's head. She stated that the shots had not been fired rapidly; rather, appreciable time 

### hadelapsed between each of the three shots. Fallon testified thatKatherine had been standing upright for five seconds trying to get into her vehicle when Appellant shot her. 

### Cedric also testified. He stated that, although he did not see who had fired 

### the shots, he sawAppellantdriveaway after theshooting. Theinvestigatingpolice officers testified at trial, and the video-taped interview with Appellant was 

### admitted into evidence. The State further showed, through forensic evidence, that 

### Appellanthad testedpositive for gun residue on both his hands and his clothing. The defense did not present any evidence.Atthe charge conference, the defense requestedthatthejury be instructedon 

### the lesser-included offenses ofmanslaughter and criminally negligent homicide. 

### The trial court granted the request to instruct the jury on the lesser-includedoffense 

### of manslaughter, but denied the request to instruct the jury on the offense of criminally negligenthomicide. 

### When it returned its verdict, the jury found Appellant guilty ofthe offense of manslaughter. Appellant pleaded true to an enhancement allegation found in the 

### indictment, indicating that he had previously been convicted ofthe felony offense offelon in possession ofa firearm. The jury assessed Appellant's punishment at 23 years inprison. 

### This appeal followed. In one issue, Appellant asserts that the trial court 

### erred in denying his request to instruct the jury on the lesser-included offense of criminally negligenthomicide. Lesser-Included Offense Instruction
A. Standard ofReview 

### We apply a two-step test to determine whether appellant was entitled to an instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382 

### (Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App. 

### 2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). We first determine whether criminally negligent homicide is a lesser-included offense of

### murder by comparing the statutory elements of the greater offense and any 

### descriptive averments in the indictmentwith the statutory elements ofthe potential lesser-included offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524, 

### 535-36 (Tex. Crim. App. 2007). This inquiry is a question oflaw. Hall, 225 S.W.3dat535. 

### Ifthis threshold is met, the second step then requires that we determine 

### whether some evidence in the record would have permitted thejury to rationally 

### find that, if he was guilty, the defendant was guilty only ofthe_ie_s^er-induded_ offense. Id. at 536; Guzman, 188 S.W.3d at 188-89; 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 lesser charge, but the evidence must establish the lesser-included offense as a valid, rational alternative 

### to thecharged offense. Hall, 225 S.W.3d at536; Forestv. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). Although the threshold showing required for an instruction on a lesser-included offense is low, it is not enough that the jury may 

### disbelieve crucial evidence pertaining to the greater offense; there must be some 1 ' 

### evidence directly germane to the lesser-included offense for the finder offact to considerbefore a lesser-included offense instruction is warranted. Bignallv. State, 

### 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). B. AnalysisHere, the State does not dispute that criminally negligent homicide is a lesser-included offense ofmurder. See Saunders v. State, 840 S.W.2d 390, 391 

### (Tex. Crim. App. 1992) (holding that negligent homicide is a lesser-included offense ofmurder). Thus, as briefed, the dispute in this case centers on whether 

### there is some evidence from which the jury could have rationally found that, if 

### Appellant was guilty, he was guilty only of the lesser offense of criminally negligent homicide. At this step ofthe analysis, "the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense." Hall, 225 S.W.3d at 536. 

### A person commits the offense ofmurder ifhe intentionally or knowingly
causes the death of an individual or 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)(1), (2) (Vernon 2011). A person 

### commits manslaughter ifhe recklessly causes the death ofanother. See id. § 19.04 (Vernon 2011). A person commits the offense ofcriminally negligent homicide if he causes the death of an individual by criminal negligence. Id. § 19.05(a) (Vernon 2011). 

### The essential difference between murder, manslaughter, and criminally 

### negligenthomicide is theculpable mental state required toestablish each offense.

### See Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). The Penal Code defines the relevantculpable mental states as follows: 

### (a) A person actsintentionally, or withintent, withrespectto . . . his conduct when it is his conscious objective or desire to . . . cause the result. 

### (b) A person acts knowingly, or with knowledge, with respect to a result ofhis conduct when he is aware that his conduct is reasonably certain to cause the result. 

### (c) A person acts recklessly, or is reckless, withrespect to . . . the result ofhis conductwhen he is aware ofbut consciously disregards a 

### substantial and unjustifiable risk that the . . . result will occur. The risk must be ofsuch 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. 

### (d) A person acts withcriminal negligence, or iscriminally negligent, with respect to
... the result of hisconductwhen he ought to be aware ofa substantial and unjustifiable risk
... or the result will occur. The risk must be ofsuch a nature and degree that the failure to perceive it 

### constitutes agross deviationfromthestandardof carethat anordinary 

### personwouldexerciseunderall thecircumstances asviewed from the actor's standpoint. TEX. PENALCODEANN. § 6.03(a)-(d) (Vernon 2011). 

### "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 to 

### perceivetheriskatall" createdbyhis conduct. Montgomeryv. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012); Trujillo v. State, 227 S.W.3d 164, 168 (Tex. 

## App.—Houston [1stDist.] 2006, pet. refd). Evidence showing that adefendantdid not intend the result does not automatically entitle him to a charge on criminal 

### negligence. See Trujillo, 227 S.W.3d at 168. "Rather, the difference between criminally negligent homicide and manslaughter is the culpable mental state of 

### criminal negligence for the former and recklessness for the latter." Id. A defendant is not entitled to a charge of criminally negligent homicide if the evidence shows that the defendant's awareness is such that he perceived the risk his conduct created. Id. 

### In support of his assertion that the jury should have been instructed on criminally negligenthomicide, Appellantasserts as follows in his appellate brief: There was substantial evidence that the shooting and killing ofthe 

### complainant was unintentional and that the Appellant was trying to break up the melee that had started in front of him. Ms. Fallon testified that [Jerold] was getting more deadly and more aggressive and she would have pulled a gun on him that night ifshe had one. 

### The fight had already lasted 10-15 minutes. Ms. Fallon admitted under cross examination that there was no friction between the 

### complainant and the Appellant and that the Appellant would "nothurt someone he was with." She further admitted that when the 

### complainant was shot and killed, the Appellant said, "What the fuck happened" and was shaking. . . . There was further evidence that [Appellant's] eyesight was not good and the lighting conditions were only good. 

### (Recordcitations omitted.) 

### While it may show that he did not intendto killKatherine, theevidencecited 

### by Appellant does not necessarily show that he failed to perceive the risk of pointing andfiring a gun in thedirection offourpeople, standingnearby him. SeeTrujillo v. State, 227 S.W.3d at 168. This is particularly true when the cited evidence is viewed in the context of the other evidence in the record. See 

### Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (concluding that 

### appellant's statement he did not intend to hit victim not evidence he is guilty only oflesser included offense, particularly given the other evidence in the record that he intendedto kill victim). 

### The evidence showed that Appellant fired the gun three times with a significant pause between each shot. The second shot hit Jerold in the arm. A sufficient amount oftime passed, which led Katherine and Fallon to think that it was safe to stand up. After Katherine stood up, another five seconds passed. 

### Appellant then shot her as she tried to get into her own vehicle in which Appellant sat. Fallon testifiedthat she saw Appellantaim the gun atKatherine's head. Even ifthe evidence could be viewed (1) as showing that Appellant was 

### trying to break up the fight between the two women and Jerold by frightening the group or (2) as showing that Appellant was shooting at Jerold to protect the women, such evidence does not raise a scintilla ofevidence that Appellant did not 

### perceive the risk his conductcreated. To the contrary, viewing the evidence in such a manner would show that Appellant disregarded the risk, knew the risk of 

### firing agun, or waschoosingtoexploitthatrisk. See Trujillo, 227S.W.3d at 168 (concluding thatbrandishing a loaded gun to frighten people indicates awareness

11

### ofa risk posed by a loaded gun); see also Jackson v. State, 248 S.W.3d 369, 372 

### (Tex. App.—Houston [1st Dist.] 2007, pet. refd) (holding that drawing handgun from pocket in response to a threat does not alone raise an inference that appellant
was unaware ofthe risk posed by that conduct; instead, it indicates that the actor


### was aware ofthe risk posed by the weapon and was choosing to exploit that risk). 

### Because Appellant did not present evidence showing that he failed to 

### perceive the risk created by his conduct, and the evidence shows that he did perceive and disregard that risk, the trial court did not err by denying Appellant's request to instruct the jury on the offense ofcriminally negligent homicide. See 

### Trujillo, 227 S.W.3dat 168-69. We overruleAppellant's soleissue.
Conclusion We affirm thejudgmentofthetrial court.

LauraCarterHigley Justice Panel consists ofJustices Keyes, Higley, and Brown. 

### Do not publish. Tex. R.App. P. 47.2(b).

12JUDGMENT 

## Courtofgppeate 

## $ trtftJBtetrttfofCexa*
NO. 01-14-00145-CR ROMELLEMONTE HAWKINS, Appellant
V. THE STATE OF TEXAS, Appellee 

### Appealfromthe 179thDistrictCourtofHarris County. (Tr. Ct. No. 1402764).

This case is an appeal from the finaljudgment signed by the trial court on February 

### 10,2014. Aftersubmitting the case on theappellate record and thearguments properly 

### raisedby theparties, theCourtholdsthatthetrialcourt'sjudgmentcontainsnoreversible error. Accordingly, the Courtaffirms the trialcourt'sjudgment.
The Court orders that this decision be certified below for observance. JudgmentrenderedDecember4, 2014. 

### Panel consists of Justices Keyes, Higley, and Brown. Opinion delivered by Justice Higley.^

HJ 

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