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Click here for the full text of this decision FACTS:At the 16th birthday party for Cesar Ramos, which was fueled by beer and grain alcohol-spiked punch, several fights broke out between and among both girls and boys. After one of the boys, Miguel Ortiz, fired a gun into the air, the crowd turned hostile against him. He, Raul Ortiz and two others ran to Raul’s car. When they tried to leave, people threw bottles at them. Raul stopped, got out of the driver’s side, pulled out a pistol and fired several shots before driving away. After they left, Cesar found his brother Edwin lying on the ground. Edward had been shot in the chest, and he later died from his wounds. After interviewing several of the party guests, and after two party-goers identified Raul, Houston police officers arrested Raul at school. Raul waived his legal rights and made a formal statement. He said that after people started throwing bottles at the car, Miguel stuck his gun out the window and fired. Raul drove on, then stopped the car, whereby Miguel fired several more shots from the car. He claimed Miguel was the only person in the car with a gun. The other two people in the car with Miguel and Raul both said that Raul also fired shots from the car. Confronted with this, Raul changed his statement. He admitted that he had a gun under the car seat and that he two shots into the air. The 9 mm bullet recovered from Edwin’s body had very weak land and groove impressions, so it could not be directly identified. However, test shots from the gun recovered from Miguel showed distinct land and groove impressions, but the test shots form Raul’s gun did not. It was concluded from these tests that it could not have been the shots from Miguel’s gun that killed Edwin. Raul was charged with murder. At trial, the jury was instructed to consider both the murder charge and the lesser-included offense of deadly conduct. Raul was convicted on the deadly conduct charge and sentenced to seven years in prison. On appeal, Raul claims that the jury instruction on deadly conduct did not meet the two-pronged test established by Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993), which requires the state to show 1. that deadly conduct is included within the proof necessary to commit murder, and 2. that there is some evidence that, if guilty, the defendant is guilty only of deadly conduct. HOLDING:Affirmed. The court first considers whether Raul’s argument is even property presented to this court. The court notices that the wording of the trial court’s charge is not contained in the record. It does not show, either, whether the instruction was requested by the state, the defendant, or whether the trial court issued it sua sponte. If Raul requested the charge, there is no error; he has failed to develop a record demonstrating the error being complained of on appeal. The court acknowledges the Court of Criminal Appeals ruling in Rowell v. State, 66 S.W.3d 279 (Tex.Crim.App. 2001), which said that “the appellant once bore the burden of presenting a record that demonstrated error, but the rule that so burdened him was revised in 1997. . . . [C]urrent Rules do not assign a burden to either party, so the appellant could not have failed to satisfy it.” The court says that despite “this sweeping pronouncement,” it does not believe the high court intended as drastic a change as the literal language of its holding suggests. Under the old Texas Rule of Appellate Procedure 50(d), the party seeking review had the burden to develop a record demonstrating error and to deliver that record to the appellate court. The new rule under T.R.App.P. 35.3(c) says that both trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. However, the court finds it is “inconceivable” that the appellant has also been relieved of his burden of developing a sufficient record in the trial court to demonstrate reversible error on appeal. None of the other rules on presentation of error, perfecting a bill of exception or appealing an offer of proof would be necessary if an appellant could obtain a reversal by making hypothetical assertions that error, not affirmatively reflected in the record, might have been committed in the court below. “Accordingly, we hold the repeal of the former rules of appellate procedure does not absolve appellant of his burden of presenting a record to show error requiring reversal insofar as he is required to develop the record to show the nature and source of an error and, in some cases, its prejudice to him. Here, appellant has failed to present us with a record reflecting which party requested the instruction at issue. Because it is possible that appellant requested the instruction, no error is presented. When a defendant requests a charge, and the court submits it, he can not complain of that charge on appeal.” Raul cannot save his appeal through an allegation of egregious harm, either. He did not object to the less-included offense charge; in fact, he approved it. Furthermore, because the circumstantial evidence strongly suggests that Raul fired the fatal bullet, the inclusion of the deadly conduct instruction was actually beneficial to Raul. Nonetheless, even considering the argument on its merits, the court finds it lacking. Referring to the Rousseau test, the court finds that the first prong is jurisdictional, that is, a trial court doesn’t have authority to convict a defendant for anything except the charged offense or a lesser-included offense of the crime charged. An offense is a lesser-included offense if: 1. it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; 2. it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; 3. it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or 4. it consists of an attempt to commit the offense charged or an otherwise included offense. The second prong of the Rousseau test demonstrates the existence or non-existence of prejudice if a request for a lesser-included offense charge is denied. This burden is met by showing that some evidence was presented that if guilty, the defendant was guilty only of the lesser-included offense. Unless such evidence was presented, the jury could not rationally find the defendant guilty of the lesser-included offense, and there is no harm stemming from exclusion of the charge. Raul contends deadly conduct can never be a lesser-included offense of murder because it is not included within the proof necessary to establish murder. Indeed, this court so held in Moreno v. State, 38 S.W.3d 774 (Tex.App.–Houston [14th Dist.] 2001, no pet.). In Moreno, the court held that deadly conduct is committed by acts “that fall short of harming another.” Accordingly, “if injury actually occurs from appellant’s deliberate conduct,” then the act constitutes more than deadly conduct. “Of course, this is precisely why deadly conduct is a lesser included offense of murder, i.e., because �it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission.’” The court continues, “In addition to being poorly reasoned, as a plurality opinion, Moreno’s precedential value is uncertain” in light of another ruling two weeks later, Ford v. State, 38 S.W.3d 836 (Tex.App.–Houston [14th Dist.] 2001, pet. ref’d). In Ford the court held that deadly conduct was a lesser-included offense of aggravated assault even though the victim was serious injured when he was stabbed or cut by a knife-wielding defendant. To prove Raul committed murder, the state was required to prove he either: 1. intentionally or knowingly 2. caused the death 3. of Edwin Ramos 4. by shooting him with a firearm, or that he 1. intended to cause serious bodily injury to Edwin Ramos and 2. intentionally or knowingly committed an act clearly dangerous to human life 3. that caused the death of Edwin Ramos 4. namely, shooting him with a firearm. On the other hand, to prove the elements of deadly conduct, the state had to prove Raul 1. knowingly 2. discharged a firearm 3. at or in the direction of 4. one or more individuals. As a firearm is a deadly weapon per se, shooting a firearm at or in the direction of another person can only be characterized as an act that is clearly dangerous to human life. “Accordingly, deadly conduct is distinguished from murder under the facts of this case only by relieving the State of proving 1. an intentional act and 2. the death of an individual. Under the facts and pleadings presented here, deadly conduct satisfies the first prong of Rousseau in that it was included in the proof necessary to establish the offense of murder.” The second prong is satisfied because a rational jury could conclude that Raul did not intend to commit serious bodily injury, by firing into the air, but due to his poor aim or the falling trajectory of a bullet fired a block or more away, the victim was nevertheless fatally injured. The court then turns to a secondary issue raised by Raul. The court rules it was not an improper comment on Raul’s choice not to testify when the prosecution said during closing arguments that there were only two guns in the car the night of the shooting, and if there had been another, the jury would have heard about it from Raul. When examined in context, that the prosecutor’s argument was in reference to statements made by Raul that had already been introduced into evidence. OPINION:Hudson, J.; en banc.

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