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Click here for the full text of this decision FACTS:A jury found the appellant, Gerald Earl Gilbert, guilty of murder and assessed his punishment at 20 years in prison. The complainant, Christopher Taylor, was the son of appellant’s fiancee, Carol Ann Taylor, who shared a home with appellant. In mid-August, the complainant drove with his son from Ohio to Houston to visit his mother and appellant. During most of his visit, the complainant stayed at a hotel, but on his last night in town, he opted to stay at appellant’s home. On August 18, 2003, the last evening of the complainant’s visit, the complainant arrived at appellant’s home from an evening out at approximately 12:30 a.m. The complainant retired to his bedroom with his son. Shortly thereafter, appellant began arguing with Carol Ann Taylor, who had been in the master bedroom watching television. At some point during the argument, the complainant emerged from his bedroom into the hallway and confronted appellant regarding the argument occurring between appellant and his mother. Appellant then ran into his office and retrieved his handgun. During the ensuing altercation, the complainant was shot and later died from a gunshot wound to his abdomen. HOLDING:Affirmed. The appellant contends that the trial court erred in refusing to submit a charge on the lesser-included offense of manslaughter to the jury The state contends that there is no evidence that would permit a jury rationally to find only that, at the time of the weapon’s discharge, appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that the complainant would die as a result of the conduct. The court agrees. Appellant’s testimony denying his intent to shoot the complainant was presented in the context of his gun’s going off accidentally, that is, involuntarily, due to Carol Ann Taylor’s throwing her body into his arm. Therefore, appellant’s testimony failed to establish that he was reckless in having discharged the gun; instead, his testimony was relevant only to establish the defensive issue of accident that his conduct was involuntary because he was bumped. Appellant did not testify that he voluntarily discharged his gun for example, an effort to shoot near the complainant so as to scare him thereby raising the issue of recklessly shooting the gun in the direction of, but hitting, the complainant. The reason that it was important for appellant to have relied on facts showing recklessness in discharging the gun is that manslaughter is a “result-of-conduct” offense, one in which recklessness must go to the conduct causing the death, i.e., the shooting. The fact that appellant may have recklessly created the circumstances leading up to the complainant’s having been shot fails to raise the issue of manslaughter. Accordingly, we conclude that the trial court did not abuse its discretion in not including an instruction on manslaughter. OPINION:Taft, J.; Taft, Alcala and Higley, JJ.

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