No. 05-09-01058-CR
Opinion issued May 25, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 86th Judicial District Court Kaufman County, Texas, Trial Court Cause No. 27132-86.
Before Justices MORRIS, FRANCIS, and MURPHY.
Opinion By Justice MURPHY.
A jury found Lewis Ray Hart guilty of the murder of Larry Wayne King and assessed punishment at life in prison. In his first point of error, appellant challenges the trial court's admission of his initial statement to the police. In three additional points, he contends the trial court erred in denying his requests (1) to present evidence of the deceased's propensity for violence; (2) for a defense of third party instruction, and (3) for a jury instruction on the lesser included offense of criminally negligent homicide. We affirm the trial court's judgment.
BACKGROUND
Appellant's mother Mary and several of her siblings lived next door to each other on Griffin Lane, a gravel road located just north of Crandall, Texas. Larry King was appellant's uncle and also lived on Griffin Lane, a quarter of a mile down from the other family members. After finishing work on August 18, 2007, appellant went to his mother's house to drink beer and watch a football game. Shortly after he arrived, appellant saw his younger brother Rodney walking with a limp and holding his arm; appellant also saw a gash on Rodney's elbow. Appellant heard from various people that Uncle Larry caused Rodney's injuries by throwing him from a truck and by pouring gasoline on Rodney's head and setting him on fire. Appellant's aunt, Mae Hollis King, testified appellant was mad and "told [her] he [was] going to kill Larry." Mae's boyfriend, Bobby Chambers, also testified appellant was angry when "looking over" Rodney for injuries, was "in a rage" when he left, and said he was going to kill Uncle Larry. Appellant eventually left his mother's house and headed home to Dallas. On the way, he stopped by his sister Patricia's house. Patricia testified appellant was angry when he came by and told her "he was tired of folks effing [sic] with his sisters and brothers." Patricia testified appellant also told her he was going to kill their uncle. Patricia told appellant to go home. Later that evening, appellant drove back to Crandall and saw Uncle Larry parked on Griffin Lane where his truck had broken down. Appellant drove around once and cut back to approach his uncle from the front. Appellant testified he did that because he "didn't want [Uncle Larry] to see [him] coming." Appellant then loaded his rifle and pulled up to confront his uncle about Rodney. Appellant testified his uncle was prone to violence and explained "[i]f you run up on Larry, you're gonna have to have something." Uncle Larry denied doing anything to Rodney and started walking toward appellant. After warning his uncle multiple times not to "walk up" on him, appellant grabbed his gun and fired. Uncle Larry fell back and bounced off the front of the truck. He then fell to the ground. Appellant collected the ejected casings from a ditch, drove back to Dallas, and went to his brother-in-law's house to drink beer. Appellant sold his gun the next day, to "get it out of [his] possession." The next morning, investigating officers went to appellant's house to talk with him about the shooting. Officer Joseph Cagle with the Kaufman County Sheriff's Department testified appellant was a suspect based on interviews with various witnesses who informed Cagle that appellant was mad at Uncle Larry and had said he was going to kill him. Appellant agreed to talk to the investigators and accompany them to the sheriff's office to test his hands for gunshot residue. Appellant also provided a statement, which was admitted into evidence as State's Exhibit 16. He denied any involvement in the shooting. Cagle testified the officers did not have enough information to arrest appellant at that time. Over the next couple of months, officers also investigated other suspects. In November 2007, Cagle received a telephone call from appellant's aunt, Odessa Moore. Moore told Cagle that appellant "was bragging" to her nephew, Thomas Penagraph, about killing Uncle Larry. Cagle contacted Penagraph and learned he had made a tape recording of a conversation with appellant in which appellant talked about killing his uncle. Penagraph testified it was his idea to record the conversation because he "didn't think it was right." Penagraph's recording was admitted into evidence without objection and played for the jury; a written transcript of the tape also was shown to the jury for demonstrative purposes only. On the recording, appellant talked about seeing Rodney that day and telling Rodney not to worry, his "big brother take care of that." Appellant also described loading his rifle when he saw Uncle Larry on Griffin Lane and how the rifle went "Boom" when he "let go." Although appellant told Penagraph he "wasn't tryin' to kill [Uncle Larry]," appellant recounted how he "had done this shit so smooth" because he was back home in less than thirty minutes. Based on the information from the tape recording and statements obtained earlier in the investigation, Cagle and two other officers arrested appellant. After being interviewed by Cagle, appellant provided a second handwritten statement, in which he wrote that he killed Uncle Larry because his uncle threw Rodney out of his truck, threw gas on his head, and set him on fire. Appellant also told Cagle he sold the rifle the next day. Appellant testified at trial that right before he pulled the trigger, he felt his life was in danger. Appellant said he thought Uncle Larry was holding a hammer or pipe in his hand. He "figured" if Uncle Larry "would have got in hand['s] reach of [him]," he knew what his uncle would have done, and "that's when [appellant] took action." Appellant claimed he meant only to wound Uncle Larry, not to kill him. Cagle testified that no weapon or tool was found around the body. Appellant also testified that when he saw his uncle on Griffin Lane that night, he was "thinking about how [Uncle Larry] done [Rodney]" and admitted he had gone back to Griffin Lane that night to look for his uncle. Appellant testified that when he shot Uncle Larry, he was protecting Rodney and keeping his uncle "from doing anymore damage to [Rodney]." He explained, "nobody [was ] gonna . . . do nothing about it." Appellant admitted the incidents had not happened the day of the shooting and the injury on Rodney's head had a scab. According to various family members, the incident described as Uncle Larry throwing Rodney from the truck occurred between one and three weeks before appellant shot his uncle. Odessa, appellant's aunt, testified that some time before the shooting, she had heard Uncle Larry burned Rodney. Odessa had checked Rodney, but she found only a little burn on his arm that did not require medical attention. She found no other injuries. Appellant's sister Patricia testified that about a week before appellant shot their uncle, she saw a "big spot" on Rodney's head that looked like a burn. Aunt Mae testified that on the day Uncle Larry died, Rodney was not injured. During the charge conference, appellant requested jury instructions on the defense of a third person and the lesser included offense of criminally negligent homicide. See Tex. Penal Code Ann. § 9.33(2) (West 2011); id. § 19.05(a) (West 2011). The trial court denied both requests and instructed the jury on murder, as charged in the indictment, and manslaughter, as included in the indictment. The charge included a self-defense instruction. After hearing testimony from numerous witnesses, including Cagle, multiple family members, and appellant, as well as the recording made by Penagraph and the audio recording of appellant's interview with Cagle, the jury convicted appellant of murder. And after finding appellant did not cause the death of Uncle Larry under the immediate influence of sudden passion arising from an adequate cause, the jury assessed punishment at life in prison. DISCUSSION Evidentiary Rulings
In his first and second points of error, appellant challenges the trial court's evidentiary rulings. He specifically contends the trial court erred in admitting State's Exhibit 16, appellant's initial statement to the police (Point of Error No. 1), and denying his request to present testimony from Uncle Larry's former wife about his abuse (Point of Error No. 2). We review a trial court's decision to admit or exclude evidence for an abuse of discretion. See Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We will reverse the trial court's evidentiary ruling only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Hayden, 296 S.W.3d at 553; De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009). State's Exhibit 16
Appellant complains on appeal that the trial court erred in admitting State's Exhibit 16 "without statutory warnings and without the proper foundation being laid for its admission." He also asserts the trial court erred because the statement constitutes hearsay and such statements are "inadmissible when it is not against the declarant's penal interest as is State's Exhibit 16." At trial, a ppellant objected to the admission of State's Exhibit 16, arguing the statement (1) did not meet the requirements of article 38.22 of the Texas Code of Criminal Procedure and (2) constituted hearsay. The trial court overruled appellant's objections. Appellant later reurged his objections and also argued the trial court's ruling "forced" him to change his defensive strategy; he claimed admission of the exhibit made it necessary for him to testify to explain the statement. Appellant also moved for a mistrial. The trial court overruled his objections and denied the motion for mistrial. State's Exhibit 16 was the statement appellant gave to the police when they came to see him at his house the day after Uncle Larry was killed. In his statement, appellant claimed he left his mother's house in Crandall at approximately eight o'clock in the evening and went to his home in Dallas. He said that after he got home, he went to his brother-in-law's house where he stayed and drank beer until about eleven o'clock that night. When appellant's wife got home from work, she came over and asked appellant if he was ready to go home. Appellant claimed he and his wife got home about 11:05 p.m. On cross-examination at trial, appellant admitted that this statement was an "absolute lie." Foundation and Hearsay Objection s
Appellant argues on appeal that State's Exhibit 16 was admitted without proper foundation and constituted inadmissible hearsay. To the extent appellant complains about lack of "proper foundation," we conclude this issue is not preserved for our review. It is well settled that an objection at trial that does not comport with the complaint raised on appeal preserves nothing for appellant review. See Tex. R. App. P. 33.1(a)(1); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). Appellant's only objections to the admission of the exhibit were that it did not meet the requirements of article 38.22 (or 38.23) and was hearsay. Appellant never objected based on foundation and therefore has failed to preserve error on that ground. Appellant argues as to his hearsay objection that his initial statement to the police was a "self-serving declaration," which is not admissible as proof of the facts asserted on appellant's behalf. Self-serving declarations made by a defendant generally constitute inadmissible hearsay when offered by the defendant. See Allridge v. State, 762 S.W.2d 146, 152 (Tex. Crim. App. 1988); Sneed v. State, 955 S.W.2d 451, 454 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd). But a criminal defendant's own statements are not hearsay when, as here, they are offered against him. See Tex. R. Evid. 801(e)(2); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999). Accordingly, the trial court did not err in admitting State's Exhibit 16 over appellant's hearsay objection. Objection Based on Articles 38.22 and 38.23
Appellant invoked the requirements of article 38.22 of the Texas Code of Criminal Procedure as his primary objection to State's Exhibit 16. See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005). He argues he gave a statement while in custody without receiving "any warnings" under article 38.22. He also asserts there is no evidence he waived his rights under that article. Article 38.22 establishes requirements for admitting an accused's oral and written statements when they result from custodial interrogation; non-custodial statements are exempted. See id. art. 38.22, §§ 2, 5. "Custodial interrogation" is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966); see also Gardner v. State, 306 S.W.3d 274, 293-94 (Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103 (2010). A person is in "custody" for purposes of article 38.22 if, under the circumstances, "a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)); see also Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (construction of "custody" for purposes of article 38.22 consistent with meaning of "custody" for purposes of Miranda). The reasonable person standard implies an innocent person. Dowthitt, 931 S.W.2d at 254. At least four general situations may constitute custody for purposes of article 38.22: (1) the suspect is physically deprived of his freedom of action in any significant way; (2) a law enforcement officer tells the suspect he is not free to leave; (3) law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Gardner, 306 S.W.3d at 294; Dowthitt, 931 S.W.2d at 255. The custody determination depends entirely upon the objective circumstances of the interrogation, not on the subjective views of the interrogating officer or the person being questioned. See Stansbury, 511 U.S. at 325; Dowthitt, 931 S.W.2d at 255. A law enforcement official's subjective intent to arrest is irrelevant unless the official somehow communicates or otherwise manifests his intent to the suspect. Dowthitt, 931 S.W.2d at 254. In our analysis, we determine whether a person is in custody on an ad hoc basis considering all the objective circumstances. Herrera, 241 S.W.3d at 532; Dowthitt, 931 S.W.2d at 255. We consider whether, given those circumstances, a reasonable person would have felt he was not at liberty to terminate the interrogation and leave. Herrera, 241 S.W.3d at 532. The record as a whole must "clearly establish" the defendant's statement was the product of custodial interrogation. Id. at 526 (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). At trial, the defendant bears the burden to prove a statement was the product of custodial interrogation. See Gardner, 306 S.W.3d at 294; Herrera, 241 S.W.3d at 526. Although the substance of appellant's objection and crux of his argument relate to article 38.22, he also referenced article 38.23 of the code of criminal procedure in his objection. See Tex. Code Crim. Proc. Ann. art. 38.23. Article 38.23 prohibits the admission of evidence obtained by an officer or other person in violation of either the state or federal constitution or any laws. Id. art. 38.23(a). The defendant bears the burden of raising an exclusionary issue by producing evidence of the statutory violation. See Pham v. State, 175 S.W.3d 767, 772 (Tex. Crim. App. 2005). The evidence and record here do not support appellant's article 38.22 (or 38.23) objection. Cagle testified he went to appellant's home in Dallas around eight o'clock in the morning. Cagle explained he and two other investigators found appellant at his residence, talked with him, and took his statement. Cagle confirmed appellant was not under arrest at the time and that appellant agreed to speak with them about their investigation. Cagle stated: "we didn't make him do anything. We asked if he would give us a statement and he did, and we sat in the car while he gave the statement." Appellant gave his statement orally while still at his house, and Cagle hand-wrote the statement. Appellant also agreed to go with the officers to the sheriff's office to have his hands tested for gunshot residue. He rode with the officers to the sheriff's office and was able to leave after the test was completed. Appellant testified he voluntarily spoke with Cagle and the other officers for some time before he gave his statement. While appellant acknowledges Cagle's testimony that appellant was not under arrest at the time appellant gave his initial statement and that he agreed to give the statement, he asserts he implicitly was the focus of the investigation because the police "wanted to test his hands for gunshot residue." Cagle testified appellant was a suspect based on information received from the initial witness interviews. There is nothing in the record, however, to suggest Cagle told appellant he was a suspect or that he was the "focus of their investigation." Regardless of whether appellant was a suspect, the officers did not arrest appellant when they went to his house the morning after the shooting. Further, appellant said nothing to Cagle or the other officers that furnished probable cause to arrest him; Cagle confirmed that after talking to appellant, they did not have enough information to arrest him. Nothing in the circumstances surrounding appellant's initial statement to the police objectively demonstrates that a reasonable, innocent person would have considered his freedom of movement restrained to the degree associated with a formal arrest. See Dowthitt, 931 S.W.2d at 254. Therefore, we conclude appellant's initial statement did not result from custodial interrogation and the requirements of article 38.22 do not apply. Appellant has offered no other grounds for exclusion of his statement under article 38.23 and therefore has failed to meet his burden under that article. See Pham, 175 S.W.3d at 772. Accordingly, the trial court did not err by admitting State's Exhibit 16. We overrule appellant's first point of error. Uncle Larry's Propensity for Violence
In his second point of error, appellant contends the trial court erred in denying his request to present testimony from Alice Faye Simpson, Uncle Larry's former wife, about Uncle Larry's propensity for violence. Appellant maintains the testimony was relevant to his self-defense claim and complains the trial court "never engaged in [a Rule 403] balancing test." Appellant asserts the excluded testimony would have shown Uncle Larry "was capable of causing death or at a minimum serious bodily injury." The State objected to the jury hearing testimony from Simpson because any incidents between Uncle Larry and Simpson happened more than ten years before the August 2007 shooting and the incidents did not explain Uncle Larry's conduct the night he was killed. The trial court sustained the objection. Appellant's counsel made an offer of proof of Simpson's testimony. Simpson testified she was married to Uncle Larry from 1983 until 1997 and that he had been physically and verbally abusive throughout their marriage. She detailed a specific incident in March of 1997 when Uncle Larry beat her because of money he wanted to buy drugs. He broke five of her ribs, her pelvic bone, and knocked her unconscious. Her face also swelled beyond recognition. Simpson testified she knew what was going to happen when she saw Uncle Larry "coming up on her" that day. She asked him to stop, but he continued the abuse. Appellant contends Simpson's testimony was akin to his situation where he told Uncle Larry multiple times not to "walk up" on him. Appellant argues the exclusion of Simpson's testimony "allowed the State to allude to the fact that there was no similar aggression, no common plan or scheme," on the part of Uncle Larry. Appellant asserts the trial court's error was harmful because it affected his "constitutional right to call witnesses and offer evidence in his own behalf." We need not determine whether the trial court erred in excluding Simpson's testimony because we conclude any error was harmless. Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the defendant. See Tex. R. App. P. 44.2(b) (non-constitutional error "that does not affect substantial rights must be disregarded"); Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007). Substantial rights are not affected if the appellate court, after examining the record as a whole, has "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). When we assess the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error, and how it might be considered in connection with other evidence in the case. See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The exclusion of evidence offered by a criminal defendant will be constitutional error "only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002); see also Walters, 247 S.W.3d at 219. The court of criminal appeals has stated the exclusion of evidence may rise to the level of a constitutional violation if: (1) a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering otherwise relevant, reliable evidence vital to his defense; or (2) a trial court's clearly erroneous ruling results in the exclusion of admissible evidence that forms the vital core of a defendant's defensive theory and effectively prevents him from presenting a defense. Walters, 247 S.W.3d at 219; Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005). The first circumstance is not met. The trial court simply ruled Simpson's testimony was too remote in time from the shooting. As to the second circumstance, we conclude Simpson's proffered testimony did not form a "vital portion" of appellant's case and its exclusion did not prevent appellant from presenting the substance of his self-defense claim to the jury. See Potier, 68 S.W.3d at 666. Simpson's testimony was just one part of the evidence the defense intended to present to show Uncle Larry was prone to violence. As part of the offer of proof, appellant testified he had witnessed Uncle Larry getting into physical fights with others and provided fifteen examples of his uncle "jumping on" or starting a fight. The fights witnessed by appellant involved punching and kicking and included incidents where his uncle beat up guys "real bad." Appellant also described occasions when his uncle used weapons, such as a pocket knife and a chain from the back of his bumper, to beat someone over the head. Appellant testified Uncle Larry was drunk or "was smoking crack at the time." Appellant stated that because of all these different fights, he felt his life was in danger when Uncle Larry was walking toward him that night. The trial court ruled that testimony from all but two of the fifteen incidents appellant described would be permitted. Despite that ruling, appellant testified before the jury only about seeing Uncle Larry getting into fights "[m]ore than two or three times." Appellant generally testified Uncle Larry was prone to violence and appellant knew what his uncle would have done if he had gotten in reach of appellant. Appellant also testified he knew Uncle Larry would have used whatever he had in his hand that night. Appellant also presented testimony from Willie Lewis, one of his uncle's neighbors on Griffin Lane. Lewis testified Uncle Larry would "argue in a minute" and "would fight if he had to." Another witness, Von Carl Thomas, a former Kaufman County police officer, testified he came across Uncle Larry during his years working in law enforcement and that he was "prone to fight." Nothing in the record shows appellant was precluded from presenting his defense. To the contrary, appellant admits he "was not prohibited from offering [to the jury] the bulk of the evidence" related to incidents of violence involving Uncle Larry. And after appellant's testimony before the jury, the trial court reminded appellant that he could "go into" all but two of the incidents appellant described in his testimony outside the jury's presence. Yet the defense never presented the specific incidents of fighting and aggression to the jury. While Simpson's excluded testimony could have relevance to appellant's self-defense claim, the testimony the trial court ruled was admissible also accomplished the same purpose. The exclusion of Simpson's testimony was not constitutional error under Rule 44.2(a), and we conclude the trial court did not err in denying appellant's offer of proof. We overrule appellant's second point of error. Jury Charge
Appellant complains in his third and fourth points of error that the trial court erred in denying his request for jury instructions on a defense of third person (Point of Error No. 3) and on the lesser included offense of criminally negligent homicide (Point of Error No. 4). See Tex. Penal Code Ann. §§ 9.33(2), 19.05(a). When reviewing claims of jury-charge error, we first determine whether an error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and appellant objected to the error at trial, reversal is required if the error "is calculated to injure the rights of [the] defendant," which means there must be "some harm" to appellant from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). In the absence of an objection, we will not reverse for jury-charge error unless the record shows "egregious harm." See Ngo, 175 S.W.3d at 743-44. Defense of Third Person Instruction
Appellant first challenges the trial court's refusal of a defensive instruction that he used force to protect a third person, namely his younger brother Rodney. See Tex. Penal Code Ann. § 9.33(2) (providing person justified in using force if he "reasonably believes that his intervention is immediately necessary to protect the third person"). Appellant asserts he had just learned of the "assault on Rodney" and believed his use of force was necessary to stop the assaults on Rodney, who "had been an alleged victim of [Uncle Larry's] aggression." A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of what the trial court may think about the credibility of the defense. See Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). A trial court, however, may refuse an instruction on a defensive theory if the issue was not raised by the evidence. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007); Garza v. State, 829 S.W.2d 291, 294 (Tex. App.-Dallas 1992, pet. ref'd); see also Tex. Penal Code Ann. § 2.03(c) (West 2011) (defensive jury instruction not submitted to jury unless "evidence is admitted supporting the defense"). One requirement for the defense of a third person is that the defendant reasonably believe his action is immediately necessary to protect the third person. See Tex. Penal Code Ann. § 9.33(2); McDonald v. State, 597 S.W.2d 365, 367 (Tex. Crim. App. [Panel Op.] 1980); Nance v. State, 807 S.W.2d 855, 863 (Tex. App.-Corpus Christi 1991, pet. ref'd). If the evidence does not raise the issue of immediate danger to the third person, the trial court may refuse a defense of third person instruction. See McDonald, 597 S.W.2d at 367 (holding defense of third person instruction not available when evidence showed third person in another part of house from where victim killed); Morgan v. State, 545 S.W.2d 811, 814-15 (Tex. Crim. App. 1977) (holding trial court properly refused defense of third person instruction when defendant testified third person was out of danger). In this case, the record shows no evidence of immediate danger to Rodney at the time appellant shot Uncle Larry. Rodney was not present when appellant pulled up to Uncle Larry's truck on Griffin Lane. See McDonald, 597 S.W.2d at 367; Nance, 807 S.W.2d at 863. In addition, the evidence shows Rodney was out of danger at the time appellant shot Uncle Larry and that any prior instances where Rodney received injuries from Uncle Larry's "aggression" were too remote in time to meet the immediacy requirements of penal code section 9.33(2). See Cooper v. State, 910 S.W.2d 605, 606 (Tex. App.-Tyler 1995, no pet.) (threats made at earlier instances too remote to create an immediate danger). Multiple witnesses testified that any incident between Uncle Larry and Rodney happened between one and three weeks earlier. Appellant also admitted he knew the "assaults" had not happened the day he learned of them and did not believe Rodney needed medical attention that day. Nor did any family member testify that Rodney had any injury needing medical attention or that Rodney was hurt that day. The evidence presented at trial does not support a defense of third person instruction, and we conclude the trial court did not err in refusing appellant's request. See Morgan, 545 S.W.2d at 815. We overrule appellant's third point of error. Lesser Included Offense Instruction
Appellant also challenges the trial court's denial of his request for an instruction on the lesser included offense of criminally negligent homicide. See Tex. Penal Code Ann. § 19.05(a). Appellant asserts he was entitled to the instruction because the evidence shows he did not intend to kill Uncle Larry. Appellant claims his intention "was simply to defend himself" and he "believed Uncle Larry was capable of taking his life." Appellant also asserts that he had been drinking and was therefore unable to perceive the risk of death by his actions. The State agrees that criminally negligent homicide can be a lesser included offense of murder but contends there was no evidence to prove "appellant's mental state was less than knowing." A defendant is entitled to an instruction on a lesser included offense when (1) the lesser included offense is included within the proof necessary to establish the charged offense and (2) there is some evidence in the record that if the defendant is guilty, he is guilty only of the lesser included offense. See Young v. State. 283 S.W.3d 854, 875 (Tex. Crim. App. 2009) (per curiam), cert. denied, 130 S. Ct. 1015 (2009); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). Because the State agrees criminally negligent homicide is a lesser included offense of murder, our focus is whether some evidence in the record would permit the jury to find that if appellant is guilty, he is guilty only of criminally negligent homicide. See Hall, 225 S.W.3d at 536; Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). We must consider all evidence introduced at trial to make this determination. See Young, 283 S.W.3d at 875. "Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge." Bignall, 887 S.W.2d at 23. The evidence must establish the lesser included offense as a valid and rational alternative to the charged offense. Hall, 225 S.W.3d at 536. The essential difference between murder and criminally negligent homicide is the culpable mental state required to establish each offense. See Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985). A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02 (West 2011). In contrast, a person commits criminally negligent homicide by causing the death of another through criminal negligence. Id. § 19.05. A person acts with criminal negligence with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(d). The key to criminal negligence is the actor's failure to perceive the risk created by his conduct. See id.; Still v. State, 709 S.W.2d 658, 660 (Tex. Crim. App. 1986); Jackson v. State, 248 S.W.3d 369, 371 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). "Before a charge on criminally negligent homicide is required, the record must contain evidence showing an unawareness of the risk." Jackson, 248 S.W.3d at 371-72 (citing Mendieta v. State, 706 S.W.2d 651, 653 (Tex. Crim. App. 1986)). That the defendant did not intend the result does not automatically entitle him to a charge on criminal negligence. See Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Wong v. State, 745 S.W.2d 563, 565 (Tex. App.-Waco 1988, no pet.)); see also Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (appellant's statement he did not intend to hit victim not evidence he is guilty only of lesser included offense). Appellant's testimony that it was not his intention to kill Uncle Larry and he shot in defense does not constitute evidence that he is guilty only of the lesser offense, considering the substantial evidence of appellant's intent to kill Uncle Larry. Cardenas, 30 S.W.3d at 393; Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986); Navarro v. State, 863 S.W.2d 191, 205 (Tex. App.-Austin 1993, pet. ref'd). That he also claims he was drinking and unable to perceive the risk similarly does not, in light of the record, constitute evidence appellant was unable to perceive the risk created by his conduct. Voluntary intoxication is a not a defense. Tex. Penal Code Ann. § 8.04(a) (West 2011). The jury heard that appellant told several family members he was going to kill Uncle Larry because appellant was angry about what had happened to Rodney; appellant did not believe anyone else would confront his uncle about hurting Rodney. Appellant testified he went back to Crandall that night looking for his uncle. The jury also heard how appellant had owned the gun he used to shoot Uncle Larry for "years and years," and how he kept the gun in his car. Appellant testified he loaded the gun before he pulled up to his uncle on Griffin Lane, and he collected the casings before he left the scene. Appellant agreed the gun was an automatic rifle and explained that an automatic weapon "kicks the shells out." He also testified to the harm caused by an automatic rifle. Using an example, appellant testified a bullet would go straight through a "hog" and it would "die probably in ten or fifteen minutes." Thus, the evidence shows appellant was familiar with the gun, had loaded it before confronting Uncle Larry, "took action" purportedly to defend himself against his uncle whom he knew to be violent, and knew the gun could cause death. This evidence, coupled with the testimony appellant went looking for Uncle Larry to confront and kill him, does not constitute evidence appellant is guilty only of criminally negligent homicide. See Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985) ("Evidence that a defendant knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another, indicates a person who is aware of a risk created by that conduct and disregards that risk."); Johnson v. State, 915 S.W.2d 653, 658 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). We therefore conclude appellant was not entitled to an instruction on the lesser included offense of criminally negligent homicide and the trial court did not err by refusing the requested instruction. We overrule appellant's fourth point of error. CONCLUSION
Having resolved appellant's four points of error against him, we affirm the trial court's judgment.