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Date: 07-09-2021
Case Style:
Gabriel Delgato v. The State of Texas
Case Number: 02-20-00057-CR
Judge: Dana Womack
Court: Court of Appeals Second Appellate District of Texas at Fort Worth
Plaintiff's Attorney: Joshua Lewellyn
Joseph W. Spence
Defendant's Attorney:
Description:
Fort Worth, Texas - Criminal defense attorney represented Gabriel Delgato with a Murder charge.
The City of Fort Worth Police Department received a 911 call around 8 p.m.
on April 1, 2018, from an extremely upset caller who reported that someone had been
shot in front of her house at 4115 Avenue L. Officers arrived at the scene shortly
after and discovered that Baltazar Gomez had been shot to death. Witnesses at the
scene identified Delgato as the shooter and said that he had driven away in a Chrysler
Sebring immediately after the shooting. On April 10, 2018, Delgato was arrested in
Farmington, New Mexico. The State charged Delgato with murder, aggravated
assault, and tampering with evidence. Prior to trial, the State abandoned the
aggravated-assault charge.
A. Micaela Vera’s Testimony and Related Evidence
At trial, Micaela Vera testified that Delgato was the father of her two children,
that she and Delgato had previously dated, and that after breaking up with him, she 3
began to date Gomez. She and her children eventually moved in with Gomez and his
children at the Avenue L address.
According to Vera, after she, Gomez, and the children returned from an Easter
Sunday outing on April 1, Gomez began to leave for the store when Vera noticed that
Delgato had sent her several text messages. Vera said that Delgato had been texting
her all weekend, but she was purposely ignoring him. Vera went to the door to ask
Gomez to pick up something from the store when she heard Gomez and Delgato
yelling at each other. By Vera’s account, Gomez was standing near his car with the
front driver’s-side door open. Vera said that she began to yell at Delgato to leave, and
she approached Gomez. Vera recalled that “from there it’s just like a blur.” Vera
remembered hearing gunshots and Gomez telling her to run inside. Vera ran inside,
and Gomez followed her. Once both were inside, Vera slammed the door, and then
Gomez looked at her and said he had been shot. At first, Vera could not tell that
Gomez had been shot, but as he began to move, she saw blood. Vera said that
Gomez complained of feeling hot, and then he collapsed on the floor near the
hallway. Vera called 911.
The State published a recording of Vera’s 911 call to the jury. In the call, Vera
can be heard screaming and crying in an almost uncontrollable manner, yelling things
like “hurry,” and “my husband got shot in the head.” She then can be heard sobbing
and repeatedly screaming, “Please come!” 4
Vera said that later that evening, the police transported her to the station so
that she could speak with detectives. While at the station, police downloaded the
contents of her and Gomez’s phones. The State published text messages with
Delgato from Vera’s phone from the days leading up to the shooting. In one text,
Delgato told Vera that he was going to show Gomez “what the business is, just don’t
call the law.” In another text, Delgato expressed that he was going to give Gomez “a
little dose of this rage.”
On March 31, at roughly 11:00 p.m., Delgato sent Vera a text asking if Gomez
was home. Vera chose not to respond. According to Vera, Delgato then attempted
to call her twice, but she did not answer. Delgato began to text again, and this time
Vera responded in a hostile way. Delgato texted back, “Do what you do best, b[****],
and call 911 when I pull up.” Vera’s retort was, “LOL. Sounds good. You know you
can’t fight, crybaby.” Delgato then began to send Vera copies of texts that he had
exchanged with Gomez where Delgato indicated that Gomez was known to smoke
methamphetamine.
Vera said that on April 1, Delgato again began to text her early in the morning.
One of the texts indicated that Delgato wanted to meet Gomez and Vera in the
“[m]iddle of the street.” Delgato tried to call Vera, but she again declined to answer.
Delgato then started texting that he wanted his “money today.” By Vera’s account,
Gomez owed Delgato money. Again, Delgato tried to follow up the text with a call,
but Vera did not answer, so Delgato sent another message demanding money. Later5
that evening, after Vera, Gomez, and the children had arrived home from the Easter
celebration, Delgato sent a text which stated in part, “There’s nothing to talk about. I
just want my bread, and since both of y’all ain’t answering y’all’s phones, you know
how I’m going to handle that. Happy Easter.” Delgato then called again, but this
time Gomez answered. Gomez and Delgato got into a shouting match over the
phone. Shortly after, and between unanswered calls from Delgato to Vera’s phone,
Delgato sent a text stating, “Get the kids out of the way. I’m coming, b[****].”
On cross-examination, Vera explained that Delgato and Gomez had sometimes
gotten along in the past, but they also had exchanged threatening text messages
indicating that they wanted to physically fight one another. Vera also discussed that
Gomez had a shotgun in the house and was known to have had guns in the recent
past. Vera said that at some point in her relationship with Gomez she learned that he
was selling methamphetamine out of the Avenue L residence. But Vera stated that
she had asked him to stop because her children lived in the house. And Vera
confirmed that Delgato generally had permission to come to the Avenue L residence
to see his two children.
B. Officer Robert Dowdy’s Testimony
Officer Robert Dowdy of the City of Fort Worth Police Department testified
that he received a dispatch at 8:06 p.m. on April 1, 2018, regarding a “Priority 1
shooting,” which, Dowdy said, “takes precedence over any other call that’s holding.”
Dowdy said that he was the first officer to arrive on scene at the Avenue L residence 6
and a “juvenile female” directed him inside. According to Dowdy, as he walked
through the front door, he could hear a “loud commotion.” He followed the sound
into the hallway and found Gomez dead on the floor and Vera “laying over the body
and crying hysterically.” Shortly after, other officers arrived on scene. One of the
newly arrived officers took Vera out of the house, and Dowdy checked the house for
any possible suspects or other injured persons—he found neither. But he did
encounter Vera’s young son. Medical personnel arrived soon, and Dowdy went
outside to allow them room and to provide “scene security.”
C. Officer B. Morris’s Testimony and Related Evidence
Officer B. Morris1 of the Fort Worth Police Department also responded to the
dispatch. Morris recalled entering the Avenue L residence and encountering Dowdy,
Vera, and Gomez’s body lying on the floor. According to Morris, Vera was upset,
crying, and acting “kind of hysterical.” Morris escorted Vera out of the house and
began to gather information about the shooting.
While Morris was on the stand, the State published for the jury a portion of
video footage from Morris’s bodycam that night. In the video, and as Morris entered
the house, a woman can be heard crying and then as Morris rounded the corner, the
video displays Vera crawling over to Gomez’s bloodied body from a nearby doorway
in the hall and leaning over and hugging him. Morris can then be seen escorting Vera
1The record does not indicate Morris’s full name. 7
out of the house. As the two got outside to the porch, Morris asked Vera what had
happened. Vera responded, “My kids’ dad came over and was arguing [with Gomez]
and then just walked up and shot him in the head.” A teenage girl, who was also on
the porch, said that the shooter was Delgato.2
D. Efforts to Revive Gomez and What the Autopsy Revealed
Fort Worth Fire Lieutenant Jonathan David Schieck responded to the dispatch.
According to Schieck, he and other firefighters, acting in their capacities as EMTs,
arrived on scene at 8:15 p.m. Gomez was not breathing, and he did not have a pulse.
Firefighters began CPR immediately and also attempted ventilation. By Schieck’s
account, Medstar arrived shortly after he did and took over attempts to revive
Gomez.
Ryan Badillo, a primary paramedic for Medstar, testified that when he arrived,
he hooked Gomez’s body to a monitor and discovered that Gomez’s heart was not
pumping; thus, Badillo performed advanced cardiac life support including injecting
medications into Gomez’s bones. Badillo’s efforts did not revive Gomez.
Nizam Peerwani, the Tarrant County medical examiner, performed a forensic
autopsy on Gomez’s body on April 2, 2018. Peerwani discovered that Gomez had
gunshot wounds to his left forearm and left chest. Peerwani characterized the
gunshot wounds as having come from “a distant range” of “beyond three to four
2The record indicates that the girl on the porch was Gomez’s daughter from a
prior relationship. 8
feet.” Because Gomez had two entry and exit wounds, Peerwani could not confirm if
Gomez had been hit by more than one bullet. And he did not discover any gunshot
wounds to Gomez’s head or face. Peerwani described for the jury how a bullet had
entered Gomez’s chest, traveled through the heart, and out his back. Peerwani also
conducted a toxicology of Gomez’s blood, which tested positive for
methamphetamine and amphetamine. According to Peerwani, however,
methamphetamine played no part in Gomez’s death, and he determined Gomez had
died of “a gunshot wound of the chest.” Peerwani classified Gomez’s death as a
homicide.
E. Officer Rosales’s Testimony
Fort Worth Police Department Officer Rosales3
testified about his
investigation of the crime scene on the night of the shooting. Rosales said that he did
not find any casings or projectiles at the scene. He also did not find any bullet holes
on the exterior or interior of the two vehicles parked in the front yard nor any bullet
holes inside or outside the house. He did find a shotgun in the back bedroom, but it
did not have any blood on it, and there was no evidence the shotgun had been fired in
the yard. Further, Rosales did not find any blood smears or droplets in one of the
cars that he searched and photographed, but he did find Gomez’s “ID or driver’s
3Rosales is identified only as “Officer Rosales” in the record. 9
license.” According to Rosales, the shotgun in the bedroom was the only weapon he
found in either the house or car.
F. Detective Kyle Sullivan’s Testimony and Delgato’s Statement to Police
Detective Kyle Sullivan, a Fort Worth Police Department homicide detective,
said that he went to the Avenue L residence the night of the shooting. Like Rosales,
Sullivan also noted the shotgun in the bedroom, and he also did not find any bullet
damage to or near the car that Gomez had been standing by when he was shot. After
having observed the scene, Sullivan interviewed Vera and Gomez’s daughter.
According to Sullivan, Vera told him that Delgato was the person who had killed
Gomez. Sullivan then prepared an arrest warrant for Delgato.
Sullivan and his partner returned to the scene the next day and again looked for
fired cartridge casings hoping that the daylight would assist them, but they did not
find any. Sullivan and his partner then searched the neighborhood for surveillance
cameras. According to Sullivan, a house located near the Avenue L residence “had a
camera that was fixed at the front of the house and pointed right at the street.”
Sullivan was able to gain video footage taken the night of the shooting.
Sullivan then obtained a search warrant and searched Delgato’s house, which
Sullivan said was four to five miles away from the Avenue L residence. While
searching the house, he found a “Smith & Wesson gun box that had a serial number
on it, but there was no gun inside.” But Sullivan was able to use the box’s serial
number to learn that the box belonged to Delgato. Sullivan was also able to 10
determine that the gun that was originally in the box was a “.357, Model 640”
revolver. According to Sullivan, the fact that the gun was a revolver was significant
because it could explain why he had not found any fired cartridge casings at the scene.
On April 10, 2018, Delgato was arrested in Farmington, New Mexico. Sullivan
and his partner flew to Farmington the next day and interviewed Delgato. While
Sullivan was on the stand, the State published an audio portion of the interview.
During the interview, Delgato told the detectives that he and Gomez normally had a
good relationship but that he had become cross with Gomez because Gomez was
selling drugs from the house where Delgato’s kids were staying. He referred to
Gomez as a “meth head” who was “putting out guns.” Delgato also said that he had
been drinking alcohol for the three days leading up to the shooting, and he admitted
that he and Gomez had gotten into a heated phone conversation that day and that he
“spazzed out” after Gomez threatened to shoot him, so he went over to the Avenue
L residence with his gun. By Delgato’s version of the event, when he arrived, only
Gomez was in the yard. Delgato said that he fired his gun once but that he was not
actually trying to kill Gomez, and he did not even think he had shot Gomez.
Sullivan asked Delgato if Gomez had a gun, and Delgato said, “I physically
seen him in the trunk.” But Delgato never said that he saw Gomez with a gun.
Delgato said that after he fired his gun, he saw Gomez run into the house, and
Delgato “took off.” Delgato described the gun he had used as a “.357,” and although
he did not know the gun’s brand, he acknowledged that the box Sullivan had found 11
when searching Delgato’s house was the box that normally contained his gun.
Delgato claimed that he threw the gun in what he thought was a junkyard not far
from his house.
Delgato said that since the shooting, he wakes up every day with regret and
remorse, and he again asserted that he never intended to shoot Gomez; rather, he was
just “trying to put a scare to him.” Delgato repeatedly said that he did not intend to
kill Gomez. According to Delgato, he had decided that he would turn himself in the
day he was arrested.
On cross-examination, Sullivan testified that Delgato told him that he had gone
over to the Avenue L residence to “fight” Gomez, but he unintentionally shot him
instead. Sullivan said that Delgato never said Gomez had a gun; rather, Delgato told
him that Gomez had “something.”
On re-direct examination, Sullivan said that video footage he had obtained
from nearby the Avenue L residence confirmed Delgato’s version of how he drove
away after he shot Gomez. Sullivan also stated that it is common for a suspect to
make claims like “I accidently did this” or “I didn’t mean for this to happen” when
confessing to a crime—claims that Delgato made multiple times during his interview
with Sullivan.
G. The Charge Conference, the Jury’s Verdict, and Punishment
After both the State and Delgato rested and closed, the trial court held the
charge conference. At the conference, Delgato requested that the trial court include 12
instructions on self-defense, necessity, and criminally negligent homicide as a lesserincluded offense of murder. The trial court denied all three requests.
The jury returned verdicts of guilty to murder and tampering with evidence.
After the trial court heard punishment evidence, it found the State’s habitual-offender
notice to be true and imposed a sentence of seventy-five years’ confinement for each
charge, with the sentences to run concurrently. The trial court then rendered
judgment, and this appeal followed.
III. DISCUSSION
A. Self-Defense
In his first issue, Delgato argues that the trial court erred by denying his request
that the jury charge contain a self-defense instruction. The State argues that Delgato
was not entitled to the instruction because he was carrying a firearm in violation of
Texas Penal Code Section 46.02. See Tex. Penal Code Ann. § 46.02. We agree with
the State.
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id.
A defendant is entitled to a self-defense jury instruction when the issue is raised
by the evidence, “whether that evidence is strong or weak, unimpeached or
contradicted, and regardless of what the trial court may think about the credibility of 13
the defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). In
evaluating the trial court’s ruling, we view the evidence in the light most favorable to
the defendant’s requested submission. Id. A trial court errs in denying a self-defense
instruction if there is some evidence, from any source, that will support the elements
of self-defense. Id. A person generally is justified in using deadly force against
another in self-defense if, among other things, that person reasonably believes the
force is immediately necessary to protect against the other’s use or attempted use of
unlawful deadly force. See Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020)
(citing Tex. Penal Code Ann. §§ 9.31, 9.32). But Section 9.31 expressly provides that
the use of force is not justified when the actor seeks an explanation from or
discussion with the other person concerning the actor’s differences with the other
person while the actor is carrying a weapon in violation of Penal Code Section 46.02.
Tex. Penal Code Ann. §§ 9.31(b)(5), 46.02. Under Section 46.02, a person commits an
offense if he intentionally, knowingly, or recklessly carries on or about his person a
handgun and is not either (1) on his own premises or premises under his control or
(2) inside of or directly en route to a motor vehicle or watercraft that he owns or is
under his control. See id. § 46.02(a).
In this case, it is undisputed that when Delgato used deadly force against
Gomez, he was seeking an explanation from or discussion with Gomez concerning
their differences. In his statement to Sullivan, Delgato repeatedly said that he went to
the Avenue L residence to talk with Gomez about concerns that Gomez was selling 14
drugs out of his house while Delgato’s children lived there. There is also evidence in
the record that Delgato and Gomez were in a dispute over money and that Delgato
wanted to meet and discuss this issue with Gomez.
Further, as the State points out, Delgato stipulated at the beginning of trial that
he had at least one prior felony conviction in Texas. Because of his prior felony
conviction, Delgato was ineligible to obtain a license to carry a handgun. See Tex.
Gov’t Code Ann. § 411.172(a)(3). Delgato was also not on his premises or inside or
directly en route to a motor vehicle or watercraft that he owned. See Tex. Penal Code
Ann. § 46.02(a)(2). Thus, Delgato was seeking an explanation from or discussion with
Gomez concerning his differences with Gomez while carrying a weapon in violation
of Penal Code Section 46.02 rendering a self-defense instruction unavailable to him.
Therefore, the trial court did not err by refusing to instruct the jury on self-defense.
We overrule Delgato’s first issue.
B. Necessity
In his second issue, Delgato contends that the trial court erred by denying his
requested necessity instruction regarding his tampering-with-evidence charge because
his act of disposing of the gun was justified. We disagree.
A necessity instruction states, in pertinent part, that conduct is justified if the
actor reasonably believes the conduct is immediately necessary to avoid imminent
harm. Tex. Penal Code Ann. § 9.22(1). This prong of the necessity defense requires
evidence of a reasonable belief of both immediate necessity and imminent harm. 15
Murkledove v. State, 437 S.W.3d 17, 21 (Tex. App.—Fort Worth 2014, pet. dism’d,
untimely filed). But a defendant’s sincere belief that his conduct is immediately
necessary to avoid imminent harm is unreasonable as a matter of law if the undisputed
facts demonstrate a complete absence of “immediate necessity” or “imminent harm”
as legally defined. Id. at 25; see Arnwine v. State, 20 S.W.3d 155, 159 (Tex. App.—
Texarkana 2000, no pet.) (“The defense of justification based on necessity is assessed
from the standpoint of the accused.”). The Penal Code defines “[r]easonable belief”
as “a belief that would be held by an ordinary and prudent man in the same
circumstances as the actor.” Tex. Penal Code Ann. § 1.07(a)(42). It defines “[h]arm”
as “anything reasonably regarded as loss, disadvantage, or injury, including harm to
another person in whose welfare the person affected is interested.” Id. § 1.07(a)(25).
“Imminent,” while not defined in the Penal Code, means “something that is
immediate, something that is going to happen now.” Murkledove, 437 S.W.3d at 25.
Harm is imminent when there is an emergency situation and avoiding that harm
requires a “split-second decision” without time to consider the law. Id.
In this case, Delgato failed to present evidence of either immediate necessity or
imminent harm. As to immediate necessity, Delgato presented no evidence at trial to
support his claim that he believed disposing of the gun was immediately necessary to
avoid imminent harm. Although not making this argument at trial, on appeal, Delgato
claims that he believed disposing of the gun was necessary to avoid getting arrested 16
for unlawful possession of a gun or getting shot by the police.4
But during his
interview, the reason Delgato gave to Sullivan for disposing of the gun was that he
“was too heavy to be running with it, and [he] just remember[ed] tossing it.” This
statement says nothing about Delgato’s allegedly being in fear that police officers
would shoot him if they found a gun on him. And there is no evidence in the record
to support that Delgato’s alleged immediate necessity to throw the gun in the junkyard
when he did was based on a reasonable belief that he was in danger.
Delgato does point to a portion of his interview that he claims in his brief
shows evidence that he “expressed his fears that he would be shot anyway when he
was apprehended unarmed.” In this cited portion of Delgato’s interview, he stated
that a woman was helping him out “because in Fort Worth, dude, everybody was
talking all crazy—hey man—they’re armed and dangerous.” And then he said
something to the effect that when he was arrested in New Mexico, he had deliberately
come outside in his boxer shorts only because he wanted to show the arresting
officers that he did not have a weapon on him. But nowhere in this portion of his
interview did Delgato express that he threw the gun into the junkyard because he
feared the police would shoot him or that he had a reasonable belief that doing so was
an immediate necessity. We conclude that the record contains no evidence showing
Delgato reasonably believed that his conduct was immediately necessary. See Lee v.
4Even though Delgato did not make this argument at trial, we still must review
any alleged jury charge error. Kirsch, 357 S.W.3d at 649. 17
State, 442 S.W.3d 569, 580 (Tex. App.—San Antonio 2014, no pet.) (explaining that
the evidence did not raise a necessity issue because, apart from counsel’s statements,
there was no link between the appellant’s concerns about the harm he sought to avoid
and the criminal acts he took allegedly to avoid it).
Moreover, Delgato failed to put on evidence that he faced an imminent harm at
the time he disposed of the gun. Delgato claims in his brief that the harm (of being
shot by a police officer or arrested for possessing a gun) was “imminent because it
could have occurred at any moment.” But Delgato did not put on evidence that at
the time he tossed the gun that police officers were nearby who might have arrested
or shot him, that he was currently being pursued, or that he even heard police sirens
or saw an officer nearby. Thus, Delgato failed to show that any harm he might have
perceived was something that was immediate, something that was going to happen
right then, or something that required him to make a split-second decision without
time to consider the law. See Davis v. State, 490 S.W.3d 268, 275 (Tex. App.—Fort
Worth 2016, pet. ref’d) (“Harm is imminent when there is an emergency situation and
it is ‘immediately necessary’ to avoid that harm.”) (quoting Jackson v. State, 50 S.W.3d
579, 595 (Tex. App.—Fort Worth 2001, pet. ref’d)).
There is another independent reason why Delgato was not entitled to an
instruction on necessity—he caused the situation that allegedly made his evidence
tampering necessary. One who provokes a difficulty or is responsible for having
placed himself in the position from which he attempts to extricate himself by 18
committing a criminal offense is not entitled to a charge authorizing his acquittal of
that offense based upon necessity. Ford v. State, 112 S.W.3d 788, 794 (Tex. App.—
Houston [14th Dist.] 2003, no pet.).
Here, Delgato is the one who was responsible for having placed himself in the
position of possibly being apprehended by the police while possessing a gun or even
possibly being shot by police for having a gun. Delgato is the one who took the gun
to the Avenue L residence. Delgato is the one who shot Gomez. And Delgato is the
one who fled the scene and then later went walking with the gun on him. These are
the acts that allegedly gave rise to any necessity Delgato might have perceived—all
acts for which he was responsible. See Shafer v. State, 919 S.W.2d 885, 887 (Tex.
App.—Fort Worth 1996, pet. ref’d) (“[I]t is the law of this state that a person who is
responsible for having placed himself in the position from which he attempts to
extricate himself by committing a criminal offense is not entitled to a charge
authorizing his acquittal of that offense based upon necessity.”). Because we
conclude that the trial court did not err by denying Delgato’s requested necessity
instruction, we overrule Delgato’s second issue.
C. Lesser-Included Offense of Criminally Negligent Homicide
In his third issue, Delgato argues that the trial court reversibly erred by denying
his request to have an instruction in the jury charge on criminally negligent homicide
as a lesser-included offense of murder. Specifically, Delgato argues that the jury could
have credited his statement that he did not intend to shoot Gomez as mere 19
negligence. The State counters in part that “at best, the evidence [that Delgato] cites
could have raised an issue of recklessness” which is a higher standard than negligence
and that the jury was given the option to convict Delgato for manslaughter but did
not do so. We agree with the State.
A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual or intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual.
Tex. Penal Code Ann. § 19.02(b)(1), (2). A person commits the offense of criminally
negligent homicide if he causes the death of an individual by criminal negligence. Id.
§ 19.05(a). The Texas Penal Code defines the pertinent culpable mental states as
follows:
(a) A person acts intentionally, or with intent, with respect to . . . his
conduct when it is his conscious objective or desire to . . . cause
the result.
(b) A person acts knowingly, or with knowledge, with . . . respect to a
result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.
(c) A person acts recklessly, or is reckless, with respect to . . . the
result of his conduct when he is aware of but consciously
disregards a substantial and unjustifiable risk that the . . . result
will occur. The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care
that an ordinary person would exercise under all the
circumstances as viewed from the actor’s standpoint.
(d) A person acts with criminal negligence, or is criminally negligent,
with respect to . . . the result of his conduct when he ought to be
aware of a substantial and unjustifiable risk that . . . the result will 20
occur. The risk must be of such a nature and degree that the
failure to perceive it constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all
the circumstances as viewed from the actor’s standpoint.
Id. § 6.03(a)-(d).
An offense is a “lesser[-]included offense” if “it differs from the offense
charged only in the respect that a less culpable mental state suffices to establish its
commission.” Tex. Code Crim. Proc. Ann. art. 37.09(3). A defendant is entitled to a
lesser-included-offense instruction if (1) proof of the charged offense includes the
proof required to establish the lesser-included offense and (2) there is some evidence
in the record that would permit a jury rationally to find that, if the defendant is guilty,
he is guilty only of the lesser offense. Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim.
App. 2001). Such evidence must be directly germane to a lesser-included offense
before an instruction is warranted. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App.
1994). We must review all evidence presented at trial to make this determination.
Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). If the evidence raises
the issue of a lesser-included offense, a jury charge must be given based on that
evidence, “whether produced by the State or the defendant and whether it be strong,
weak, unimpeached, or contradicted.” Id. at 672 (quoting Bell v. State, 693 S.W.2d 434,
442 (Tex. Crim. App. 1985)).
Criminally negligent homicide is a lesser-included offense of murder. See
Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). Thus, we consider 21
whether some evidence exists that a defendant was guilty only of criminally negligent
homicide. Id. The key to criminal negligence is the failure of the actor to perceive the
risk created by his conduct. See Still v. State, 709 S.W.2d 658, 660 (Tex. Crim. App.
1986); Wong v. State, 745 S.W.2d 563, 565 (Tex. App.—Waco 1988, no pet.). Simply
because a defendant did not intend the result does not automatically entitle him to a
charge on criminal negligence. See Wong, 745 S.W.2d at 565. Rather, the difference
between criminally negligent homicide and manslaughter is the culpable mental state
of criminal negligence for the former and recklessness for the latter. See Lugo v. State,
667 S.W.2d 144, 147 (Tex. Crim. App. 1984). If the evidence shows that the
defendant’s awareness is such that he perceived the risk his conduct created, he is not
entitled to a charge of criminally negligent homicide. See Thomas v. State, 699 S.W.2d
845, 490 (Tex. Crim. App. 1985). Further, “[e]vidence 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 the risk.” Id. at 850. Such a person is “at least reckless.” Id. And a
defendant’s claim that he used a gun to warn or scare off a potential assailant is
evidence that he is aware of the risk of brandishing a loaded gun. Trujillo v. State,
227 S.W.3d 164, 168 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
Here, Delgato does not claim that he was unaware of the risks involved with
pointing a loaded gun at Gomez. Rather, Delgato demonstrated his familiarity with
guns and awareness of their associated dangers in several statements he made during 22
his interview with Sullivan. Indeed, he was able to recall the calibers and types of
guns he had allegedly seen in Gomez’s possession. He knew the caliber of gun he
used to shoot Gomez, and he told the detectives that the biggest problem he had with
Gomez was that his children were in a volatile environment. He accused Gomez of
being a “meth head” who was “putting out guns.” While he said that the reason for
going to the Avenue L residence was to have a discussion with Gomez, he brought
his gun because he believed that Gomez was likely carrying a gun and because Gomez
had threatened him just moments earlier.
During the interview, Delgato explained that he was not “stupid enough” to
shoot his gun in Gomez’s direction if his kids were outside, demonstrating he knew of
the gun’s potential danger. He also said that he was “trying to put a scare to
[Gomez].” And even though he claimed that he was not trying to shoot Gomez, he
said that he shot the gun in response to Gomez reaching for something in his trunk.
Despite being surprised that the bullet he fired hit Gomez, Delgato never claimed that
he was surprised that Gomez died from the bullet that hit him or that he was unaware
that a bullet fired from a gun has a high risk of causing death or injury.
We conclude that no rational jury could have found that Delgato was
unfamiliar with guns or unaware of the danger associated with them. Trujillo,
227 S.W.3d at 168 (holding that defendant’s testimony that he wanted the gun to
frighten off his alleged assailants showed that he was aware of the risk of brandishing
a loaded gun); see also Cardona v. State, 973 S.W.2d 412, 416 (Tex. App.—Austin 1998, 23
no pet.) (“Since Cardona admits that he shot the gun in the decedent’s direction, the
only instance that would require an instruction on criminal negligence would be if
some evidence suggested that Cardona failed to perceive the risk that a .38 revolver
could kill a human being when shot in her direction. Nothing in the record indicates
that such evidence was presented.”). Thus, the trial court did not err by refusing to
instruct the jury on criminally negligent homicide. We overrule Delgato’s third issue.
D. Motion to Quash
In his fourth issue, Delgato argues that the trial court reversibly erred when it
denied his motion to quash the State’s indictment. Specifically, Delgato claims that
paragraph three of count one in the indictment failed to inform him of the identity of
the victims of the constituent felonies alleged in the felony-murder charge. The State
responds that Delgato has failed to preserve this issue for our review, but in the
alternative, that the trial court did not err by overruling his motion.
In his motion to quash, Delgato specifically argued that “Paragraph 3 of Count
One of the indictment does not contain sufficient facts to put Defendant on notice of
the manner and means with regard to the predicate felonies alleged to support a
conviction under 19.02(a)(3).” But nowhere in the motion did Delgato complain
about a lack of notice because of the indictment’s failure to specify the victims of the
constituent aggravated assault, deadly conduct, or unlawful-possession-of-a-firearmby-a-felon offenses found in paragraph three of count one. It has long been held that
“[a]bsent an attempt to draw the court’s attention specifically to the failure to name 24
the victim of the underlying transaction, nothing is presented for review.” Woolls v.
State, 665 S.W.2d 455, 456 (Tex. Crim. App. 1983) (citing Kipperman v. State,
626 S.W.2d 507, 512 (Tex. Crim. App. 1981)). Because Delgato failed to draw the
trial court’s attention specifically to the failure by the State to name the victim in
paragraph three of count one of the indictment, he presents nothing for this court to
review. Id.
But even if Delgato had preserved this issue for review, we conclude that the
trial court did not err by denying Delgato’s motion. A challenge to the sufficiency of
the indictment is an issue of law, and a trial judge’s ruling on a motion to quash is
reviewed de novo. State v. Ross, 573 S.W.3d 817, 820 (Tex. Crim. App. 2019). The
Texas and United States Constitutions grant a criminal defendant the right to fair
notice of the specific charged offense. State v. Barbernell, 257 S.W.3d 248, 250 (Tex.
Crim. App. 2008) (citations omitted); see also U.S. Const. amend. VI; Tex. Const. art. I,
§ 10. To provide this fair notice, the charging instrument must convey sufficient
information to allow the accused to prepare a defense. Barbernell, 257 S.W.3d at 250.
In most cases, a charging instrument that tracks the relevant statutory text will provide
adequate notice to the accused. Id. at 251. But tracking the language of the statute
may be insufficient if the statutory language is not “completely descriptive” of an
offense. Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000).
Barbernell prescribed a two-step analysis for evaluating the adequacy of an
indictment’s allegations. 257 S.W.3d at 250. “First, a court must identify the elements 25
of an offense.” Id. at 255. Second, if an element of the offense describing an act or
omission by the defendant has been defined by the Legislature, a court must ask
whether the statute provides “alternative manners or means in which the act or
omission can be committed.” Id. If so, then the pleading “will supply adequate notice
only if, in addition to setting out the elements of an offense, it also alleges the specific
manner and means of commission that the State intends to rely on at trial.” Id.
Delgato does not claim that count one, paragraph three of the indictment failed
to track the felony-murder statute. Instead, Delgato focuses his argument on the
second step of the Barbernell analysis. Delgato claims that because the evidence in this
case “potentially involved at least two different targets of the aggravated assaults and
deadly conducts,”
5 his substantial rights were prejudiced because his “preparation of a
defense was inhibited because he was not apprised of the nature of the evidence
which he would have to contest.” Thus, Delgato argues, he did not have notice of the
specific manner and means of commission that the State intended to rely on at trial.
Here, the record demonstrates which constituent felonies the State intended to
rely upon—deadly conduct or unlawful possession of a firearm by a felon. The State
abandoned the aggravated-assault allegation in the indictment’s felony-murder
paragraph prior to trial, and Delgato specifically stated that he understood that.
5Delgato does not name who the two “different targets” are, but we agree with
the State that Delgato must be referring to Vera and Gomez. 26
Therefore, Delgato could not have gone to trial expecting to defend against the
aggravated-assault allegations he complains about.
The deadly-conduct statute provides that a person commits an offense if he
knowingly discharges a firearm at or in the direction of: (1) one or more individuals;
or (2) a habitation, building, or vehicle and is reckless as to whether the habitation,
building, or vehicle is occupied. Tex. Penal Code Ann. § 22.05(b). The offense is
completed whenever the defendant knowingly discharges a firearm “at or in the
direction of” a person or particular thing. See id. There is no requirement that the
discharge come into contact with a person or thing. Lozano v. State, 577 S.W.3d 275,
278 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Thus, deadly conduct is a
conduct-related offense, and the allowable unit of prosecution is each discharge of the
firearm, not each victim. Id.
Because the allowable unit of prosecution is each discharge, it did not matter
how many potential victims there were to Delgato’s act of deadly conduct—he
committed only one deadly-conduct offense when he discharged his gun. So his claim
that he did not know which deadly conduct the State intended to rely upon is without
merit simply because only one deadly-conduct offense was raised by the evidence.
See id.
To establish the unlawful possession of a firearm by a felon, the State had to
prove the defendant: (1) was previously convicted of a felony offense; and
(2) possessed a firearm after conviction and before the fifth anniversary of his release 27
from confinement or supervision, whichever is later, or that he possessed the firearm
“at any location other than the premises at which” the felon lives. Tex. Penal Code
Ann. § 46.04(a)(1).
Delgato stipulated to having been previously convicted of a felony in Texas and
to his release date. The record also shows that the parties had discussed this
stipulation prior to trial. And like the deadly-conduct offense, only one unlawfulpossession-of-firearm offense was raised by the evidence. Therefore, Delgato was on
notice of the State’s intent that he was the subject of the unlawful-possession-of-afirearm-by-a-felon language contained in paragraph three of count one in the
indictment. Because the indictment was specific enough to give Delgato proper
notice of the constituent felonies in the felony-murder charge, the trial court did not
err by denying Delgato’s motion to quash. Barbernell, 257 S.W.3d at 251. We overrule
Delgato’s fourth issue.
Outcome: Having overruled all four of Delgato’s issues on appeal, we affirm the trial
court’s judgment.
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