Jose Luis Acosta v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00470-CR
NO. 02-13-00471-CR
JOSE LUIS ACOSTA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1304126R, 1304127R
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MEMORANDUM OPINION1
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A jury found Jose Luis Acosta, Appellant, guilty of attempted capital
murder and murder. In three issues, Appellant contends (1) the trial court erred
in admitting photographs showing the deceased’s wounds and other injuries, (2)
the trial court erred by admitting testimony of some of Appellant’s recorded
1
See Tex. R. App. P. 47.4.
telephone conversations from jail, and (3) the trial court erred by denying his
requested jury instructions on lesser-included offenses and accident. We affirm.
Background
In trial court cause number 1304126R (appellate court cause number 02-
13-00470-CR), a jury convicted Appellant of the attempted capital murder of
Eduardo Bustos and Savana Rodriguez. See Tex. Penal Code Ann. § 15.01(a)
(West 2011) (“A person commits an offense if, with specific intent to commit an
offense, he does an act amounting to more than mere preparation that tends but
fails to effect the commission of the offense intended.”), § 19.03(a)(7)(A) (West
Supp. 2014) (defining capital murder as when “the person murders more than
one person . . . during the same criminal transaction”). The offense is a first
degree felony. Id. §§ 15.01(d), 19.03(b). The jury thereafter assessed his
punishment at fifty years’ confinement and a $5,000 fine.
In trial court cause number 1304127R (appellate cause number 02-13-
00471-CR), the jury convicted Appellant of the murder of Eduardo Bustos.
Id. § 19.02(b)(1)–(2) (West 2011). This offense too is a first degree felony.
Id. § 19.02(c). The jury assessed his punishment for this offense at ninety-nine
years’ confinement and a $10,000 fine.
Summary of Evidence
At one time Appellant, Michael Cucuta, and Eduardo Bustos sold drugs
together. Bustos told Jesus Hernandez that he no longer wanted to sell drugs
and wanted to change his life. Thereafter rumors started that Bustos was a
2
snitch; Bustos became concerned because being a snitch is dangerous. In
addition to rumors about Bustos’s being a snitch, which potentially placed Bustos
at odds with Appellant and Cucuta, at least one of Bustos’s friends, Hernandez,
was aware that Bustos had had sex with Miriam Gonzalez—the mother of
Appellant’s children.
On October 9, 2011, Bustos and his girlfriend, Savana Rodriguez, were
inside their apartment at Creek Hollow Apartments. Hernandez arrived at their
apartment late at night, and Appellant arrived about thirty minutes later.
Hernandez left about an hour-and-a-half to two hours later, after which Appellant
used Rodriguez’s phone, and not long thereafter, Cucuta arrived.
After Cucuta arrived, Appellant asked Bustos if he had “messed around”
with Gonzalez. Bustos responded that he had. Appellant pulled a gun from
behind his back and pointed it at Bustos’s face. Appellant also questioned
Bustos about being a snitch, but Bustos denied being a snitch. Rodriguez tried
to move away, but Appellant grabbed her by the hair and put the gun to her
head. When Bustos protested, Appellant aimed the gun back at Bustos while
continuing to hold Rodriguez by her hair. Appellant then instructed Cucuta to hit
Bustos with a liquor bottle; Cucuta, after initially grabbing a bottle and raising it
above his head as if to strike Bustos, never struck Bustos but, instead, dropped
the bottle. Appellant then instructed Cucuta to search the bedroom for cash and
for an AK-47 assault rifle that Appellant thought Bustos had.
3
While Cucuta was in the bedroom, Bustos told Appellant, who was still
holding Rodriguez by the hair, to leave her alone. Bustos then tackled Appellant.
Rodriguez said, “They were fighting a little, and the gun started going off.”
Rodriguez tried to run, but Appellant jumped up quickly and shot her in the hip
before she reached the door. Rodriguez said she fell to the floor and was fearful
that Appellant would shoot her again; she heard noises that sounded like
Appellant was trying to fire the gun again but the gun did not go off. Appellant
and Cucuta then ran out of the apartment. Including the time Appellant fired at
her, Rodriguez thought she heard about four or five gunshots overall.
Bustos died. The medical examiner described Bustos as a healthy young
adult, except for three gunshot wounds. The medical examiner testified Bustos
died from the gunshot wound to the chest.
Admission of Photographs
In Appellant’s first issue, he argues that the trial court erred by allowing
highly prejudicial and gruesome autopsy photographs to be admitted into
evidence over his objections. He complains that the photographs, State’s
Exhibits 44, 45, 46, 47, and 48, should have been excluded under rule 403 of the
rules of evidence. Tex. R. Evid. 403.
State’s Exhibit 44 shows the left side of Bustos’s head, face, neck, and
upper shoulder. The photograph shows blunt-force injuries to Bustos’s forehead,
frontal scalp at the hairline, and parietal scalp. The medical examiner testified
that, based on the shape of the injuries, the blows came from an object with a
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rectangular face and could have been inflicted with the butt of an automatic pistol
or something with a similar configuration.
State’s Exhibit 45 shows Bustos’s left shoulder and upper arm to the
elbow. The left side of Bustos’s chest is visible as well as the fatal wound to the
axilla. Also visible is the cut with the stitches caused by a thoracotomy that the
surgeons performed when opening Bustos’s chest to assess his internal injuries
and below that, a chest-tube incision for a chest drain. The medical examiner
said, however, that the major focus of this photograph was the gunshot wound to
Bustos’s upper arm. The medical examiner explained how the dark discolored
area indicated a soot and gunpowder deposit, which meant a contact wound.
There were two bruises—one a semicircular bruise from the edge of a gun
muzzle and the other a rectangular abrasion that was most likely caused by the
breech’s guide coming back when the weapon was fired while in contact with
Bustos’s skin.
State’s Exhibit 46 depicts the axilla and nearby surgical activity. The
medical examiner explained that the circular wound with heavy soot and powder
around it, as well as the abrasion and bruise above it from the edge of the gun
muzzle, meant that it was a contact gunshot wound. The medical examiner said
the bullet went through Bustos’s diaphragm, continued through his stomach next
to the pancreas, damaged a portion of the splenic artery, which he said was “a
pretty good-sized artery – ble[]d quite a bit,” and took out blood vessels to his left
kidney, which the medical examiner summarized as “major.”
5
State’s Exhibit 47 shows Bustos’s right arm with a clamp and intravenous
line for fluid administration still present. The medical examiner said that the
injury the jury was to focus on was the gunshot wound to Bustos’s forearm.
Based upon the circular defect with an abrasion at the margin and the tiny prick
abrasions where gunpowder struck and damaged the skin, the medical examiner
said the wound was an intermediate one fired from within a foot of Bustos’s body.
State’s Exhibit 48 shows the projectile and fragments after their removal
from Bustos’s body during the autopsy.
Rule 403 provides that relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.” Tex. R. Evid. 403; Sanchez v.
State, 418 S.W.3d 302, 310 (Tex. App.—Fort Worth 2013, pet. ref’d). Rule 403
favors the admission of relevant evidence and presumes that relevant evidence
will be more probative than prejudicial. Sanchez, 418 S.W.3d at 311. Factors
courts may consider when determining whether the probative value of
photographs is substantially outweighed by the danger of unfair prejudice are the
number of exhibits offered, their gruesomeness, their detail, their size, whether
they are in color or black-and-white, whether they are close up, whether the body
depicted is clothed or naked, the availability of other means of proof, and other
circumstances unique to the individual case. Id.
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Whether to admit photographs over an objection is within the trial court’s
sound discretion. Id. We reverse the trial court only if it acted outside the zone
of reasonable disagreement. Id. Autopsy photographs are generally admissible
unless they depict mutilation caused by the autopsy itself. Id. Photographs
depicting the nature, location, and extent of a wound are probative enough to
outweigh any prejudicial effect. Id. The court of criminal appeals has rejected
the premise that visual evidence accompanying the oral testimony is either
cumulative of oral testimony or of insignificant probative value. Id. at 312 (citing
Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999), cert. denied,
528 U.S. 1082 (2000)). “Visual evidence accompanying testimony is most
persuasive and often gives the fact finder a point of comparison against which to
test the credibility of a witness and the validity of his conclusions.” Chamberlain,
998 S.W.2d at 237.
The five photographs are in color and measure about eleven by sixteen
inches. Although some of the photographs showed medical procedures
performed by doctors to determine the extent of Bustos’s injuries and to keep him
alive, that does not make the probative value of the photographs substantially
outweighed by the danger of unfair prejudice under rule 403, especially where,
as here, the medical examiner was careful to differentiate between injuries
suffered by the gunshot wounds and other cuts and incisions caused by the
doctors while trying to save Bustos’s life. See Sanchez, 418 S.W.3d at 311–12;
see also Green v. State, 2009 WL 4575146, at *5 (Tex. App.—Houston [14th
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Dist.] Dec. 8, 2009, pet. ref’d) (mem. op., not designated for publication). The
photographs do not depict any mutilation caused by the autopsy, and they are no
more gruesome than would be expected from the type of injuries Bustos
suffered. See Sanchez, 418 S.W.3d at 312. “The photographs are gruesome in
that they depict disagreeable realities, but they depict nothing more than the
reality of the brutal crime committed.” Chamberlain, 998 S.W.2d at 237. “And it
is precisely because they depict the reality of this offense that they are powerful
visual evidence, probative of various aspects of the State’s case.” Id. Therefore,
we hold that the probative value of the autopsy photographs was not
substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid.
403. Therefore, we hold the trial court did not abuse its discretion by admitting
State’s Exhibits 44, 45, 46, 47, and 48 into evidence, and we overrule Appellant’s
first issue.
Testimony about Appellant’s Recorded Jail Calls
In Appellant’s second issue, he asserts that the trial court erred by allowing
a detective to testify as to the contents of recorded jail calls over Appellant’s
hearsay and Confrontation Clause objections. Appellant complains that the
conversations were harmful because they contained at least tacit admissions of
guilt.
Detective Danny Paine of the Fort Worth Police Department Homicide Unit
testified about the contents of recorded jail calls between Appellant and two other
individuals. Detective Paine testified that in one phone call between Eduardo
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Gorostieta and Appellant, Gorostieta asked Appellant, “Is [Cucuta] going to say
you did it or what?” Appellant responded, “Yeah, he’s going to tell him that I did
it.” Appellant added that Cucuta was a “bitch-ass ho-ass nigga” and that he was
going to knock Cucuta out the next time he saw him. Detective Paine stated in a
later call between Gorostieta and Appellant, Gorostieta asked Appellant about
Rodriguez, and Appellant responded that she was going to identify him and had
already identified him. Later Gorostieta asked Appellant about someone named
China or Chino (Hernandez was also known as Chino), and when Appellant
realized who Gorostieta was talking about, Appellant called him a “snitching
bitch-ass nigga.” Detective Paine discussed a third call between Appellant and
Gonzalez and the conversation turned to the fact that Gonzalez was pregnant by
someone other than Appellant. Detective Paine said that when they discussed
the name of the baby, Gonzalez responded, “Well, the father of my unborn child
told me that Jarison is the name of the guy he killed, and he wants me to name
the child that.” Detective Paine said that Appellant responded, “No, you can’t
name him that,” and then laughingly added, “Well, I guess you should name him
Ed or Eduardo then.”
A trial court’s ruling on the admissibility of evidence is generally reviewed
for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.
App. 2003). A trial court abuses its discretion when it acts without reference to
guiding rules or principles or acts arbitrarily or unreasonably. Galliford v. State,
101 S.W.3d 600, 604 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Appellate
9
courts will affirm the trial court’s ruling if it lies within the zone of reasonable
disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).
“Hearsay” is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. Tex. R. Evid. 801(d). Appellant’s own statements, however, do
not qualify as hearsay. Statements by a party are admissible as admissions by a
party-opponent even if they are not against the party’s interest when made. Tex.
R. Evid. 801(e)(2)(A); see Hughes v. State, 4 S.W.3d 1, 6 (Tex. Crim. App.
1999); Lewis v. State, 815 S.W.2d 560, 568 (Tex. Crim. App. 1991) (holding
statement admissible as nonhearsay when offered against party who made
statement), cert. denied, 503 U.S. 920 (1992); Lozano v. State, 2007 WL
4216349, at *8 (Tex. App.—Fort Worth Nov. 29, 2007, no pet.) (mem. op., not
designated for publication) (holding defendant’s statements in text messages
properly admitted as party admissions). As for Gorostieta’s and Gonzalez’s
statements, they are not hearsay because they were not admitted for the truth of
the matters asserted but to place Appellant’s admissible responses into context
for the jury. See Tex. R. Evid. 801(d)(2); see also United States v. Henderson,
626 F.3d 326, 337 (6th Cir. 2010) (holding statements made by others during
defendant’s recorded jail calls not admitted for truth but to put defendant’s
statements into context).
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
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the witnesses against him.” U.S. Const. Amend. VI. The prohibition against
evidence being admitted against a defendant in violation of the Confrontation
Clause applies to “testimonial evidence.” Crawford v. Washington, 541 U.S. 36,
68, 124 S. Ct. 1354, 1374 (2004). Whether a statement is testimonial under the
Confrontation Clause is a question of law reviewed de novo. De La Paz v. State,
273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (“Whether a statement is
testimonial is a question of law.”); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim.
App. 2006) (“Although we defer to a trial court’s determinations of historical facts
and credibility, we review a constitutional legal ruling, i.e. whether a statement is
testimonial or non-testimonial, de novo.”). Appellant’s own nonhearsay
statements are not within the class of evidence prohibited by the Confrontation
Clause. See Cantu v. State, 339 S.W.3d 688, 691 (Tex. App.—Fort Worth 2011,
no pet.); Davis v. State, 268 S.W.3d 683, 708–09 (Tex. App.—Fort Worth 2008,
pet. ref’d). Because Gorostieta’s and Gonzalez’s statements were not admitted
for the truth of the matters asserted, they were not prohibited by the
Confrontation Clause either. See Crawford, 541 U.S. 36, 59 n.9, 124 S. Ct. 1369
n.9. Furthermore, as statements between Appellant, the mother of his children,
and a friend, they were not testimonial and, therefore, not subject to the
Confrontation Clause. See Woods v. State, 152 S.W.3d 105, 114 (Tex. Crim.
App. 2004), cert. denied, 544 U.S. 1050 (2005); Hernandez v. State, 2012 WL
3194310, at *6 (Tex. App.—Dallas Aug. 8, 2012, pet. ref’d) (not designated for
publication).
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We hold that the complained-of testimony was neither hearsay nor a
violation of the Confrontation Clause and overrule Appellant’s second issue.
Denial of Requested Jury Instructions on Lesser-Included Offenses
In Appellant’s third issue, he asserts the trial court erred by refusing his
requested jury instructions on the lesser-included offenses of (1) deadly conduct
by knowing discharge of a firearm under section 22.05(b) of the penal code, (2)
aggravated assault causing serious bodily injury under section 22.02(a)(1) of the
penal code, (3) criminally negligent homicide under section 19.05 of the penal
code, and (4) manslaughter by recklessly causing death under section 19.04 of
the penal code. Tex. Penal Code Ann. §§ 19.04, 19.05, 22.02(a)(1), 22.05(b)
(West 2011). Appellant also complains about the trial court’s failure to submit his
accidental-gun-discharge instruction. Appellant limits his third issue to the
murder conviction.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). Second, some evidence must exist in the record that would permit a jury
to rationally find that if the appellant is guilty, he is guilty only of the lesser
offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.
12
Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. We review the evidence in
the context of the entire record. Moore, 969 S.W.2d at 8. There must be some
evidence from which a rational jury could acquit the appellant of the greater
offense while convicting him of the lesser-included offense. Id. Courts may not
consider whether the evidence is credible, controverted, or in conflict with other
evidence. Id. Anything more than a scintilla of evidence may be sufficient to
entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
The State does not dispute that Appellant meets the first element on all
four lesser-included offenses. See Barrios v. State, 389 S.W.3d 382, 399 (Tex.
App.—Texarkana 2012, pet. ref’d) (holding deadly conduct is a lesser-included
offense of murder); Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App.
2000) (holding aggravated assault, criminally negligent homicide, and
manslaughter are lesser-included offenses of murder). The dispositive question
is whether the record contains some evidence from which a jury could have
rationally acquitted Appellant of murder while convicting him only of one of the
lesser-included offenses. See Rousseau, 855 S.W.2d at 672–73.
Appellant argues that when the same evidence is subject to multiple
interpretations, the jury should be instructed on all those inferences. See
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). According to
Appellant, Rodriguez testified that he pointed the gun at Bustos, Bustos charged
and tackled him, and “[t]hey were fighting a little, and the gun started going off.”
Appellant emphasizes that Rodriguez did not say who pulled the trigger and
13
speculated in his argument that it might have gone off accidentally or even been
fired by Bustos. Appellant concludes that these facts supported, at the very
least, the manslaughter, criminally negligent homicide, and accidental-gun-
discharge instructions. Appellant further argues that because of the reckless
nature of his pointing the gun at others in a hostile fashion, the jury should have
been instructed on the lesser-included offenses of deadly conduct and
aggravated assault.
The State alleged that Appellant intentionally or knowingly caused the
death of Bustos by shooting him with a firearm and, in a second paragraph, that
Appellant intentionally, with the intent to cause serious bodily injury to Bustos,
committed an act clearly dangerous to human life, namely, shooting Bustos with
a firearm, which caused Bustos’s death. The thrust of Appellant’s argument is
that because of the struggle with Bustos, it was possible Appellant acted with a
culpable mental state less than that alleged in the indictment, which would have
entitled him to one or all the lesser-included offenses. Tex. Penal Code Ann.
§ 6.02 (West 2011). In the case of the accidental-gun-discharge instruction, if
the jury found the gun discharged accidentally during Appellant and Bustos’s
struggle, the jury was to find Appellant not guilty. See id. § 6.01 (West 2011).
Alternatively, Appellant argues it was possible Bustos procured the gun during
the struggle and shot himself three times, which would again have entitled
Appellant to the lesser-included offenses of deadly conduct and aggravated
14
assault based upon Appellant’s conduct before the struggle. The accidental-gun-
discharge instruction was not drafted to encompass this latter scenario.
Appellant’s arguments are based on limiting our review to specific pieces
of evidence. But we are required to review the entire record. Moore, 969 S.W.2d
at 8. Courts 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).
There was evidence that Appellant initially pulled the gun on Bustos and
Rodriguez. There was no evidence that either Bustos or Rodriguez threatened
Appellant in any manner before he drew his gun on them.
Appellant pointed the gun at Bustos’s face and at Rodriguez’s head. Any
shot to the face or head would, in all likelihood, be lethal.
There was no evidence Bustos ever wrestled the gun away from Appellant;
just the opposite, there was evidence Appellant pummeled Bustos’s head with an
object consistent with the butt of a gun handle and which, under the
circumstances, could have been nothing other than the butt of his pistol. This
shows Appellant had the pistol while he and Bustos struggled. Rodriguez
described Appellant as jumping up quickly and shooting her as she tried to flee;
she did not describe Appellant as struggling to get free from Bustos. Similarly,
she did not describe Appellant as trying to find the pistol or pry it away from
Bustos.
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Bustos was shot three times. Three shots belie reckless, negligent, or
accidental conduct. But the number of shots was not limited to these three.
Appellant shot Rodriguez as she tried to escape and tried to shoot her again
while she lay helpless on the ground. Appellant makes no attempt to argue the
attempts on Rodriguez’s life were the result of recklessness, negligence, or
accident.
There was evidence Appellant stopped shooting Bustos only when
Rodriguez attempted to flee. Appellant successfully shot Rodriguez once and
would have continued to shoot her but for a lack of ammunition or an unidentified
gun malfunction. This conduct shows an attempt to leave no witnesses.
The evidence showed Appellant was concerned about Bustos’s having
sexual relations with Gonzalez, which Bustos confirmed, and about Bustos’s
being a snitch, which Bustos denied. Bustos’s responses did not prompt
Appellant to give Bustos a stern warning and then leave. Rather, Bustos’s
responses prompted Appellant to instruct Cucuta to strike Bustos with a liquor
bottle and, thereafter, to search the bedroom for cash and an assault rifle. Under
these facts, no rational juror could have rationally found that Appellant intended
to let Bustos live. See Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App.
1985) (“Just because part of the conduct may be ‘involuntary’ does not relieve a
defendant of responsibility and culpability for the entire action.”); Turner v. State,
413 S.W.3d 442, 456 (Tex. App.—Fort Worth 2012, no pet.) (holding in murder
trial where defendant testified that he flinched and gun went off, he was not
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entitled to charge on lesser-included offense of negligent homicide). Appellant
tries to leverage Bustos’s attempt to save his and Rodriguez’s lives into some
sort of ambiguity regarding his own culpable mental state or, for that matter,
whether he had a culpable mental state at all. Tex. Penal Code Ann. §§ 6.01–
.02. However, Bustos’s attempt to attack Appellant while Cucuta was in the
bedroom did not alter Appellant’s intent or, in Bustos’s case, the result. See
generally Westley v. State, 754 S.W.2d 224, 230 (Tex. Crim. App. 1988) (holding
defendant cannot commit a crime and then use his victim’s response to claim
self-defense), cert. denied, 492 U.S. 911 (1989).
In Saunders, the defendant was seen squeezing the back of an infant’s
head, and the infant later died. Saunders v. State, 840 S.W.2d 390, 390 (Tex.
Crim. App. 1992). The court held that because squeezing the back of an infant’s
head was ambiguous for purposes of establishing the defendant’s intent, the
defendant was entitled to a charge on the lesser-included offense of criminal
negligence. Id. at 392. There is no comparable ambiguity about pointing a gun
at Bustos’s face and Rodriguez’s head, about shooting Bustos three times when
he tried to save himself and Rodriguez, or about shooting Rodriguez once as she
was trying to get away and attempting to shoot her again while she lay helplessly
on the floor. See Cavazos, 382 S.W.3d at 385 (“Pulling out a gun, pointing it 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.”);
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Salinas, 163 S.W.3d at 742 (“Dragging Morales from the car and shooting him in
the head with a shotgun at close range were not merely acts clearly dangerous to
human life that resulted in death. . . . [T]he evidence shows . . . the intent to kill. .
. . Appellant was not entitled to a charge on the lesser-included offense . . . .”).
Appellant did not testify. There is no affirmative testimony that Bustos shot
himself or that Appellant recklessly, negligently, or accidentally shot Bustos three
times while wrestling with him; consequently, Appellant has to rely on any
ambiguity in the evidence, but there is no ambiguity. There is only speculation
inconsistent with the evidence. See Cavazos, 382 S.W.3d at 385 (meeting
second prong of test for lesser-included offense instruction “requires more than
mere speculation—it requires affirmative evidence that both raises the lesser-
included offense and rebuts or negates an element of the greater offense”). We
hold that there is no evidence from which a jury could have rationally acquitted
Appellant of murder while convicting him only of one of the lesser-included
offenses. See Rousseau, 855 S.W.2d at 672–73.
Even if, despite all of the other evidence that Appellant voluntarily shot
Bustos with the intent to kill him, this sole piece of Rodriguez’s testimony could
be construed as raising the possibility that the gun accidentally discharged three
times, or that Bustos was responsible for its discharging during the struggle,
Appellant would nevertheless not be entitled to the deadly conduct, aggravated
assault, criminally negligent homicide, and manslaughter instructions he sought.
Deadly conduct and aggravated assault would require a knowing or reckless, not
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an accidental or involuntary, discharge of the gun by Appellant. Tex. Penal Code
Ann. § 22.01(a)(1) (defining assault as intentionally, knowingly, or recklessly
causing bodily injury), § 22.02(a)(1) (“A person commits an offense if the person
commits assault . . . .”), § 22.05(b) (“A person commits an offense if he knowingly
discharges a firearm . . . .”). And accidental discharge alone does not raise the
issue of criminally negligent homicide; there must be some other evidence
showing that the actor was unaware of the risk created by his conduct. Thomas,
699 S.W.2d at 850; Turner, 413 S.W.3d at 456. After reviewing the entire record,
we find no such evidence here. Finally, because manslaughter is a result-of-
conduct offense, meaning that the reckless conduct itself must have caused the
death, the fact that Appellant may have created the circumstances leading to
Bustos’s death by taking the gun to his house, pointing it at Bustos, threatening
him and Rodriguez with it, and holding onto it while struggling with Bustos after
being rushed by him fails to raise the issue. See Gilbert v. State, 196 S.W.3d
163, 165–66 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
At trial, Appellant relied on Garcia v. State, 605 S.W.2d 565, 566 (Tex.
Crim. App. [Panel Op.] 1980), to support his request for an accidental-gun-
discharge instruction. Garcia was a panel decision in which the three judges
initially held the trial court reversibly erred by not submitting a special instruction
on accident. Id. However, in an opinion on the denial of the State’s motion for
leave to file a motion for rehearing, one judge who was not a member of the
original panel dissented. Id. (Douglas, J., dissenting). The dissent argued that
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although accident was a statutorily-recognized defense under article 39 of the
1925 penal code, it was no longer a statutorily-recognized defense under the
then-current penal code; therefore, the trial court did not err by denying the
requested instruction on accident. Id. at 567. Garcia has never been expressly
overruled, but in 1982, without ever citing Garcia, the Texas Court of Criminal
Appeals, acting en banc and unanimously, adopted the dissent’s position.
Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982) (op. on reh’g). In
2003, in Rogers v. State, a unanimous en banc court of criminal appeals again
held that under the current penal code, there is no defense of accident. 105
S.W.3d 630, 637 (Tex. Crim. App. 2003). The court noted, citing former article
39, that the defense of accident existed under the previous penal code before the
enactment of the present Texas Penal Code in 1973. Id. at 636 n.11.
Appellant argues that the touchstone of the accidental gun discharge
instruction is voluntariness, which is in the current penal code and which, he
asserts, makes his requested instruction proper. Appellant stresses that his
proposed instruction addressed voluntary conduct. That is true, but it also tied
an accidental discharge of the gun back into the voluntariness of that conduct. 2
2
Appellant’s proposed instruction provided:
You are instructed that a person commits an offense only if he
voluntarily engages in conduct, including an act, omission, or
possession. Conduct is not rendered involuntary merely because
the person did not intend the results of his conduct.
20
The court of criminal appeals rejected this position in Rogers: “[F]or purposes [of
the Texas Penal Code], an ‘accident’ is not the same as, and should not be
treated as the equivalent of, the absence of any voluntary act. . . . We again
reject this view and hold that the word ‘voluntary’ does not refer to the same
defensive theory as the word ‘accident’ . . . .” Id. at 639. Relying on Rogers and
Williams, we hold the trial court did not err by denying Appellant’s accidental gun
discharge instruction.
We hold the trial court did not err in denying Appellant’s instructions and
overrule Appellant’s third issue.
Thus, if you believe from the evidence beyond a reasonable
doubt that on the occasion in question the defendant, JOSE
ACOSTA, did cause the death of EDUARDO BUSTOS by shooting
him with a gun, as alleged in the indictment, but you further believe
from the evidence, or you have a reasonable doubt thereof, that the
shooting was a result of an accidental discharge of the gun while
EDUARDO BUSTOS and the defendant were struggling or scuffling
for the possession of the gun and was not the voluntary act or
conduct of the defendant, you will acquit the defendant and say by
your verdict “Not Guilty.”
This instruction is comparable to the one successfully used in Garcia:
You are instructed that no act done by accident is an offense against
the law. Therefore, if you believe from the evidence beyond a
reasonable doubt that on the occasion in question the defendant . . .
killed the deceased, . . . but you further believe from the evidence or
have a reasonable doubt that the shooting was by the accidental
discharge of a pistol in the hands of the defendant, or was the result
of an accident while the deceased and the defendant were
struggling or scuffling for possession of a pistol, then the defendant
would not be guilty and should be acquitted. . . .
605 S.W.2d at 567.
21
Conclusion
Having overruled Appellant’s three issues, we affirm the trial court’s
judgments.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MEIER, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 8, 2015
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