Noe Zavala v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00307-CR
Noe ZAVALA,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court of Bexar County, Texas
Trial Court No. 2000-CR-3135
Honorable Pat Priest, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: August 6, 2003

AFFIRMED

Appellant Noe Zavala was charged with murder. Following a jury trial, Zavala was convicted and sentenced to forty-five years in prison. He now appeals his conviction, citing two issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first issue, Zavala complains the trial court erred in finding his statement to be voluntary and allowing its admission in violation of the Texas Code of Criminal Procedure, the United States Constitution, and the Texas Constitution. See Tex. Code Crim Proc. Ann. 38.22, 38.23 (Vernon 2003); U.S. Const. am. V, VI; Tex. Const. art.1, 10, 19. Zavala, however, has failed to preserve error as to this issue. Constitutional error in the admission of evidence must be preserved by a timely and specific objection, followed by an adverse ruling. Tex. R. App. P. 33.1; Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002); Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988). This rule extends to the admission of statements made by the defendant. See Saldano, 70 S.W.3d at 889. In addition, the affirmative assertion that the defense has no objection to the admission of evidence waives any error even if the defense had previously obtained an adverse ruling on an objection or motion to suppress. See Morguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); DeHoyos v. State, 81 S.W.3d 853, 854 (Tex. App.--San Antonio 2002, no pet.).

Although Zavala filed a pretrial motion to suppress his statement, he failed to obtain an adverse ruling on this motion. In addition, when the statement was offered into evidence by the State at trial, not only did Zavala fail to object, but he affirmatively stated that he had no objection to its admission. Therefore, Zavala has failed to preserve this issue for review. We overrule Zavala's first issue.

2. In his second issue, Zavala claims the trial court erred in failing to include the lesser included offense of manslaughter in his jury charge. In determining whether an accused is entitled to a charge on a lesser included offense, we apply the two-pronged Royster-Aguilar test. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 446-47 (Tex. Crim. App. 1981). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, some evidence must exist in the record which would permit the jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense and not the greater offense. Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997); Rousseau v. State,855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).

Manslaughter (1) is a lesser included offense of murder, meeting the first prong of the test. Tex. P. Code Ann. 19.04 (Vernon 2003); Burnett v. State, 865 S.W.2d 223, 228 (Tex. App.--San Antonio 1993, pet. ref'd). In examining the second prong of the Royster-Aguilar test, we must look at the distinction between murder and manslaughter. The only distinction lies in the culpable mental state accompanying the defendant's homicidal act; murder requires the defendant to have acted knowingly or intentionally, while manslaughter requires a culpable mental state of recklessness. Burnett, 865 S.W.2d at 228-29. In order for a defendant to be entitled to a jury charge on manslaughter, the record must contain "some" evidence that the defendant did not intend the resulting death or know that it was reasonably certain to occur. If this evidence is present, the record must then be examined to see if it indicates whether the defendant was aware of the risk that his conduct could result in the unintentional killing of the deceased. Burnett, 865 S.W.2d at 229.

The evidence in the immediate case shows that Zavala intentionally stabbed the deceased knowing the potential risk involved. Although Zavala repeatedly denied the intent to kill the decedent, a denial of an intent to kill alone does not always raise the lesser included offense of manslaughter in a murder prosecution. Munoz v. State, 932 S.W.2d 242, 245 (Tex. App.--Texarkana 1996, no pet.). Simple recklessness is not raised by the evidence, which, taken as a whole, does not support the rational inference that, when he stabbed the decedent in the heart, Zavala was merely unaware of or consciously disregarding the risk of death his conduct might create. See, e.g. Madrigal v. State, 852 S.W.2d 25, 29-30 (Tex. App.--Austin 1993, no pet.). Because Zavala acted voluntarily and disregarded the known risk, the second prong of the Royster-Aguilar test is not met and the lesser included offense of manslaughter was properly excluded from the jury charge. Accordingly, we overrule Zavala's second issue and affirm the judgment of the trial court.

Paul W. Green, Justice

Do Not Publish

1. The crime of manslaughter was formerly denoted as involuntary manslaughter. See Acts 1993, 73d Leg., ch. 900, Section 1.01, p. 3614, effective September 1, 1994.