Gilbert v. State, 196 S.W.3d 163 (Tex. App. 2005). · Go Syfert
Gilbert v. State, 196 S.W.3d 163 (Tex. App. 2005). Cases Citing This Book View Copy Cite
30 citation events (30 in the last 25 years) across 1 distinct court.
Strongest positive: David Cruz v. the State of Texas (texapp, 2023-12-21)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) David Cruz v. the State of Texas (2×) also: Cited "see"
Tex. App. · 2023 · confidence medium
Gilbert v. State, 196 S.W.3d 163, 166 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
discussed Cited as authority (rule) Leo Martinez v. State
Tex. App. · 2019 · confidence medium
Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App. 1987); see also Arnold v. State, 234 S.W.3d 664, 672 (Tex.App.—Houston [14th Dist.] 2007, no pet.)(“Thus, courts have typically found that a manslaughter instruction was required based on some evidence that the gun discharged accidentally or that the defendant only intended to frighten the complainant.”); Gilbert v. State, 196 S.W.3d 163, 165 (Tex.App.— 6 Houston [1st Dist.] 2005, pet. ref’d)(holding that the defendant had not raised the issue of recklessness in his testimony where he did not state he had fired the gun in an effort t…
discussed Cited as authority (rule) Leo Martinez v. State (2×) also: Cited "see"
Tex. App. · 2018 · confidence medium
See Scepanski v. State, No. 13-11- 00523-CR, 2014 WL 4161453 at *5 (Tex.App.-Corpus Christ Aug. 21, 2014, no pet.)(not designated for publication), citing Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App. 1987)(holding that the exact circumstance under which a manslaughter charge should be given is one in which the defendant claims that he did not intend to shoot the victim and that the gun accidentally discharged during a struggle with the victim); Gilbert v. State, 196 S.W.3d 163, 165 (Tex.Crim.App. 2005)(holding that because manslaughter is a “result-of-conduct” offense, it was importa…
discussed Cited as authority (rule) Lowe, Tammy Morris
Tex. App. · 2015 · confidence medium
Reckless conduct in the manslaughter context means that the person “is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur.” Id. § 6.03(c); Gilbert v. State, 196 S.W.3d 163, 166 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (“manslaughter is a ‘result-of-conduct’ offense”) (citing Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim.
discussed Cited as authority (rule) Tammy Morris Lowe v. State
Tex. App. · 2015 · confidence medium
Reckless conduct in the manslaughter context means that the person “is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur.” Id. § 6.03(c); Gilbert v. State, 196 S.W.3d 163, 166 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (“manslaughter is a ‘result-of-conduct’ offense”) (citing Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim.
cited Cited as authority (rule) Terry Ray McMillan v. State
Tex. App. · 2015 · confidence medium
App. 2003); Gilbert v. State, 196 S.W.3d 163, 166 (Tex. App. – Houston [1st Dist.] 2005, pet. ref‘d).
cited Cited as authority (rule) Roy MacK Miller Jr. v. State
Tex. App. · 2010 · confidence medium
Schroeder, 123 S.W.2d at 400; Gilbert v. State, 196 S.W.3d 163, 166 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (offense is one in which recklessness must go to the conduct causing death).
cited Cited as authority (rule) Roy MacK Miller Jr. v. State
Tex. App. · 2010 · confidence medium
Schroeder , 123 S.W.2d at 400; Gilbert v. State , 196 S.W.3d 163, 166 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (offense is one in which recklessness must go to the conduct causing death).
discussed Cited as authority (rule) Brown v. State (2×)
Tex. App. · 2009 · confidence medium
See Schroeder v. State, 123 S.W.3d 398, 400-01 (Tex. Crim.App.2003); Gilbert v. State, 196 S.W.3d 163, 166 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). [2] Ms. Stone was Justin Slider's life companion and shared a mobile home located in Lonnie Brown's mobile home park at the time of the shooting. [3] We agree with Brown that there was no record evidence that would have permitted the jury to convict only of criminally negligent homicide.
cited Cited as authority (rule) Lonnie Brown v. State
Tex. App. · 2009 · confidence medium
App. 2003); Gilbert v. State , 196 S.W.3d 163, 166 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). 2.
examined Cited as authority (rule) in Re Bison Building Materials, Ltd. (5×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2008 · confidence medium
In re Dallas Peterbilt, Ltd. , 196 S.W.3d at 163. 2.
cited Cited as authority (rule) Theodore Michael Berry v. State
Tex. App. · 2008 · confidence medium
Gilbert v. State , 196 S.W.3d 163, 165 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd).
cited Cited as authority (rule) Theodore Michael Berry v. State
Tex. App. · 2008 · confidence medium
Gilbert v. State, 196 S.W.3d 163, 165 (Tex. App.--Houston [1st Dist.] 2005, pet. ref’d).
cited Cited as authority (rule) Rosendo De Leon v. State
Tex. App. · 2007 · confidence medium
App. 2003); Gilbert v. State , 196 S.W.3d 163, 165 (Tex. App.--Houston [1 st Dist] 2005, pet. ref'd).
cited Cited "see" Cynthia D Willis v. the State of Texas
Tex. App. · 2023 · signal: see · confidence high
See Gilbert v. State, 196 S.W.3d 163, 165 (Tex. App.— Houston [1st Dist.] 2005, pet. ref’d). 18 Johnson, 624 S.W.3d at 585–86.
cited Cited "see" Jose Luis Acosta v. State
Tex. App. · 2015 · signal: see · confidence high
See Gilbert v. State, 196 S.W.3d 163 , 165–66 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
cited Cited "see" Gerald Earl Gilbert v. State
Tex. App. · 2009 · signal: see · confidence high
See Gilbert v. State , 196 S.W.3d 163, 164 (Tex. App.— Houston [1st Dist.] 2005, pet. ref’d).
cited Cited "see" in Re Gerald E. Gilbert
Tex. App. · 2007 · signal: see · confidence high
See Gilbert v. State , 196 S.W. 3d 163 , (Tex. App.—Houston [1st Dist.] 2005, pet ref’d).
cited Cited "see" in Re Gerald E. Gilbert
Tex. App. · 2007 · signal: see · confidence high
See Gilbert v. State , 196 S.W. 3d 163 , (Tex. App.--Houston [1st Dist.] 2005, pet ref'd).
Retrieving the full opinion text from the archive…
Gerald Earl GILBERT, Appellant,
v.
the STATE of Texas, Appellee
01-04-00523-CR.
Court of Appeals of Texas.
Oct 6, 2005.
196 S.W.3d 163
Alex G. Azzo, Houston, for Appellant., Peyton Z. Peebles, III, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for Appellee.
Tim Taft.
Cited by 20 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 78%
Citer courts: S.D. Texas (1)

OPINION

TIM TAFT, Justice.

A jury found appellant, Gerald Earl Gilbert, guilty of murder and assessed his punishment at 20 years in prison. We determine whether the trial court erred in denying appellant’s request for a charge on the lesser-included offense of manslaughter. We affirm.

Background

The complainant, Christopher Taylor, was the son of appellant’s fiancée, 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[*165] 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.

Lesser-included Offense

In his sole issue, appellant contends that the trial court erred in refusing to submit a charge on the lesser-included offense of manslaughter to the jury. To be entitled to a charge on a lesser-included offense, (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App.2002).

Manslaughter is a lesser-included offense of the offense of murder. Moore v. State, 969 S.W.2d 4, 9 (Tex.Crim.App.1998). Manslaughter requires proof that the defendant acted recklessly, that is, that he consciously disregarded a substantial risk of which he was aware. See Tex. Pen.Code AnN. §§ 6.03(e), 19.04(a) (Vernon Supp.2004-2005).

In determining whether there is evidence to support a charge on recklessness, a statement that the defendant did not intend to kill the victim “cannot be plucked out of the record and examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986). However, 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). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App.1992).

Appellant contends that there is evidence to support the charge of manslaughter. Specifically, appellant contends that, during the trial, he denied that he intentionally killed the complainant. Appellant admitted that he retrieved a gun from his office because he wanted to “police his house,” after the complainant had pushed him. Appellant testified that, as he was coming out of his office, the complainant pushed him again and Carol Ann Taylor threw her body into his arm. As a result of Carol Ann Taylor’s push, appellant testified that he fell backwards and tried to brace himself. Appellant testified that, at that point, gun accidentally fired. Appellant testified that he never cocked the gun or raised it to point it at the complainant. Appellant testified that he never intended to hurt or to shoot the complainant and that he was shocked when the gun fired.

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. We agree. 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[*166] 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, ie., the shooting. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App.2003). Therefore, 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.

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.