Smith v. State

Full title: ARCHIE LEE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 7, 2009

No. 05-08-00154-CR (Tex. App. Dec. 7, 2009)

Opinion

No. 05-08-00154-CR

Opinion Filed December 7, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-73389-WV.

Before Chief Justice WRIGHT and Justices RICHTER and FILLMORE.

OPINION

Opinion By Justice RICHTER.

A jury convicted Archie Lee Smith of the murder of his wife Beverly Williams and assessed punishment at forty years' imprisonment. In six issues on appeal, appellant contends the trial court erred because the evidence is legally and factually insufficient to support the implied rejection of his self-defense claim, autopsy photographs were improperly admitted into evidence, the trial court erred in denying his motion for mistrial, and the trial court erred in refusing his requested jury charge on deadly conduct. Concluding that appellant's arguments are without merit, we affirm the trial court's judgment.

Background

Because our analysis of the sufficiency of the evidence includes a detailed review of the facts, we limit our recitation here to a brief synopsis. Williams, the deceased, was married to appellant who is deaf. Williams and appellant had separated and Williams was no longer living at their house. On the day in question Williams met appellant at their house to tell him that their marriage was over. The couple struggled over a gun inside the house and Williams was shot three times. Appellant then followed Williams outside and shot three more times, aiming at Williams's chest. Williams died as a result of the multiple gunshot wounds she suffered. Appellant turned himself in to the police and told them where he had disposed of the gun. Appellant was subsequently charged with murder and the case was tried before a jury. The jury found appellant guilty and sentenced him to 40 years' imprisonment. This appeal followed.

Discussion

Legal and Factual Sufficiency

In his first two issues, appellant asserts the evidence is legally and factually insufficient to support his conviction for murder in light of the evidence that he acted in self-defense. When the challenge to the sufficiency of the evidence pertains to the rejection of a self-defense claim, we apply the same standards used in reviewing the sufficiency of the evidence to support a guilty verdict; we review the sufficiency of the evidence to support both the verdict and the rejection of the defense. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (factual sufficiency); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (legal sufficiency). In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, we view all of the evidence in a neutral light to determine

whether the fact-finder's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused Williams's death, or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused Williams's death. See Tex. Penal Code Ann. § 19.02(b) (1) (2) (Vernon 2003). Appellant does not dispute that he shot and killed Williams. Instead, he claims that he acted in self-defense. Appellant maintains that the justification for his actions is evidenced by his tumultuous relationship with Williams that resulted in domestic disturbance calls to the police, Williams's history of drug use and Williams's propensity for violent behavior. A person is justified in using deadly force against another when and to the degree he believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force, if the actor would be justified in using force under section 9.31 of the penal code and a reasonable person in the actor's situation would not have retreated. See Tex. Penal Code Ann. §§ 9.31, 9.32 (Vernon 2003).¹ Deadly force is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." Tex. Penal Code Ann. § 9.01(3) (Vernon Supp. 2009). A "reasonable belief" is one that would be held by an ordinary and prudent man in the same circumstances as the actor. Id. § 1.07(c) (42). A defendant raising a defensive issue bears the burden of producing some evidence that supports the particular defense and, once accomplished, the State bears the burden of persuasion to disprove the raised defense. See Zuliani, 97 S.W.3d at 594-95; Saxton, 804 S.W.2d at 913-14. The State's burden of persuasion, however, "is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt." Zuliani, 97 S.W.3d at 594; see also, Harrod v. State, 203 S.W.3d 622, 626 n. 4 (Tex. App.-Dallas 2006, no pet.). When a jury finds a defendant guilty, there is an implicit finding against the defensive theory. Id. Deborah Williams ("DW"), the victim's sister, testified that Williams and appellant had separated and were no longer living together. The appellant did not know where Williams was living and she did not want him to know. DW testified that on a number of occasions, Williams came to her in distress about some type of violence that involved appellant. On one occasion, DW saw her sister with scratches on her. Williams told her that appellant had scratched her and choked her, so she went over the neighbor's house to hide. Despite hearing reports of appellant's violence from her sister, DW never saw the appellant act violently toward her sister. DW testified that other than the time her sister killed her boyfriend, her sister was not a violent person. On cross-examination she admitted that her sister pled guilty to murder and was on probation for 10 years. Although she admitted that her sister was sent to the penitentiary, DW stated that it was for some other offense that occurred after her sister had completed her probation for murder. DW also stated that her sister wanted to divorce appellant and he was not happy about it. She was aware that appellant had seen her sister with another man because appellant told her about it. On the Sunday, Monday, and Tuesday before her sister was killed, appellant visited DW in an attempt to learn where his wife was living. DW declined to tell him, and suggested that he ask her father. Finally, on Tuesday, DW agreed to talk to appellant. DW is unable to communicate through sign language, so she and appellant communicated by writing on a piece of paper. Appellant wanted to know where Williams was, and wrote either that they were getting a divorce or that Williams was divorcing him. Appellant also wrote "Beverly will pay. God won't help. Cry. Pain. Hurt." DW asked appellant if he was going to hurt her sister and he just grinned and shook his head no. DW called her sister to suggest that she talk to appellant and convinced her to meet with appellant the next day. Appellant said "no, get her to come now." Williams refused, and a meeting was scheduled for the following day. When appellant left DW's house, he kissed her on the cheek and said "I love your family." DW thought that was odd, and felt sorry for appellant. At the time of trial, DW was unable to produce the paper on which she and appellant had written. Although she thought she had put the paper in a secure place, it had been misplaced. Linda Smith testified that she was a neighbor of Williams and appellant. On the day in question, she was sitting in her living room with her granddaughter. At around 10:00 a.m., Smith's granddaughter said someone was shooting. Smith did not hear the shots, but she looked out and saw Williams's shadow as she ran across Smith's front yard. Smith heard a noise at her back door and then saw appellant jump across her porch and run to the back yard in pursuit of Williams. After that, Smith heard three shots and called 911. Dallas Police Detective Dineen Corden testified that she worked the crime scene in this case. By the time she reached the scene, Williams was en route to the hospital. Detective Corden photographed the scene and used the photographs at trial to describe the house for the jury. Detective Corden found three fired cartridge cases in the living room of the home; one was underneath a cushion on the couch and the other two were on the floor. A magazine fitting an automatic weapon was found sitting on the dining room floor in front of the buffet. The magazine contained three live rounds and three cartridges. At the residence next door, Detective Corden found three additional fired cartridge cases and some bloodstains on the driveway. Dr. Keith Pinkard, a Medical Examiner at the Southwestern Institute of Forensic Sciences, also testified on behalf of the State. Dr. Pinkard performed the autopsy on Williams. Dr. Pinkard found a total of five gunshot wounds to Williams's body, and listed the cause of death as multiple gunshot wounds. During Dr. Pinkard's testimony, four autopsy photographs were admitted into evidence. John Myles, Williams's father, testified that Williams asked him to be present at her house on the day she planned to tell appellant that their marriage was over. When Myles arrived, Williams was on the porch talking to her mother on her cell phone. Williams handed her father the phone and went inside the house. Myles stayed on the front porch talking on the phone for about 15 minutes. He heard two gunshots and then heard his daughter say "Daddy, Daddy, he done shot me." Myles went inside the house and found Williams between the couch and the coffee table. Williams was in the process of getting up. Myles did not see the appellant, but heard a noise from the bathroom area that sounded like a clip being put in a gun. Myles stated "Come on. Let's go." Williams got up. Myles thought Williams followed him out of the front door, but when he got to the curb and turned around, she was not there. Myles saw appellant standing on the porch pointing a gun at him. Myles thought appellant was going to shoot him, so he walked into the street and called 911. While he was on the phone, he heard two more shots. A bystander asked Myles if he had been shot and he replied, "No, he shot my daughter." Myles progressed up the street and stood behind a dumpster. As Myles stood there, he saw appellant run down the street screaming and then get into his car and drive away. The police and an ambulance arrived approximately fifteen minutes later, and Myles returned to the house. Williams was placed on a stretcher and Myles thought she was going to be okay because she was moving her hands. After he left his daughter's house, Myles went to the police station. While he was at the police station, a detective informed Myles that Williams had died. Detective Tommy Raley, a Detective with the Dallas Police Department, testified that he assisted Detective Shinn with the investigation. Detective Raley was asked to go to a location in South Dallas and retrieve the handgun that was used in the offense. He found the handgun in a wooded area off of Piedmont and Jim Miller Road. Defective Raley also recovered the receipt from the pawn shop where the handgun was purchased. The receipt shows that the handgun was purchased by appellant, and the serial number on the receipt matches the serial number on the handgun that was recovered. After the State rested, appellant testified in his own defense.² Appellant testified that he met Williams when one of his friends told him there was a woman looking for a good deaf man for a husband. Williams was on parol at the time. Appellant worked as a mail room clerk and stated that Williams was "a housewife, like a maid." Although the relationship was initially loving, everything changed six months after Williams and appellant were married. There was violence in the home, which resulted in domestic disturbance calls to the police. On one occasion, Williams stabbed him with a knife and as a result, spent 4 days in jail. He dropped the charges because her family asked him to and because Williams cried so much. The police were not called, however, for every instance of violence. Appellant described one occasion when Williams poured hot water on him while he was sitting on the toilet. She held a gun on him and told him she needed money, so he gave her his wallet. Appellant stated that he would do whatever Williams asked him to do for her. On another occasion, she held a rifle to his chest. Appellant stated that he found the pipes Williams was smoking hidden in the bathroom. He also found a substance that her father told him was "just a little cocaine." Appellant testified that Williams was using drugs and refused his request to get counseling. Williams was acting weird and was very nervous and twitching all of the time. After appellant went to sleep at night, Williams would sneak out of the house, take the car, and not return until morning. Appellant further testified that he was afraid Williams was going to kill him because of her violent behavior with him and because she had killed her first "husband." Williams said he would do whatever Williams wanted him to do for her. After Williams and appellant separated, he wanted to get back together but told Williams she would have to stop using drugs. In 2006, appellant discovered that Williams had been seeing another man. He made the discovery when a car pulled up next to him and he saw Williams in the car with another man. Appellant was shocked and very upset. Williams told appellant that the man had been living with her for two years. Williams smiled at appellant and said "so you're deaf." Appellant asked Williams if that meant she did not love him because he is deaf and she just shook her head and shrugged her shoulders. That same day, appellant purchased a gun to defend himself because he believed his wife was dangerous and because he could not hear. Appellant slept with the gun. Although the gun was purchased on the day he saw his wife with another man, appellant stated that he purchased the gun in the morning because he was afraid of his wife. He did not see his wife with another man until later that afternoon. Appellant stated that on the day of the offense, he was awakened when Williams's father entered the house. Williams arrived shortly thereafter, and told appellant she needed to talk to him inside the house. Appellant claimed he forgot the gun was in the house on the table. Williams saw the gun and asked appellant what he was doing with it. Appellant told Williams not to touch the gun but she grabbed it. Appellant tried to grab the gun from Williams, a struggle ensued, and a shot was fired. Appellant stated that Williams hit him in the face with her fist and he "lost it." In response to a question about whether subsequent shots were then fired, appellant stated "Yes. I'm tired of her abuse. She tried to stab me. She killed somebody. I was scared to death." Appellant testified that he and Williams were arguing and they both went outside. Williams started walking toward the neighbor's house, and appellant followed her. Appellant still had the gun in his hand. Williams was standing up, but then she fell over. She was on the ground, laying on her side. Then, he got into his car and took off. Appellant initially stated that he did not remember any shots being fired while he was outside the house. He did not hear anything. But appellant later testified that he had a muscle spasm when he shot Williams outside and that he aimed the gun toward Williams's chest area. Appellant admitted that he left the scene because he did not care if Williams lived or died. After appellant left the scene, he went to Pleasant Grove to his brother's house. He disposed of the gun along the way. His brother called the police and appellant turned himself in. While he was at the police department, appellant spoke to Detective Shinn. Appellant told Detective Shinn where he had purchased the gun and drew a map of the location where he had disposed of it. On cross examination, appellant admitted that he had visited Williams's sister the day before, but claimed he did not know that Williams was coming to his house. He stated that when he and Williams were struggling for the gun, it went off one time and the bullet hit her leg. Williams hit him after he had control of the gun. He then shot her twice more. Appellant claimed that at the time Williams hit him he was afraid for his life. Appellant denies reloading the gun. Instead, he said that the clip fell out of the gun and he put it back in because he was scared and nervous. Detective Colleen Shinn was also called to testify for the defense. Detective Shinn testified that she interviewed appellant after his arrest. Appellant was informed of his rights through a qualified interpreter and did not request an attorney. The interview was videotaped and the videotape was admitted into evidence. Eric Boger, appellant's brother, also testified. Boger stated that after the incident, appellant called him from a friend's house. Boger persuaded appellant to come to his house and turn himself in to the police. When appellant arrived at Boger's house, he was hysterical, crying, confused, and scared. The two did not have an opportunity to speak before the police arrived. Appellant's testimony is the only evidence raising the issue of self-defense, and the jury's decision to reject the claim ultimately hinged on the credibility of the witnesses. It was within the jury's province to resolve the disputed versions of the events in question. See Lee v. State, 259 S.W.3d 785, 792-93 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). The jury was free to accept or reject any or all of the evidence presented by either side. See Saxton, 804 S.W.2d at 914. Thus, the jury could have chosen to disbelieve the testimony supporting appellant's self-defense claim and believe other testimony that did not support appellant's claim of self-defense. See Lee, 259 S.W.3d at 792 (jury could have chosen to believe testimony of witness who relayed facts showing appellant did not act in response to immediate threat). Because the record does not clearly reveal a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. See Lancon, 253 S.W.3d at 705-05. On this record, we cannot conclude that a rational jury could not find beyond a reasonable doubt that appellant committed the offense of murder and did not act in self-defense. Therefore, we conclude that the evidence is legally and factually sufficient to support the jury's implied rejection of appellant's self-defense claim. Appellant's first two issues are overruled.

Photographic Evidence

In his third issue, appellant argues that the trial court erred in overruling his objections to four autopsy photographs that were admitted into evidence. Appellant contends the photographs should have been excluded from evidence under rule of evidence 403 because the probative value of the photographs was substantially outweighed by the danger of unfair prejudice and because the photographs were cumulative. The decision to admit photographic evidence is generally left to the sound discretion of the trial court. See Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005). 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. Photographs are admissible as competent evidence where they accurately portray anything which is competent for a witness to describe in words, or where they are helpful as an aid to a verbal description of objects and conditions, provided they are relevant to some material issue. Photographs are not rendered inadmissible merely because they vividly bring to jurors the details of a shocking crime or incidentally tend to arouse passion or prejudice. Erazo v. State, 144 S.W.3d 487, 490 (Tex. Crim. App. 2004). Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). We consider the following factors when performing a rule 403 analysis as to the admissibility of photographs: (1) the number of exhibits offered; (2) the gruesomeness of the photographs; (3) the detail in the exhibits; (4) the size of the photographs; (5) whether the photographs are in black and white; (6) whether the photographs are close-up; and (7) whether the body depicted is clothed or naked. See Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000). Here, the complained-of photographs, Exhibits 29, 30, 31, and 32, were offered and admitted into evidence during the State-sponsored testimony of Dr. Pinkard. Exhibits 30, 31, and 32 depict the gun shot wounds Williams suffered and were offered to illustrate the medical examiner's testimony about the orientation of the entrance and exit wounds. Dr. Pinkard testified that the photographs would be helpful because the diagram that was used during his testimony did not show the actual wounds. Thus, the pictures were probative of the circumstances related to the shooting and the nature of the fatal wounds inflicted on Williams. From the record, it cannot be determined whether the pictures were in color or in black and white. The size of the photographs that have been reproduced for the record is approximately 5 x7, and there is nothing to indicate that a different size was admitted into evidence or shown to the jury. The photographs were not taken at extremely close range and did not contain unnecessary or unusually disturbing detail. There were only four photographs and each depicted something different. Therefore, they cannot be deemed cumulative. See Etter v. State, 629 S.W.2d 839, 842 (Tex. App.-Houston [14th Dist.] 1982) (Murphy, J. dissenting) (cumulative evidence is defined as additional evidence to the same point), aff'd, 679 S.W.2d 511. None of the photographs reveal any injuries that may have resulted from the autopsy procedures. Although Williams is not clothed, a photo of an unclothed body used to illustrate wounds does not necessarily render the photograph inadmissable. See e.g. Rojas, 85 S.W.3d at 816 (holding photo of unclothed victim admissible). Given the wounds being illustrated, Exhibits 30, 31, and 32 are not unnecessarily gruesome or intrusive. Based on our analysis of the rule 403 factors, we conclude the trial court did not abuse its discretion by admitting Exhibits 30, 31, and 32 into evidence. Exhibit 29 depicts the results of the life-saving efforts at the hospital. Dr. Pinkard testified that the photograph shows the body in the condition in which it arrived at the morgue. But even if the probative value of Exhibit 29 is outweighed by its inflammatory nature, we cannot conclude that appellant suffered harm. Improper admission of evidence constitutes a non-constitutional error we disregard unless it affected appellant's substantial rights. Tex. R. App. P. 44.2(b); Jones v. State, 111 S.W.3d 600, 608 (Tex. App.-Dallas 2003, pet. ref'd). Thus, we affirm a criminal conviction despite non-constitutional error if, after examining the record as a whole, we are left with fair assurance the error did not influence the jury or had but a slight effect. Jones, 111 S.W.3d at 608. The jury heard testimony from several witnesses about Williams being shot, and was aware that she had been transported to the hospital. The jury also viewed photographs of the wounds resulting from the gunshots. Dr. Pinkard explained that Exhibit 29 demonstrated an incision on the abdomen and various other types of medical interventions utilized in an attempt to save Williams. Therefore, the jury was made aware that the condition of the body depicted in the photograph did not directly result from the gun shots. Viewing the record as a whole, we cannot conclude that this single photograph influenced the jury or had more than a slight effect. We therefore resolve appellant's third issue against him.

Motion for Mistrial

In his fourth and fifth issues, appellant contends the trial court erred in denying his motion for a mistrial. Specifically, appellant asserts that Smith "volunteered information about appellant that was an extraneous offense" and that in each of the two instances where this occurred, the court's curative instruction was insufficient to cure the error. We disagree. When reviewing a trial court's ruling on a motion for mistrial, an appellate court must uphold the trial court's ruling if it was in the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). A mistrial will be required only in extreme circumstances where the prejudice is incurable. See Gallo v. State, 239 S.W.3d 757, 775 (Tex. Crim. App. 2007); Archie 221 S.W.3d at 699. A trial court generally does not err in denying a motion for mistrial after instructing the jury to disregard improperly admitted extraneous offense evidence because the instruction cures any improper impression created by the evidence. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); see also Rojas, 985 S.W.2d at 250 (references to extraneous offenses can ordinarily be cured by an instruction to disregard). When determining whether to grant a mistrial, a trial court should balance three factors: (1) the severity of the misconduct; (2) the trial court's measure to cure the misconduct; and (3) the certainty of conviction absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). When a trial court gives a curative instruction, the jury is presumed to have followed the instruction. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Whether a witness's improper reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In this case, the offending statements surfaced during Smith's testimony. During her testimony about an occasion when she relayed to Williams that appellant wanted to talk to her, Smith was asked about Williams's mental state. Smith responded:

She was crying. She didn't want to meet him. I convinced her — I kept — I told her that he was over there and he was asking — he wrote down on the paper she didn't love me and I told her maybe you should talk to him and tell him the reason why you are leaving him is not because of nothing wrong with him, it's because of the way he treats you and pull guns on her and loaded. I told her she should explain it to him and tell him.

The trial court sustained the resulting objection and instructed the jury as follows:

Ladies and gentlemen, I do instruct you to disregard that last bit of testimony from the witness. As I told you prior to this time, sometimes things will happen in the trial that you are not supposed to hear. I rely on you not to pay any attention to the last comments of the witness. You cannot use them for your deliberations. You cannot use them for any evidence in this case, your recollection of what she testified to. That said, you may proceed.

Appellant then moved for a mistrial and his motion was denied. Later in her testimony, Smith stated that she knew appellant could be violent. Appellant's objection was sustained and the jury was instructed to disregard the testimony. Again, appellant moved for a mistrial, and the motion was denied. Although appellant generally asserts otherwise, nothing in the record suggests Smith's testimony was so highly prejudicial and incurable that the court erred in denying the motion for mistrial. The complained-of statements were not solicited by the State, nor were they repeated or emphasized. The court promptly instructed the jury to disregard the statements. With the first instruction, the court not only gave a very thorough instruction, but explained why the instruction had been given. We note also that the references to appellant's conduct did not introduce the jury to new information; other witnesses testified without objection concerning appellant's use of guns and violence against Williams. Appellant did not then, nor does he now, specifically complain about the wording of the instruction. Instead, he simply asserts that the instruction was somehow "insufficient to cure the error." The weight of the State's evidence against appellant, however, was significant and nothing in the record suggests the jury would have come back with a different verdict without the complained-of statements. We therefore conclude that appellant's argument is without merit and the trial court did not err by refusing to grant a mistrial. Appellant's fourth and fifth issues are overruled.

Denial of the Requested Jury Charge

In his sixth issue, appellant contends the trial court erred by denying his request to charge the jury on the lesser-included offense of deadly conduct. The State counters that the evidence in this case does not support a deadly conduct instruction. We agree with the State. An offense is a lesser-included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, or if it differs from the offense charged only in that a less culpable mental state suffices to establish its commission. Tex. Code Crim. Proc. Ann. art. 37.09(1) (3) (Vernon 2006). This inquiry is a question of law that is performed by comparing the elements of the offense as alleged in the indictment with the elements of the potential lesser-included offense. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). A trial court must submit a charge on a lesser-included offense if (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record which would permit a jury to rationally find that if the defendant is guilty at all, he is guilty only of the lesser-included offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). In other words, the evidence must establish the lesser-included offense as "a valid, rational alternative" to the charged offense. Hall, 225 S.W.3d at 536. Thus, our first task is to compare the elements of the charged offense with the elements of the lesser offense that might have been added to the charge. To prove murder as alleged in the indictment, the State was required to show that appellant caused the death of Williams by shooting a firearm at her with the intent to kill her or cause her serious bodily injury. See Tex. Penal Code Ann. § 19.02(b) (1)-(2) (Vernon 2003).³ A person commits the offense of deadly conduct if he "recklessly engages in conduct that places another in imminent danger of serious bodily injury" or 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 (a), (b) (1) (Vernon 2003). An offense under section (a) is a Class A misdemeanor and an offense under section (b) is a third-degree felony. Id. § 22.05(e).⁴ Deadly conduct differs from murder in its culpable mental state. Deadly conduct requires a reckless mental state, whereas murder requires knowledge or intent. See Tex. Penal Code Ann. § 22.05 (a) (Vernon 2003); Tex. Penal Code Ann. § 19.02(b) (1)-(2) (Vernon 2003). Intent is a higher degree of culpability than recklessness. Tex. Penal Code Ann. § 6.02(d) (Vernon Supp. 2009). To prove deadly conduct, the State would only have been required to show that appellant recklessly placed Williams in imminent danger of serious bodily injury. To prove the greater offense of murder, the State was required to prove the elements of deadly conduct "plus something more." See Guzman, 188 S.W.3d at 189; see also Jacob v. State, 892 S.W.2d 905, 908-09 (Tex. Crim. App. 1995) (stating elements of offense claimed to be lesser-included offense must be examined to see if elements are functionally the same or less than those required to prove the charged offense). Because a comparison of the elements of the two offenses demonstrates that deadly conduct is a lesser-included offense of murder as charged in this case, the first prong of the test is met. See Guzman, 188 S.W.3d at 189 (determining deadly conduct lesser-included offense of attempted murder); Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986) (finding deadly conduct lesser-included offense of attempted capital murder); Flores v. State, 245 S.W.3d 432, 440 (Tex. Crim. App. 2008) (deadly conduct lesser-included offense of capital murder). Having determined that deadly conduct is a lesser-included offense of murder in this case, we turn now to the second step of the inquiry: whether the evidence is such that a rational jury could find that if appellant is guilty, he is only guilty of deadly conduct. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to the lesser charge. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser-included offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994). In refusing the requested charge, the trial court noted that appellant could not prove that he did not cause Williams's death, and explained that he based his decision on Mosley v. State, 2003 WL 21467075 (Tex. Crim. App. 2003) (op. on rehearing) (not designated for publication). In its per curiam opinion on rehearing, the Mosely court considered the denial of a requested charge on deadly conduct in the context of a capital murder conviction. The defendant claimed the evidence showed that he was guilty of deadly conduct because he forgot he had a gun in his pocket and only pulled the gun out in an attempt to get rid of it. Mosely, WL 21467075 at *1. The gun discharged in an ensuing struggle with a police officer. The court concluded that this testimony did not entitle the defendant to a deadly conduct instruction because the defendant also pointed his gun at the police officer and shot him while he was on the ground. Id. Because the testimony showed that the defendant was at least reckless as to the risk of causing death and did not deny causing the victim's death, he was at least guilty of manslaughter. Id. Relying on Jackson v. State, 992 S.W.2d 469, 474-75 (Tex. Crim. App. 1999), the court concluded that the appellant was not entitled to a lesser-included offense instruction on deadly conduct when the evidence showed him to be guilty of at least some form of homicide. Id. ⁵ The court of criminal appeals has also opined that while deadly conduct is generally aimed at capturing conduct that falls short of harming another, not all shootings resulting in death or injury are "inevitably and necessarily beyond the scope of the offense of deadly conduct." Guzman, 188 S.W.3d at 192. The Guzman court noted that the plain language of the penal code makes clear "it is not the result of conduct (death, serious bodily injury or bodily injury) that distinguishes the offense of deadly conduct from murder, attempted murder, or aggravated assault, but rather the mental state with which the person acts." Id. The court further noted that there is nothing in the statute which limits prosecution for the offense of deadly conduct "to only that which threatens but fails to cause injury to another." Id. The offense of deadly conduct neither requires nor excludes proof of physical injury. Id. Therefore, our focus does not rest entirely on whether appellant caused Williams's death. Instead, we examine the evidence concerning the mental state with which appellant acted when he caused Williams's death. Appellant urges us to consider his testimony concerning the struggle for the gun inside the house as evidence of recklessness. According to appellant, this raises the issue of deadly conduct because he did not intend to kill Williams. Appellant relies on Ortiz v. State, 144 S.W.3d 225, 234 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) to argue that a rational jury could conclude he did not intend to commit serious bodily injury, but due to his poor aim or the trajectory of the bullet, Williams was nonetheless fatally injured. Although the Ortiz court instructed the jury on deadly conduct despite the fact that the defendant caused the victim's death, appellant's reliance on Ortiz is misplaced. In Ortiz, the defendant was charged with murder but convicted on the lesser-included offense of felony deadly conduct. On appeal, the defendant argued the court erred in submitting the deadly conduct charge. The court held that the record did not affirmatively demonstrate error or egregious harm. Id. at 229-230. In dicta, the court observed that even if it considered appellant's contention on the merits it would fail. Applying the two-prong analysis concerning the submission of a lesser-included offense charge, the court noted that the first prong of the test was satisfied because deadly conduct was a lesser-included offense of murder as charged in that particular case. Id. at 233. The second prong of the test was also satisfied because there was evidence that the defendant fired his pistol twice into the air, which was some evidence of deadly conduct. Id. at 234. Here, in contrast, the first shot resulted from the struggle for the gun. Thus, there is some evidence of recklessness as to the first shot fired. But after Williams hit appellant in the face, he said that he "lost it," gained control of the gun, and shot her again twice because he was tired of her abuse. He then followed her outside and shot her twice more as she lay on the ground. Although appellant testified that the shots fired outside the house resulted from muscles spasms, he admitted that he followed Williams outside and aimed the gun at her chest. Unlike Ortiz, the evidence in the instant case concerning the shots following the initial shot inside the house does not support an inference that appellant acted recklessly and the resulting death occurred only because of an errant bullet or appellant's inability to accurately aim the gun. To the contrary, appellant's own testimony establishes an intent to cause death or serious bodily injury and that his conduct resulted in Williams's death. This evidence precludes a finding that appellant could only be guilty of deadly conduct. Viewing the evidence in the context of the entire record, we cannot conclude the evidence establishes that the lesser-included offense of deadly conduct was a rational alternative to the charged offense. The trial court did not err in refusing the instruction. Appellant's sixth issue is overruled. Having resolved all of appellant's issues against him, we affirm the trial court's judgment.