No. 14-04-00144-CR
Memorandum Opinion filed August 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 934,224. Affirmed.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN. (GUZMAN, J., CONCURS IN RESULT ONLY.)
CHARLES W. SEYMORE, Justice.
Appellant, Roberto Antonio Fernandez, was charged with the offense of capital murder. A jury convicted appellant of the lesser included offense of felony murder and assessed punishment at life imprisonment and a $10,000 fine. In two issues, appellant contends the trial court erred by (1) admitting a prejudicial videotape in its entirety, and (2) failing to charge the jury on the lesser included offense of manslaughter. We affirm.
I. BACKGROUND
On December 21, 2002, appellant and Omar Ramirez robbed a convenience store at gunpoint. The store was owned and operated by Vien Ma. During the robbery, Ma confronted appellant. Appellant struck Ma with a pistol and shot him in the abdomen, causing his death. Appellant and Ramirez fled the store but were shortly apprehended by police. The store's surveillance videotape depicting the entire robbery was admitted into evidence at trial. II. ADMISSION OF VIDEOTAPE
In his first issue, appellant contends that the trial court violated Texas Rules of Evidence 401 and 403 by admitting into evidence the portion of the surveillance videotape that depicts Ma's wife kneeling and crying over Ma's body after appellant had fled the store. The State responds that appellant failed to preserve this complaint for review because two witnesses testified, without objection, regarding actions depicted on the videotape after appellant fled the store. At trial, June Marks testified that when she entered the convenience store, she observed Ma lying on the ground. She testified that Ma's wife was holding him, cradling his head, and crying. Teresa Nance testified that when she entered the convenience store, Ma was still awake, his eyes were moving, and he was groaning. Nance testified that Ma's wife was hysterical, was trying to keep Ma awake, and was afraid that he was dying. The rules applicable to the admission of ordinary photographs are applicable to the admission of a videotape. Tex. R. Evid. 1001(b). The general rule is that an objection to a photograph is waived if the same information contained in the photograph is conveyed to the jury in some other form. Hughes v. State, 878 S.W.2d 142, 155 (Tex.Crim.App. 1992). Applying this rule, we hold that appellant waived his relevancy objection under Rule 401 because the same information depicted on the videotape was otherwise communicated to the jury. The Texas Court of Criminal Appeals has held that unobjected-to testimony regarding the same subject matter as that depicted in a photograph does not result in waiver of an objection to the inflammatory nature of the photograph unless the testimony conveys the same aspects of the photograph which would be likely to inflame the minds of the jurors. See James v. State, 772 S.W.2d 84, 98 (Tex.Crim.App. 1989), vacated on other grounds by James v. Texas, 493 U.S. 885 (1989) ("The waiver rule that the State would have us invoke does not apply to an objection to the gruesomeness of photographs unless the testimony itself is gruesome and conveys the aspects of the photographs which would be likely to inflame the minds of jurors."). Here, the aspect of the videotape that would be likely to inflame the minds of the jurors was the emotional state displayed by Ma's wife following the shooting. The testimony of Nance and Marks verbally conveyed the same imagery as the videotape. Accordingly, we hold that appellant's failure to object to this testimony waived his Rule 403 challenge to the complained-of portion of the videotape. We overrule appellant's first issue. III. INSTRUCTION ON LESSER INCLUDED OFFENSE
In his second issue, appellant contends that the trial court erred by failing to submit a jury instruction on the lesser included offense of manslaughter. The jury charge in this case included instructions on the lesser included offenses of murder, felony murder, and aggravated robbery. However, the trial court denied appellant's request to include an instruction on manslaughter. A two-pronged test applies to determine whether a defendant is entitled to a lesser included offense instruction: (1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser included offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993). To determine whether the record supports a charge on the lesser included offense, we must review all of the evidence presented at trial. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). The credibility of the evidence and whether it conflicts with other evidence or is controverted is not to be considered in determining whether an instruction on a lesser included offense was required. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994). Manslaughter is a lesser included offense of capital murder. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002). Therefore, the first prong of the test is satisfied. We next determine whether the record contains evidence that appellant is guilty only of manslaughter. A person commits manslaughter if he recklessly causes the death of an individual. TEX. PEN. CODE ANN. 19.04 (Vernon 2003). A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. TEX. PEN. CODE ANN. 6.03(c) (Vernon 2003). Appellant contends that some evidence in the record shows the shooting was reckless, rather than intentional, and therefore, appellant was entitled to an instruction on manslaughter. However, even if appellant's actions might be classified as reckless, the fact that the homicide was committed in the course of a robbery precludes a rational jury from finding appellant guilty only of manslaughter. Gadsden v. State, 915 S.W.2d 620, 623 (Tex.App.-El Paso 1996, no pet.). A homicide committed in the course of robbery does not comprise the offense of manslaughter; rather it constitutes at the very least, the offense of felony murder as defined by Texas Penal Code Section 19.02(b)(3). Id. A person commits the offense of felony murder if in the course and furtherance of committing a felony, the person commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 2003). The evidence shows that appellant committed the underlying robbery and that in the course and furtherance of the robbery he committed an act clearly dangerous to human life. Therefore, whether appellant recklessly, rather than intentionally, caused Ma's death at most raises the issue of felony murder. See Ross v. State, 861 S.W.2d 870, 876 (Tex.Crim.App. 1993) (op. on reh'g); Gadsden, 915 S.W.2d at 623. Under the facts of this case, a jury could not rationally find appellant guilty only of manslaughter. Consequently, the trial court did not err in refusing to instruct the jury on the lesser included offense of manslaughter. Accordingly, we overrule appellant's second issue. The judgment of the trial court is affirmed.