NUMBER 13-11-00523-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

JUSTIN RHYS SCEPANSKI, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 332nd District Court 

of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Longoria

Memorandum Opinion by Justice Perkes

Appellant Justin Rhys Scepanski appeals his conviction of murder, a first-degree 

felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw through 2013 3d C.S.). 

Appellant pleaded not guilty to the indicted offense of capital murder in the course of 

robbery, but a jury found him guilty of the lesser-included offense of murder and assessed 
2

punishment at forty-five years’ imprisonment in the Texas Department of Criminal Justice, 

Institutional Division. By five issues, appellant argues: (1) he was entitled to lesserincluded instructions on manslaughter and criminally negligent homicide; (2) the trial court 

should have disallowed the testimony of untimely-designated witnesses; (3) the trial court 

improperly admitted extraneous-act evidence during the punishment hearing; (4) the 

State’s punishment-hearing argument was improper; and (5) the trial court improperly 

omitted an extraneous-act instruction in the punishment jury charge. Because we hold 

appellant was entitled to a lesser-included instruction on manslaughter, we reverse and 

remand. 

I. BACKGROUND

Baldemar Villarreal was shot once in the upper abdomen from close range. He 

was outside his house, and it was nighttime. Inside his house, his wife1 Kristina Guerra 

heard the gunshot followed by the sound of “a vehicle peeling out.” Guerra went outside, 

where she saw her husband stumbling toward the house. He told her to call the police 

because he had been shot. Guerra immediately called the police. 

Guerra returned to Villarreal after calling the police. Villarreal asked Guerra to 

retrieve his nine-millimeter handgun, which was laying “by the street” near the front gate 

to Villarreal’s property. Guerra retrieved the gun, took it inside the house, placed it in a

gun case, and put the gun case in a bedroom closet.

 

1 At trial, most witnesses referred to Guerra as Villarreal’s wife, and Guerra herself stated Villarreal 

was her husband. Elsewhere in the record, however, she was identified as Villarreal’s girlfriend, and the 

State said she was Villarreal’s common-law wife in its opening argument. 
3

The police officers arrived and found a nine-millimeter shell casing and Villarreal’s 

cellular telephone on the road near the front gate to Villarreal’s property. Villarreal lay

recumbent near the staircase leading to the front door of Villarreal’s house. The 

responding officers observed a “stack” of currency lying near the stairs. 

Deputy Jose Contreras was one of the first officers to arrive. Deputy Contreras 

talked to Villarreal, who told Deputy Contreras what happened: “[Villarreal] told me 

[Deputy Contreras] that his friend Justin had called him and wanted to hang out with him. 

So he went outside—he went outside and Justin had arrived, that Justin had grabbed him 

by the neck and then shot him the stomach area.” Deputy Contreras testified that 

Villarreal explained he had been shot “on the roadway” by a passenger of “like a black 

Jimmy” who grabbed Villarreal by the neck and demanded, “[G]ive me your money.” 

According to Deputy Contreras, Villarreal “kept telling me, ‘It was Justin. It’s Justin[.]’”

Sergeant Miguel Davila of the Hidalgo County Sheriff’s Office also talked to 

Villarreal, and Sergeant Davila’s recollection of what Villarreal said closely paralleled 

Deputy Conteras’s testimony:

He [Villarreal] stated he had gotten a phone call from a friend named Justin, 

that he was in the front of the—his property by the roadway and for him to 

go over there. He walked over there. He sees Justin and he’s a 

passenger to—he—as he said, a dark colored SUV, like a Jimmy, I believe 

he said. He says he was a passenger. When he walked up to him, I 

guess Justin told him—he goes, [“]Give me all your money[”], and he took 

a shot at him.

Deputy Julio Castenada also testified Villarreal “said a man by the name of Justin shot 

him.” Guerra confirmed Villarreal received a phone call and went outside his house 

about five minutes before he was shot, and Guerra testified Villarreal told her also that a 
4

man named Justin shot him from the passenger side of a dark colored vehicle. Guerra 

said she had never heard of appellant before then. Villarreal died later, and forensic 

pathologist Norma Jean Farley testified that the gunshot wound to the upper abdomen 

caused his death. 

Pursuant to Guerra’s consent, responding officers searched Villarreal’s house. 

Deputy Castenada found the gun case in the bedroom closet and seized the ninemillimeter handgun from the case. Before removing the gun from the premises, Deputy 

Castenada “cleared” the weapon, meaning he removed the handgun’s magazine and the 

cartridge he found “chambered,” which Deputy Castenada defined as a gun with a 

cartridge that has been transferred from a handgun’s magazine to the gun’s barrel—

“ready to be fired.”2 Deputy Castenada affirmed that one chambers a cartridge by 

cocking the firearm.3 Guerra testified that when she retrieved the gun from the street

and placed it in the gun case, she did not chamber it. 

On the day after the shooting, lead investigator Leonor Garcia, who understood 

that the primary suspect was named Justin, dialed phone numbers another officer 

retrieved from Villarreal’s cell phone. A man named Justin answered one of the calls, 

and when Investigator Garcia asked, “What Justin[?],” the man responded, “Justin 

 

2 Edward Wallace, a forensic scientist supervisor in the firearms section of the Bexar County 

criminal investigation laboratory, explained in more detail:

Chambering a cartridge or a bullet is when you place an unfired round of ammunition into 

the chamber of the gun either from the magazine by pulling the slide back, in the case of a 

pistol, and allowing the slide to go forward to feed the cartridge into the chamber or by 

pulling the slide back and manually loading a round into the chamber of the gun without a 

magazine being present.

3 Wallace confirmed this, noting, “You can cock a gun without chambering a round; but, yes, you 

could use that term [‘cocking’] to describe the process.” 
5

Scepanski.” Investigator Garcia investigated appellant and found multiple residences 

associated with him. Investigators ultimately located appellant traveling in a vehicle with 

two friends and apprehended him. After being properly Mirandized, appellant provided

Investigator Garcia with a statement. 

In appellant’s statement, appellant acknowledged shooting Villarreal, but appellant 

claimed it happened as he and Villarreal struggled for a handgun. According to 

appellant’s statement, appellant had attended a party earlier that night, which his friend 

Rosa Perales hosted. Appellant said he left the party on foot and began walking home 

when a man named Rex, driving a black truck, stopped appellant and asked if appellant 

“had anymore weed to make money.” Appellant responded he did not and asked Rex 

where appellant could get some Xanax “because a guy that I know as Balla [Villarreal] 

wanted to buy some.” Rex said he knew where appellant could get some Xanax, and 

appellant called Villarreal. The following excerpt is from appellant’s statement:

I was on the phone with Balla and he was giving me directions to his house. 

Rex was driving his truck. Balla[] told me that he was going to be standing 

outside his property . . . . We pull up on the roadway facing south. Balla 

goes up to my window which is the passenger window and asked me for 

some Xanax Bars. I asked Rex for the bars and he say’s [sic] he’s not here 

yet, referring to the guy who was suppose[d] to bring them. Rex [] says will 

be right back and goes south about 3 blocks and turns around and pass 

Balla’s house. We pull up again and face south. Balla comes to my 

window and this time I see he has a black pistol in the front of his waist. I 

can see the pistol because his zip up hoodie (sweater) is opened showing 

off his gun. Balla has his right hand near his waist line. When he gets to 

my window everything happens. Balla pulls out his pistol slow enough that 

I can hear a cock. I hear Rex say he’s got a gun. I turn and see Balla 

pointing his gun at me. I know there a [sic] gun between Rex and I and I 

picked it up. I did not know if it was loaded or not. Balla tries taking the 

gun that I have and we began to struggle while I am inside the truck during 

which time I shoot Balla. I did not know where I had shot him. . . . I see 

Balla fall down on the spot and he gets back again. I see that Balla still 
6

has his gun in his hand and I was afraid he was going to shoot so we took 

off. I got to see Balla walking into his property and I thought everything 

was good. 

According to appellant’s statement, Rex took appellant back to the party and left, taking 

the gun appellant had used with him. Appellant emphasized, “I did not mean to shoot 

Balla[;] it was in self[-]defense.” Appellant also said he had never met Villarreal before 

that night and had only one conversation with him on the telephone. Pursuant to the 

State’s motion, the trial court admitted appellant’s statement into evidence.

Rosa Perales, who described herself as “a good friend” of appellant, hosted the 

party appellant attended on the night Villarreal was shot. Perales testified that appellant 

had informed her that he was going to Villarreal’s house to sell Xanax bars. But appellant 

told Perales, “We didn’t have any bars, we were going to play along until he showed us 

the money and then we were going to jack him up.” 

The gun used to shoot Villarreal was never recovered. Officers did find Rex’s 

black GMC Sonoma pickup truck. On the outside of the passenger door, investigators 

recovered one particle characteristic of gunshot residue and two particles indicative of 

gunshot residue.4 There was no gunshot residue on the inside of the door.

II. LESSER-INCLUDED OFFENSE INSTRUCTION

By his first issue, appellant argues the trial court reversibly erred by denying his 

request to include the lesser-included offenses of manslaughter and criminally negligent 

homicide in the jury charge. 

 

4 Phillip Stout of the trace evidence section of the Texas Department of Public Safety Crime 

Laboratory explained that a characteristic particle has the “three component particles”—“lead, barium and 

antimony”—of gunshot residue, but an indicative particle has only two of the three elements. 
7

A. Applicable Law

The determination of whether the trial court should give a lesser-included offense 

instruction requested by a defendant 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). We review the first step de novo. See id. Relevant here, the Texas 

Code of Criminal Procedure provides that an offense is a lesser-included if “it differs from 

the offense charged only in respect that a less culpable mental state suffices to establish 

its commission.” TEX. CODE CRIM. PROC. ANN. art. 37.09(3) (West, Westlaw through 2013 

3d C.S.). 

In applying the second step, we look to see if there is some evidence in the record 

that would permit a rational jury to find that, if the defendant is guilty, he is guilty only of 

the lesser-included offense. Rice, 333 S.W.3d at 145. “In applying the second prong 

of the test, the appellate court must examine the entire record instead of plucking certain 

evidence from the record and examining it in a vacuum.” Enriquez v. State, 21 S.W.3d 

277, 278 (Tex. Crim. App. 2000) (en banc) (citing Ramos v. State, 865 S.W.2d 463, 465 

(Tex. Crim. App. 1993) (en banc)); see Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex. 

Crim. App. 2000) (en banc). “We consider all of the evidence admitted at trial, not just 

the evidence presented by the defendant.” Goad v. State, 354 S.W.3d 443, 446 (Tex. 

Crim. App. 2011) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993) 

(en banc)). 
8

“A defendant is entitled to an instruction on a lesser-included offense if some 

evidence from any source raises a fact issue on whether he is guilty of only the lesser, 

regardless of whether the evidence is weak, impeached, or contradicted.” Cavazos v. 

State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012) (citing Bell v. State, 693 S.W.2d 434, 

442 (Tex. Crim. App. 1985) (en banc)). The evidence must establish the lesser-included 

offense as a valid, rational alternative to the charged offense. Id. at 385; Rice, 333 

S.W.3d at 145. “‘[R]egardless of the strength or weakness of the evidence, if the 

evidence raises the issue that the defendant was guilty only of the lesser offense, then 

the charge must be given.’” Cavazos, 382 S.W.3d at 384–85 (quoting Saunders v. State, 

840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (en banc)). “[W]e may not consider ‘the 

credibility of the evidence and whether it conflicts with other evidence or is controverted.’” 

Goad, 354 S.W.3d. at 446–47 (quoting Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. 

App. 1994) (en banc)). Anything more than a scintilla of evidence is sufficient to entitle 

a defendant to a lesser-included charge. Id. at 446. “The second step is a question of 

fact and is based on the evidence presented at trial.” Cavazos, 382 S.W.3d at 383.

A person acts intentionally, or with intent, with respect to the result of his conduct 

when it is his conscious objective or desire to cause the result.5 TEX. PENAL CODE ANN. 

§ 6.03(a) (West, Westlaw through 2013 3d C.S.). A person acts knowingly, or with 

knowledge, with respect to the result of his conduct when he is aware that his conduct is 

reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly, or is 

 

5 Murder is a result-of-conduct offense, Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 

2011); Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) (en banc), and we therefore cite 

to the provisions of section 6.03 of the penal code that define mental states for result-oriented offenses. 
9

reckless, with respect to the result of his conduct when he is aware of but consciously 

disregards a substantial and unjustifiable risk that 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. A person acts with criminal 

negligence, or is criminally negligent, with respect to the result of his conduct when he 

ought to be aware of a substantial and unjustifiable risk that the result will occur. Id. § 

6.03(d). The risk must be of such a nature and degree that the failure to perceive it 

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.

B. Discussion

1. Manslaughter and Criminally Negligent Homicide are Lesser-Included 

Offenses of Section 19.02(b)(1) Murder.

In this case, manslaughter and negligent homicide are lesser-included offenses of 

murder, and the first prong of the test is satisfied. See Rice, 333 S.W.3d at 144. A 

grand jury indicted appellant for intentionally causing the death of Villarreal, a murder 

offense under Texas Penal Code section 19.02(b)(1). See TEX. PENAL CODE ANN. § 

19.02(b)(1). The only difference between murder under section 19.02(b)(1) and 

manslaughter and criminally negligent homicide is that manslaughter has the lesser 

mental state of recklessness and criminally negligent homicide involves the lesser mental 

state of criminal negligence. Compare id., with TEX. PENAL CODE ANN. § 19.04 (West, 

Westlaw through 2013 3d C.S.) (manslaughter), and TEX. PENAL CODE ANN. § 19.05

(West, Westlaw through 2013 3d C.S.) (criminally negligent homicide); see TEX. PENAL 
10

CODE ANN. § 6.02(d) (West, Westlaw through 2013 3d C.S.) (outlining four culpable 

mental states “from highest to lowest”). Because manslaughter and criminally negligent 

homicide differ from murder in section 19.02(b)(1) only in that a less culpable mental state 

suffices to establish their commission, they are lesser-included offenses of section 

19.02(b)(1) murder. See TEX. CODE CRIM. PROC. ANN. art. 37.09(3); Arnold v. State, 234 

S.W.3d 664, 671 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“[I]t is well-established 

that manslaughter is a lesser-included offense of murder) (citing Girdy v. State, 213 

S.W.3d 315, 318–19 (Tex. Crim. App. 2006); Moore v. State, 969 S.W.2d 4, 9 (Tex. Crim. 

App. 1998) (en banc))); see also Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. 

App. 1995) (en banc) (holding negligent homicide is a lesser-included offense of murder). 

2. The Evidence Supported an Instruction on Manslaughter. 

Appellant’s statement that he shot Villarreal in a struggle for a weapon was some 

evidence of recklessness. First, appellant’s statement supported an inference he 

understood the risk associated with firearms, see TEX. PENAL CODE ANN. § 6.03(c) 

(defining recklessness); he explained that his decision to grab a gun was prompted by 

Villarreal allegedly pointing a gun at him. This indicated appellant appreciated the 

substantial risk the firearm posed. See Sadler v. State, 728 S.W.2d 829, 831 (Tex. 

App.—Dallas 1987, no pet.) (holding that the defendant’s attempt to gain possession of 

a pistol because he was afraid the other person would use it to shoot him manifested an 

awareness “of the risk of injury or death involved in the ensuing struggle over the pistol”); 

see also Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985) (en banc) (noting 
11

that evidence showing a defendant’s appreciation of a gun’s potential for injury indicates 

the person is aware of a risk created by using it). 

Second, appellant disregarded the risk by seizing the gun, but appellant’s 

statement expressly disclaimed he intended to shoot. Instead, appellant said the 

shooting occurred while he and Villarreal struggled for the gun. This explanation is 

similar to one the court of criminal appeals concluded warranted a jury instruction on 

recklessness: “[A]ppellant testified that he did not intend to shoot the complainant and 

that the actual discharge of the gun was accidental, occurring during a struggle between 

appellant and the complainant. These are precisely the circumstances under which a 

charge on reckless conduct should be given.” Hayes v. State, 728 S.W.2d 804, 810 

(Tex. Crim. App. 1987) (op. on reh’g) (en banc). Following the Hayes holding, we 

conclude appellant’s version of events constituted some evidence supporting an 

instruction on recklessness. See Hayes, 728 S.W.2d at 810; Arnold, 234 S.W.3d at 672 

(“[C]ourts have typically found that a manslaughter instruction was required based on 

some evidence that the gun discharged accidentally or that the defendant only intended 

to frighten the complainant.”).

6

 

6 We recognize appellant’s statement arguably supports a self-defense claim, which is 

incompatible with recklessness. See Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim. App. 2011). In 

his statement, appellant expressly uses the term self-defense: “I did not mean to shoot Balla[;] it was in 

self[-]defense.” A review of appellant’s whole statement, however, shows appellant does not use the term 

“self-defense” as a concession of intentional or knowing conduct he characterizes as justified; appellant is

disavowing an intent to kill, insisting the gun discharged during a struggle—the quintessential situation 

involving recklessness. See Hayes v. State, 728 S.W.2d 804, 810 (Tex. Crim. App. 1987) (op. on reh’g) 

(en banc). Thus, although the jury charge included a self-defense instruction, it failed to provide the jury 

with the full array of options based on the trial evidence; the jury charge limited the jury to finding that

appellant’s conduct was either fully justified and warranted acquittal or unjustified as an intentional or 

knowing killing, omitting a potential finding that appellant’s conduct was unjustified as reckless. The 

inclusion of a manslaughter instruction would not have precluded the self-defense instruction, Alonzo, 353 

S.W.3d at 781–82, allowing the jury to decide whether appellant’s act was justified or unjustified as reckless. 
12

Third, the assertions in appellant’s statement are not so isolated that only a review 

of them in a vacuum supports the lesser-included instruction. The State compares 

appellant’s statement to the Cavazos defendant’s denial of intent, which the court of 

criminal appeals held insufficient for a manslaughter instruction. See Cavazos, 382 

S.W.3d at 385. The Cavazos ruling turned on the specific facts of that case: “Pulling 

out a gun, pointing at someone, pulling the trigger twice, fleeing the scene (and the 

country), and later telling a friend ‘I didn’t mean to shoot anyone’ does not rationally 

support an inference that appellant acted recklessly at the moment he fired the shots.” 

Id. Unlike the Cavazos defendant, appellant’s statement did not present a version of 

events that was incompatible with all the evidence. There were no trial witnesses who 

witnessed the shooting. As is often the case, the fact finder had to infer appellant’s 

mental state from the evidence. Most of the evidence simply proved a shooting occurred 

without shedding light on the circumstances of the shooting. Appellant never contested 

shooting Villarreal. Thus, gunshot residue on the passenger door of Rex’s truck, 

appellant’s phone number on Villarreal’s cellular telephone, a shell casing at the scene of 

the shooting, and even Villarreal’s statements that appellant shot him are pieces of 

evidence that supported a shooting done recklessly, intentionally, or knowingly. None of 

that evidence was inconsistent with appellant’s statement. Appellant’s mental state at 

the time of the shooting had to be gleaned primarily from Villarreal’s words to the 

responding officers or appellant’s statement—the two competing versions of events, 

neither of which were perfect.7 

 

7 The incompleteness of appellant’s statement has already been discussed. Testimony of 

Villarreal’s statements to the responding officers also contained gaps. For example, both officers claimed 
13

In appellant’s statement, appellant alleged he heard Villarreal cock his gun. 

Police officers found Villarreal’s gun with a bullet chambered, i.e. the gun had been 

cocked, and Guerra, who had retrieved the gun from the road, insisted at trial that she did 

not cock the gun. This evidence arguably supported appellant’s version; it certainly did 

not undermine appellant’s statement. Appellant said Villarreal stood up and walked into 

his property after the shooting, which Guerra’s testimony and Villarreal’s position confirm. 

This is not to say appellant’s version of events was without competition. Contrary 

to appellant’s characterization of simply responding to an unexpected threat, Deputy 

Contreras and Sergeant Davila testified Villarreal told them appellant demanded his 

money before shooting him, and Perales testified appellant told her before going to meet 

Villarreal he planned to “jack him up.” Our inquiry, however, does not consider the 

credibility of appellant’s statement or whether other evidence controverts it; anything more 

than a scintilla of evidence, regardless of however weak it is, entitles him to a lesserincluded charge. See Cavazos, 382 S.W.3d at 384–85; Goad, 354 S.W.3d at 446–47. 

We hold appellant’s statement satisfies that low threshold.

In reviewing the entire record, we also note that defense counsel relied heavily on 

appellant’s statement during closing argument.8 Defense had no opening argument, and 

 

Villarreal called appellant a friend, but Guerra testified she never heard of appellant, and she noted Villarreal 

only carried his gun to drug transactions at which Villarreal did not know the buyer. Appellant’s statement 

comported with Guerra’s testimony; appellant stated “I never have met with Balla[,] we only had a 

conversation on the phone.” More importantly, testimony that Villarreal said appellant demanded 

Villarreal’s money was the main evidence supporting an intentional or knowing killing or killing in the course 

of a robbery, but, contrary to the purposes of a robbery, officers found a “stack” of currency near Villarreal, 

which was not where Villarreal, according to any statement or evidence, was shot. Appellant did not enter 

Villarreal’s house, and there was no evidence he took any of Villarreal’s personal property. 

8 For example, the following excerpt is from defense counsel’s closing argument:
14

appellant did not testify, making defense counsel’s closing argument the only time the 

jury heard the defense’s narrative. Based on defense counsel’s reliance on the 

statement and the fact that the evidence can be construed to support appellant’s 

statement, the statement is not the type of evidence that only supports the lesser-included 

offense if plucked from the record and reviewed in a vacuum. Cf. Cavazos, 382 S.W.3d 

at 385–86; Enriquez, 21 S.W.3d at 278.

C. Harm

The erroneous refusal to give a requested instruction on a lesser-included offense 

is charge error subject to an Almanza harm analysis. See Saunders, 840 S.W.2d at 392; 

see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc). 

Under that analysis, reversal is required if the error resulted in some harm to the accused, 

“some” meaning “any.” Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en 

banc); Almanza, 686 S.W.2d at 171. The court of criminal appeals has “routinely found 

‘some’ harm, and therefore reversed, when the trial court has failed to submit a lesser 

 

We know that Mr. Scepanski saw [Villarreal’s] hand on the gun and that he pulled it and 

cocked it.

At that time, he pointed the gun. Mr. Scepanski panicked, reached for the gun 

that he didn’t even know was loaded or not loaded. And it happened in an instant. It 

wasn’t a matter of like the prosecutor wants you to believe that—did he have time to think, 

did he have time to do that or this. It was reactionary. He was afraid. He was 

intimidated. He was fearful for his life, so he pulls the gun surprising Mr. Villarreal. 

Mr. Villarreal is surprised that, oh, this person can defend himself, drops his own 

weapon to the ground, wrestles with Mr. Scepanski for the weapon that he is now pointing 

and trying to defend himself with, and the weapon goes off shooting Mr. Villarreal in the 

chest area.

We recognize but are unconcerned that defense counsel argued self-defense; the self-defense 

argument was reasonable because by the time of closing argument, the trial court had already foreclosed 

the jury’s consideration of manslaughter by denying appellant’s requested instruction.
15

included offense that was requested and raised by the evidence—at least where that 

failure left the jury with the sole option either to convict the defendant of the greater 

offense or acquit him.” Saunders, 913 S.W.2d at 571. When, however, a trial court 

submits one lesser-included offense raised by the evidence but declines to submit 

another that the evidence also raised, as is the case here:

the jury’s options [are] not limited to conviction of the greater offense or 

acquittal. Under these circumstances the Beck [v. Alabama, 447 U.S. 625, 

634 (1980)] risk that the jury will convict of the greater offense despite its 

reasonable doubt is not so apparent. There is an available compromise. 

It is at least arguable that a jury that believed the defendant committed an 

uncharged lesser included offense, but unwilling to acquit him of all 

wrongdoing, and therefore inclined to compromise, would opt for a lesser 

included offense that was submitted rather than convict him of the greater 

offense. 

Id. at 572. In Saunders, because the jury convicted the defendant of the greater offense 

rather than under the lesser-included charge that the trial court had submitted, the 

Saunders court concluded that the error of not including the refused lesser-included 

offense was harmless. Id. (“That the jury here did not [opt for the submitted lesserincluded offense] may thus indicate that the sort of ‘harm’ contemplated by Beck did not 

occur in this cause.”), 574 (“[B]ecause the jury did not opt to convict appellant of 

involuntary manslaughter, failure to authorize conviction for negligent homicide was 

harmless under Almanza and Arline.”).

Unlike the Saunders jury, the jury in this case convicted appellant of the submitted 

lesser-included offense. According to the jury charge, the jury was to convict appellant 

of murder rather than capital murder if it had reasonable doubt appellant intentionally 

caused Villarreal’s death or had reasonable doubt the killing occurred during the course
16

of a robbery. We cannot tell by the jury’s verdict of murder rather than capital murder

whether it had reasonable doubt appellant acted intentionally, was committing a robbery, 

or both. Because the jury returned a verdict on the submitted lesser-included offense, 

the “Beck risk” re-emerges, and it is not apparent, as it was in Saunders, that the jury 

would have disregarded the requested lesser-included offense. The absence of 

appellant’s requested manslaughter instruction left the jury with the sole option of 

convicting him of murder or acquitting him, either under self-defense or evidentiary 

concerns. In such circumstances, the finding of harm is essentially automatic because 

the jury was denied the opportunity to convict the defendant of the lesser offense. See 

id. at 571; Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.] 2009, pet. 

ref’d).

3. The Evidence Did Not Support an Instruction on Criminally Negligent 

Homicide.

Although criminally negligent homicide is a lesser-included offense, there was no 

evidence, including appellant’s statement, that appellant, in firing the weapon, was 

unaware of a substantial and unjustifiable risk. See TEX. PENAL CODE ANN. § 6.03(d) 

(defining criminal negligence). Because the evidence did not support an instruction on 

criminally negligent homicide, appellant was not entitled to the instruction. See Rice, 333 

S.W.3d at 145. 

D. Summary 

Anything more than a scintilla of evidence supporting a lesser-included instruction 

entitles a defendant to the instruction, regardless of whether the evidence is weak, 

impeached, or contradicted. See Cavazos, 382 S.W.3d at 383; Goad, 354 S.W.3d at 
17

446–47. Here, appellant’s statement, on which the defense heavily relied, was sufficient 

evidence to meet the low threshold, and the trial court’s error of not including the 

instruction harmed appellant. Accordingly, we sustain appellant’s first issue. Having

sustained the issue, we need not address appellant’s other issues on appeal. See TEX.

R. APP. P. 47.1. 

III. CONCLUSION

We reverse the trial court’s judgment and remand the case to the trial court. 

 

GREGORY T. PERKES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 21st

day of August, 2014.