1 John T. Boyd, Chi ef Justice (Ret.), Sev enth Court of Appeals, sitti ng by assignment. Tex . Gov ’t CodeAnn. §7 5.002 (a)(1 ) (Vern on Sup p. 200 3). NO. 07-02-0252 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E JULY 22, 2003

______________________________

JAM IE B ENITE Z, Appellant
v. THE STATE OF TEXAS , Appellee

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-438,83 2; HON. JIM BOB DARN ELL, PRESIDING

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1 Appellant Jam ie Benitez challenges his conviction of mans laughter by contending 1) the trial court erred in overruling his objection to the inclusion of an instruction on mans laughter

in the jury charge, 2) the evi den ce is legally and factually insuffici ent to support t he jury verdict of mans laughter, and 3) the trial court erred in admitting extraneousoffense evidence w hich affected his substantial rights. We affirm thejudgm ent of the trial court.2 There is e vi dence that appellant and Jacky had a contentious relat ionship, and they argued

frequen tly. 2 Backgr ound During the early m orning of April 25, 2001, appellant and his brother Jacky Benitez (Jacky) went

to a bar called Cherokee’s and m et Dorothy Cantu Guzm an (Dorothy) w hom Jacky w as dating, her niece Ashley Gom ez (Ashley), and Dorothy’s friend Eloida. They dranksome be er , a nd wh e n the bar closed, Jacky , Dorothy, and A shley drove Eloida home. They s tayed a t Eloida’ s housefor a while where ap pellant later joined them . Then Jacky, Dorothy , and appellant left to take Ashley to a friend’s apartm ent. Ashley’s f riend
was not at hom e, so they drove toa house that belonged to app ellant ’s uncle. Jacky, Dorothy, and app ell ant all got o ut of t he car w hile they w ere at t hat res idence. A fter a while, the group left to take Ashley to her father’s house. Jacky w as driving with Dorothy in the front seat, appell ant behind Jacky, and Ashley si tting behi nd Dorothy. At so me t i me during all of this driving around, appell ant and Jacky bega n to argue. 2 While on the way to Ashley’s father’ s house, Jacky stopped the car

and told appellant to get out. Appellant did notseem to want

to get out, but Jacky

got out and opened the door for him. Appellant then got out and the two continued to argue. Appella nt shot Jacky with a gun, and Jacky later died as a result of the woun d. Four shell casings were found a t the scene. Appellant w as in dicted f or t he o ffe nseof m urd er, i.e. inte ntio nally and know ingly causing the death of

an individual. However, the j ury was also instructed on the les serincluded offens es of m anslaughter and cri minally negligent homicide. The j ury found appellant guilty of manslaughter.3 The St ate is e qual ly ent it le d to seek a ch arg e on a le sser o ff ense when it feels that t he proof has fal len short of prov ing the charg ed offens e. Ford v. Sta te, 38 S.W .3d 836, 840 (Tex. App.--Houston [14 th Dist.] 2 001, p et. ref’d)

.

4 The re i s n o evi dence that Jacky was carrying a weapon on the night he was sh ot by appellan t

. How ever, there is

evidence that Jacky w as la rger th an ap pellant a nd ha d wo n so me boxing con tests

.

3 Issue One - I

nstruction on Lesser-Included Offense In his firs t is sue , ap pella nt com plain s th at t he t rial cour t er red in overr uli ng hi s objection to thecharge on the les ser-included offens e of m anslaughter. He argues that there is no evidence that if he is guilty, he is guilty only of manslaughter, i.e. act ing recklessly. W e overrule the issue. In this instance, appellant initial ly requeste d that the inst ructions on the les serincluded offenses of m anslaughter and criminally negligent homicide be removed from the charge while the Staterequested the inclusion of the inst ruction on m anslaughter. 3 W hen appellant m ade his m ore for m al ob j ect ion, he o nly o bj ected to th e in str uction on
ma nslau ghter

on the b asis that

m anslaughter was m utually ex clusive of

his prim ary defense of self-defe nse 4 and would serve to conf use the j ury. A t the t ime the cou rt
ove rru le d his objection, appellant then requested that the instruction on crim inal l y negligent homicide also be included in the charge. An instruction on a lesser-included offense is proper w hen 1) the lesser-included offense is included within the proof neces sary to establish the offense charged and 2)
so me evidence ex ists in the record that w ould permit a rational jury to find that if the defendant

is guil ty, he is

guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d4

666, 67 2- 73 (T ex . C ri m. App.), cert. deni ed, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). To satisfy the second requirem ent, it is not enough that the jury m ay disbel ieve
cruc ial evi dence pertaining to the greater offense. Bigna ll v. St ate, 887 S.W.2d 21, 24 (T ex. Crim. A pp. 1994). Instead, t here m ust be som e evidence direc tly germane to the lesser offense me aning that there m ust be evidence affirm atively showing that appellant only comm itted the lesser offense. Id. That evidence m ay com e from any source, Lugo
v. State, 66 7 S. W .2 d 1 44 , 1 47 (T ex. Crim . A pp. 198 4), and any thin g m ore tha n a s cint illa of evid enc e is sufficient to entitle a party to a charge on a lesser-included offense. Ferrel
v. State, 55 S.W.3d 586, 589 (Tex. Crim . App. 2001); Means v. State, 955 S.W.2d 6 86, 691 (Tex. Ap p.--Am arillo 1997, pet. ref’d, untimely filed ). Negating an element of the greater offense or presenting testim ony sub ject to differing interpretations when one interpretation sup po rt s th e l es se r o ff en se ar e t wo ways of satisfying the burden. Schweinle
v. State, 915 S.W.2d 17, 19 (Tex. Crim . App. 1996). Further, it doesnot m atter wheth er thatevidence is credible, controverted, or in conflict with other evidence. Moorev. State, 969 S. W .2d 4, 8(Tex . Crim . App. 1998). Final ly, when dete rmining w hether the State w as entitled to the charge on
m anslaughter, we m ust view the evidence in the light most favorable to th e requesting party. Granger v. State, 3 S.W.3d 36, 38(Tex . Crim . App. 1999). Further, the instruction may be subm itted even over the defendant’ s objec tion, assum ing evidence supports its subm ission. Willi

s v. State , 761 S.W.2d 434, 435-36 (Tex. Ap p.–Houston [14 th Dist.] 1988, pet. ref’d).5

Here, app ellan t was c har ged w ith in ten tion ally

and know ingly causing the death of Jacky. T EX . P EN . C ODE A NN . §19.02(b)(1) (Vernon 2003). A person com mitsma nslaughter if he recklessly causes the dea th of an individual. Id. §19.04. A person acts re ckl ess ly with respect to circum stances surrounding his conduct or the result of his conduc t when h e is aware of bu t cons ciously disre gards a substa ntial and unj ustifiable ri sk that th e circumstances exist or the resu lt will occur. Id. §6.03(c). That risk m ust be of such a nature and degree that its disregard is a gross deviation f

rom the standard of care that an ordinary person would ex ercise under

all the circumstances

. Id. Als o, m ans laug hte r is
a less er- inclu ded off

ens e of m urd er b eca useit re quir es aless culp able me ntal state. T EX . C ODE C R IM . P ROC
. A NN . art. 37.09 (3) (Vernon 1981); see also Moore v. State, 969 S.W.2d 4, 9 - 10 (T ex . C ri m. App. 1998). The obligation to subm it an instruction on this particular lesser-included offense arises w hen the record contains som e evidence that the defendant did not intend the resulting death nor knew that it was reas onably certain to occur. Jones v. State , 963 S .W.2d 177, 180 (Te x. A pp.–Fort W orth 199 8, pet. ref’d). Ne xt , appel lant did not testify, but gave a w ritten statem ent to police, which w as admitted into evidence. In that statem ent, he said that Jacky wasgoing to “com e at [him] ,” and he adm itted firing the gun. How ever, he also stated that h e “didn’t put the gun straight up” but held it a nd “ fire d it

down.” A ppellant further said that he believed his brother was “gonna chase [him] dow n”; so, he shot at the victim’s foot “to stop him .” He also professed thatthe shooting wa s not “prem editated,” that he did not want to shoot his brother, that he did not know Jackyw as s hot , an d th at h e fir ed toward s th e gr

oun d an d Ja cky ’s foo t on ly to stop Jacky f

rom c hasing him. Approxim ately four shots w ere fired. The police verified5 There are also cases in which it has been h e ld that reckl essness is raised even though the

defenda nt conscious ly pulled th e trigge r of a gun

. See Be ll v. Sta te, 69 3 S .W.2 d 4 34 , 4 43 -4 4 ( Te x. C rim

. App. 19 85 ) (t he de fend an t s aid he fired four sh ots in the air to s care s omeone a lthough the s hots wen t into an occup ied trailer); Johnson v. Sta te, 828 S.W.2d 511 , 514 - 15 (Tex. A pp. --W aco 1992, pet. ref ’d) (the defendant shot twicewhile wre stling with the victim); Mulli ns v. State

, 767 S.W.2d 166, 169-70 (Tex. App.-- 6 thatthere were three go uges in the pavem ent, indicating that som eone had shot into the ground. An officer also testified that the recoil from four bullets shot in rapid succession
w ould cause the w

eapon’s aim or bullet’s trajectory to rise. The f or eg oi ng i s s ome evidence from w hich a jury could r easonabl y i nfer tha t appellant fired at the ground to
scare or warn Jac ky and that hedid so w ithout th e m ens rea to com m it m urder ( i.e. intentional or knowing). Thus, there wasmo re than a scintilla of evidence from w hich a rational jury could conclude that if appellant was guilty, he was guilty only of the lesser offense. Appellant argues that since he w as pursuing the claim of s elf-defense, the trial court
cou ld not sub m itthe instruction on ma nslaughter. This is allegedly so because one cannot act accidentally or recklessly in self-defense. Whi le authority holds this to be true, e.g., Martinez v . St ate , 16 S .W.3d 845, 848 (Te x. A pp.--Ho uston [ 1st Dist .] 2000 , pet. ref’d), Avilav. State , 954 S.W. 2d 830, 84 3 (Tex. A pp.--El Paso 1997, pet. ref’d), Johnson v. State , 915 S.W.2d 653, 659 (Tex. A pp.--Houston [14th Dist.] 1996, pet. ref’ d), it is also true thatif som e evidenc e appear s of record supporting the submission of both sel f-defense and ma nslaughter, then the trial court may subm it both issues to the j ury. O’Bri en v. State , 89 S.W .3d 753, 755-56 (Tex. App.–Houston [1st Dist.] 2002, no pet.); ac c ord , Jones v. State , 984 S.W .2d 254, 257 (T ex. Crim. App. 1998) (stating that if there i s evidence which raises a lesser-included offense, an instruction on the lesser offense shou ld be given even if the evi dence d oes not fit in w ith the large r them e of thedefenda nt’s testim ony). 5Houston [1 stD ist. ] 1 9 8 8 , p e t. r e f’ d ) (t h e ju ry co u ld h a ve inf erred the defendant rec klessly fi red a warning shot intended to hit a v acant apart ment); Herna ndez v. State, 742 S.W.2d 841, 84 3 (Tex. App.- -Corp us C hristi 1987, no p et.) (the defendant testifi ed he merely tried to scare the vict im away). 7 Moreo ver, Martinez, Avila , and th e othersare distingu ishable sincethe records th ere did not contain som e evidence of recklessness. O’Bri en v. State , 89 S.W.3d at 756. Issues Two and Three - S ufficiency of the Evidence In his second and third issues, appellant com plai ns that the evidence is neither legal ly nor factua lly suffi cient to suppo rt the jury’s verdict. W e overrul e the issues. The standards of review applicable to determining w het her theevid enc e is lega lly and factually sufficient to support a conviction are w ell-settled. W e refer the p arties to Jackson v. Vi

rgini a, 443 U.S. 307, 319, 99 S. Ct . 2781, 61 L. Ed. 2d 560 (1979), Si ms v. State, 99 S.W.3d 600, 601 (Tex. Crim. A pp. 2003), Zuliani v. State, 97 S.W.3d 589, 593-94 (T ex. Crim. A pp. 2003), and King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim . App. 2000) for exp lanation. Fu rt her, we havealready iterated the elementsrequired to prove the offense of m anslaughter as well as the evidence regarding the issue of recklessness. Recklessness and dan ger are presum ed if a defendant know ingly points afirearm ator in the direction of another. T EX . P EN . C ODE A NN . §22 .05 (c)(V ern on 2 003 ). I n th is instance, an d a s d i sc us se d i n t he pr ec ed i ng i ss ue , t he re i s s ome evidence that appellant acted recklessly in causing the death of Jacky . That evidence also would permit a rational j ury to conc lude , be yon d re aso nab le doubt, that though appell ant aimed in hi s brother’s direction and fired, he did not intentionally or knowingly cause his deat h. Furt hermore, neither conclusion would be m anifestly unjust or aga i nst the evidence of record. Accordingly, the verdict enj oys both legally and factually sufficient support.8 Issues Four and Five - E xtraneous Offense Via his fourth and fifth issues, appellant argues that the trial court erred in overruling his objection under R ule 403 of the Rules of Evidence to the adm i ssion of evi dence regarding an extraneous offense w hich affecte d hi s substantial rights. We overrul e the issues. The ev idence a ppellant complains of is testim ony from Anna Martinez (A nna), a former girlfriend of appell ant who w as dating Jac ky at t he t im e of his death. Acco rding to Anna, appellant thr

eat ene d he r ar

oun d 2: 00 a .m . on Ap ril 25, 2001, by telling her that she
was going to end up dead since she w as “disrespecting ” him. Then, he patted w hat appeared to h er to betheout line o f a g un u nde r hisshir t. Ap pella nt o bj ected to th is evidence on the basis that its probative value w as substantially outweighed by its prejudicial value. Assum ing arguendo , that the adm ission of this testimony was erroneous , we find the purporte d error ha rm less. As a cknowledged by appellant in his brief, the State proffered the evidence to rebut his claim of self-defense. That is, the ev idence was tendered in an eff

ort to s how tha t ap pella nt in ten ded to k ill those who “d i sr es pe ct ed ” h i m, which, according to appellant, Jacky did on the night of the shooting. Furtherm ore, the trial court restricte d its consideration to the issue of intent. Yet , the ju ry did not find that appellant inte ntio nally

or k now ingly

m urd ere d hisbrother. That is, it did notfind that he acted w ith t he m ensrea sup pos edly evinced by the threat toAnna. Instead , the ju ry found he acted r

eck less lywhen he p ointed the gun towards the ground and shot in the direction of Jacky ’s foo t. Thus , the j uryeith er d isc red ited thepur por ted ly in adm iss ible testimon y or9

found it unpersuasive. Given thi s, we cannot say that the eviden ce had any influence on the verdict m uch less the substantial influence required by Rule of AppellateProce dure 44 .2 (b ) t o i l l us tr at e h ar m. Accordingly, the j udgme nt of the trial court is affirmed.

Per Curiam Do not publish.