Opinion issued July 24, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00768-CR

———————————

DARRYL THOMAS REED, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Case No. 1326043

MEMORANDUM OPINION

A jury convicted Darryl Thomas Reed of capital murder, and the trial court 

assessed punishment at confinement for life without the possibility of parole.1In 

 

1

See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013) (defining capital 

murder as intentional murder in course of committing or attempting to commit 

robbery). 
2

his sole issue, Reed contends that the trial court abused its discretion by not 

instructing the jury on the lesser-included offense of manslaughter. We affirm.

Background

One night, Reed and several friends decided to order pizza from a local 

restaurant and then rob the delivery driver at gunpoint when he arrived. One friend 

placed the order and gave the restaurant the delivery address of a vacant house 

nearby. When the driver, Phillip Little, arrived at the abandoned house, Reed and 

two others approached the car with loaded guns. Pointing guns at the car, one of 

them told Little to “give it up, give it up.” 

According to Reed, Little quickly shifted gears and tried to drive away, 

almost hitting Reed with the car. Reed responded by firing four shots at Little’s 

car. One of the four shots went through the car’s rear window, hitting Little in the 

back and causing him to slide down into the car seat. Little’s car then swerved off 

of the road and crashed into the fence of a nearby house. When the police officers 

arrived at the scene, Little was unresponsive. Little was later pronounced dead 

upon his arrival at the hospital. 

After learning of Little’s death, Reed contacted the police to give his version 

of the shooting. In a recorded statement, Reed admitted to shooting Little and 

apologized, saying that it was an accident and that he “didn’t mean to kill [Little].” 
3

Based on his confession, Reed was charged with capital murder. At trial, 

before the State rested its case, the trial court gave both parties a proposed jury 

charge, which included instructions on capital murder and the lesser-included 

offense of felony murder. Reed objected to the proposed charge, and requested an 

instruction on manslaughter, based upon Reed’s statement that he had not intended 

to kill Little. 

While Reed did not testify at trial, the jury heard evidence of his recorded 

statement. At the close of evidence, the trial court again reviewed the proposed 

jury charge and again Reed requested an instruction on manslaughter. The trial 

court denied his request. The final charge instructed the jury on capital murder and 

felony murder. 

The jury found Reed guilty of capital murder and assessed punishment at life 

confinement, without the possibility of parole. Reed timely appealed. 

Lesser-included Offense

Reed contends that the trial court should have instructed the jury on the 

lesser-included offense of manslaughter because there was “more than a scintilla of 

evidence that [he] acted only recklessly” in causing Little’s death and that he did 

not shoot Little in furtherance of the attempted robbery. The State responds that 

Reed was not entitled to a manslaughter instruction because the same evidence that 

would have supported an instruction on manslaughter also supported the court’s 
4

instruction on another lesser-included offense, felony murder. See TEX. PENAL 

CODE ANN. § 19.02(b)(3) (West 2011) (defining felony murder).

A. Standard of review

When a defendant raises a claim of jury-charge error, we apply the 

procedure set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 

1985). We first determine whether there was error in the charge. Id.; McIntosh v. 

State, 297 S.W.3d 536, 542 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). If 

the charge was erroneous, we then consider whether the error was harmful. 

Almanza, 686 S.W.2d at 172; McIntosh, 297 S.W.3d at 542. An erroneous jury 

charge requires reversal when the defendant has properly objected to the charge 

and we find “some harm” to his rights. Almanza, 686 S.W.2d at 171; see McIntosh, 

297 S.W.3d at 542. 

B. Applicable law on lesser-included offense instructions

The Texas Code of Criminal Procedure states that “in a prosecution for an 

offense with lesser included offenses, the jury may find the defendant not guilty of 

the greater offense, but guilty of any lesser included offense.” TEX. CODE CRIM.

PROC. ANN. art. 37.08 (West 2006). A lesser-included offense is one that

(1) is established by proof of the same or less than all the facts 

required to establish the commission of the offense charged;

(2) differs from the offense charged only in the respect that a less 

serious injury or risk of injury to the same person, property, or 

public interest suffices to establish its commission;
5

(3) differs from the offense charged only in the respect that a less 

culpable mental state suffices to establish its commission; or

(4) consists of an attempt to commit the offense charged or an 

otherwise included offense.

Id. art. 37.09 (West 2006).

A trial court has a responsibility to instruct the jury on “the law applicable to 

the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Lesser-included 

offenses, however, are not considered law applicable to the case; they are 

defensive issues, which “frequently depend upon trial strategy and tactics” to 

determine if they should be requested. Tolbert v. State, 306 S.W.3d 776, 780 (Tex. 

Crim. App. 2010). A trial court has a duty to instruct the jury on lesser-included 

offenses only if a party has made a proper request. See id. at 779–80 (noting that 

trial courts are “not statutorily required to sua sponte instruct” jury on lesserincluded offenses); cf. Ford v. State, 38 S.W.3d 836, 840 (Tex. App.—Houston 

[14th Dist.] 2001, no pet.) (stating trial court may sua sponte instruct jury on 

lesser-included offenses, but not statutorily required to do so). 

C. Whether the charge was erroneous

Courts apply a two-step analysis when determining whether a trial court 

should have granted a request for an instruction on a lesser-included offense: first, 

they determine whether the requested offense is a lesser-included offense by 

comparing the elements of the two offenses. Young v. State, 428 S.W.3d 172, 175 
6

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing Hall v. State, 225 S.W.3d 

524 (Tex. Crim. App. 2007). If the requested offense is a lesser-included offense of 

the charged offense, then they determine whether any evidence adduced at trial 

would support instructing the jury on the lesser-included offense. Id. at 176; see 

Hall, 225 S.W.3d at 536 (stating that evidence must support lesser-included 

offense as “valid, rational alternative to the charged offense”). The standards for 

whether the evidence is legally sufficient to convict a defendant of an offense and 

whether the evidence is sufficient to require a lesser-included offense are “quite 

different.” Wasylina v. State, 275 S.W.3d 908, 909 (Tex. Crim. App. 2009) 

(citation omitted). “The evidence could easily be legally sufficient to support a 

conviction for a lesser-included offense but not justify the submission of a lesserincluded-offense instruction because the evidence does not show that the defendant 

is guilty only of the lesser-included offense.” Id. at 909–10; see Jimenez v. State, 

419 S.W.3d 706, 712 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (applying 

Hall and noting that defendant is entitled to instruction on lesser-included offense 

only when evidence shows he is guilty only of lesser-included offense). 

Reed contends that his recorded statement provided evidence to support a 

jury’s conclusion that his actions were “sufficiently detached from the robbery” 

and, therefore, “trigger[ed] consideration of manslaughter” as a lesser-included 

offense.
7

1. Manslaughter is a lesser-included offense of capital murder as 

charged

We first consider whether manslaughter is a lesser-included offense of 

capital murder. Hall, 225 S.W.3d at 535 (“The first step in the lesser-included 

offense analysis [is] determining whether an offense is a lesser-included offense of 

the alleged offense . . . .”). A person commits capital murder if he intentionally 

commits murder in the course of committing or attempting to commit another 

felony, including robbery. TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 

2013). A person commits manslaughter if he recklessly causes the death of another 

person. TEX. PENAL CODE ANN. § 19.04 (West 2011). 

Reed was charged with capital murder as follows:

[T]he Defendant, heretofore on or about November 2, 2011, did then 

and there unlawfully while in the course of committing and attempting 

to commit the robbery of Phillip Little, intentionally cause the death 

of Phillip Little by shooting Phillip Little with a deadly weapon, 

namely a firearm. 

Both parties agree that, as alleged in this case, manslaughter is a lesser-included 

offense of capital murder. See Moore v. State, 969 S.W.2d 4, 9–10 (Tex. Crim. 

App. 1998) (noting that voluntary manslaughter is lesser-included offense of 

capital murder); Gilbert v. State, 196 S.W.3d 163, 165–66 (Tex. App.—Houston 

[1st Dist.] 2005, pet. ref’d) (same). Accordingly, we must address whether there 

was sufficient evidence to support instructing the jury on that offense. Hall, 225 

S.W.3d at 536 (noting that second step of analysis requires courts to ask whether 
8

“the elements of the lesser offense [are] ‘established by proof of the same or less 

than all the facts required to established the commission of the offense charged’?” 

(citation omitted)). 

2. Whether Reed was entitled to a manslaughter instruction 

We consider all of the evidence admitted at trial and determine whether 

there is “more than a scintilla of evidence” entitling the defendant to a lesser 

charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Bridges v. 

State, 389 S.W.3d 508, 511–12 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 

We may not, however, consider the “credibility of the evidence and whether it 

conflicts with other evidence or is controverted.” Goad, 354 S.W.3d at 446–47 

(citation omitted); see Bridges, 389 S.W.3d at 512. 

Also, “when the evidence relied upon to raise the requested lesser-included 

offense establishes a lesser-included offense that is greater than the one requested, 

then the defendant is not entitled to his requested submission.” Hudson v. State, 

394 S.W.3d 522, 525 (Tex. Crim. App. 2013); see, e.g., Flores v. State, 245 

S.W.3d 432, 439 (Tex. Crim. App. 2008) (holding that defendant charged with 

murder was not entitled to instruction on deadly conduct when “the evidence on 

which the defendant is relying raises another offense that ‘lies between’ the 

requested and charged offenses”). 
9

Here, in addition to capital murder, the trial court also instructed the jury on 

felony murder. A person commits felony murder if he commits or attempts to 

commit a felony, other than manslaughter, and in the course of and in furtherance 

of the commission or attempt, or in immediate flight from the commission or

attempt, commits or attempts to commit an act clearly dangerous to human life that 

causes the death of another person. TEX. PENAL CODE ANN. § 19.02(b)(3) (West 

2011). The evidence suggests two possible underlying offenses to support the 

jury’s conclusion that Reed committed felony murder: robbery and deadly conduct. 

See Washington v. State, 417 S.W.3d 713, 721 (Tex. App.—Houston [14th Dist.] 

2013, pet. ref’d) (noting deadly conduct is underlying felony for felony murder);

Ortiz v. State, 144 S.W.3d 225, 232–33 (Tex. App.—Houston [14th Dist.] 2004, 

pet. ref’d) (noting deadly conduct is lesser-included offense of murder when there 

was some evidence that defendant recklessly shot firearm and fatally injured 

another person).

A person commits felony deadly conduct when he recklessly engages in 

conduct that places another in imminent danger of serious bodily injury by 

knowingly discharging a firearm at or in the direction of one or more individuals or 

a vehicle, with reckless disregard for whether the vehicle is occupied. TEX. PENAL 

CODE ANN. § 22.05(a)–(b) (West 2011); see id. § 19.02(b)(3); Washington, 417 

S.W.3d at 721. 
10

Reed denied that he intended to kill Little, but he admitted that he fired at 

Little’s vehicle, knowing that Little was driving it. This evidence is sufficient for a 

jury to conclude that Reed committed the underlying offense of deadly conduct. 

See TEX. PENAL CODE ANN. § 22.05 (b), (c) (West 2011) (stating that person 

commits deadly conduct by knowingly discharging firearm at or in direction of 

occupied vehicle and that recklessness and danger are presumed if actor knowingly 

points firearm at or in direction of another whether or not actor believed firearm to 

be loaded). Thus the intermediate offense of felony murder based on deadly 

conduct foreclosed an instruction on the even lesser-included offense of 

manslaughter that Reed requested. 

In support of his contention that the evidence supported an instruction on 

manslaughter, Reed distinguishes his circumstances from those in Gadsden v. 

State, 915 S.W.2d 620, 622–23 (Tex. App.—El Paso 1996, no pet.) (holding trial 

court did not err by not instructing jury on involuntary manslaughter when jury 

could not have convicted defendant only of that crime) and Fernandez v. State, No. 

14–04–00144–CR, 2005 WL 2076492 (Tex. App.—Houston [14th Dist.] Aug. 30, 

2005, pet. ref’d) (mem. op., not designated for publication) (holding that trial court 

was not required to instruct jury on manslaughter when there was sufficient 

evidence that defendant had committed intermediate lesser-included offense of 

felony murder). Specifically, Reed contends that, unlike Fernandez and Gadsden, 
11

he fired his weapon in a “reckless” response to Little almost hitting him with his 

car—and not in furtherance of committing a robbery. However, robbery was one of 

two available felonies to support a felony murder charge, and we have already 

concluded that there was sufficient evidence for the jury to conclude that Reed 

engaged in deadly conduct to support a felony murder instruction.2

Accordingly, we conclude that that the trial court did not err by refusing to 

instruct the jury on manslaughter.3

We overrule Reed’s sole issue. 

 

2

The evidence that Reed shot at Little while in immediate flight from the attempted 

robbery could also support a jury’s conclusion that he had committed felony 

murder based. See TEX. PENAL CODE ANN. § 19.02(b)(3) (defining felony murder 

as committing or attempting to “commit a felony, other than manslaughter, and in 

the course of and in furtherance of the commission or attempt, or in immediate 

flight from the commission or attempt, commit[ting] or attempt[ing] to commit an 

act clearly dangerous to human life that causes the death of an individual.” 

(emphasis added)).

3 We do not reach the issue of harm because we conclude that Reed was not entitled 

to an instruction on manslaughter. Even assuming that Reed was entitled to the 

manslaughter instruction, the omission of that instruction was harmless because 

the jury rejected the lesser-included intermediate offense of felony murder and 

found sufficient evidence to convict him of the charged offense of capital murder. 

See, e.g., Masterson v. State, 155 S.W.3d 167, 171–72 (Tex. Crim. App. 2005) 

(holding that any error caused by not instructing jury on criminally negligent 

homicide was harmless when defendant was convicted of charged offense of 

capital murder and jury rejected the lesser-included intermediate offense of 

manslaughter); Flores v. State, 215 S.W.3d 520, 530 (Tex. App.—Beaumont 

2007), aff’d, 245 S.W.3d 432 (Tex. Crim. App. 2008) (holding that any error in 

not instructing jury on felony murder was harmless when trial court instructed jury 

on manslaughter and injury to child and jury found defendant guilty of greater 

charged offense). 
12

Conclusion

We affirm. 

Harvey Brown

Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).