Quincy Lamar Henry v. the State of Texas

Opinion filed May 8, 2026

In The

Eleventh Court of Appeals
__________

No. 11-24-00257-CR
__________

QUINCY LAMAR HENRY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause Nos. 16509 & 16544

MEMORANDUM OPINION
The jury convicted Appellant, Quincy Lamar Henry, of capital murder and
aggravated assault with a deadly weapon.1 See TEXAS PENAL CODE ANN.
§ 19.03(a)(7) (West Supp. 2025), § 22.02(a)(2) (West 2026). Because the State

1
Appellant has appealed from each judgment of conviction that were originally docketed in our
court as two separate appeals. Pursuant to our inquiry and following Appellant’s request, our Cause No. 11-
24-00258-CR was consolidated into Cause No. 11-24-00257-CR for purposes of appeal.
waived the death penalty, the trial court assessed Appellant’s punishment at
confinement for life without the possibility of parole for the capital murder
conviction. PENAL § 12.31(a)(2) (West 2019), § 19.03(b). For the aggravated-
assault conviction, the jury assessed his punishment at confinement for forty years.
The trial court sentenced him accordingly and ordered the sentences to be served
concurrently in the Correctional Institutions Division of the Texas Department of
Criminal Justice.
In three issues, Appellant asserts that the evidence is insufficient to support
his conviction for capital murder, that the trial court erred by refusing to instruct the
jury on the lesser-included offenses of manslaughter and non-capital murder, and
that the trial court erred in handling a jury request to read back testimony during
deliberation. We affirm.
I. Factual and Procedural History
On the evening of November 17, 2022, Christopher Warren was outside of his
home, retrieving tools from his vehicle, when he heard gunshots. Shortly after,
Warren saw Appellant walking down the alleyway adjoining his neighbor Richard
Lyons’s apartment. Not wanting to get involved, when Appellant mentioned hearing
something while making his way toward Warren, Warren responded that he believed
his neighbor was “building a closet.” Warren then went inside his home and
retrieved his wife, who was awakened by the sound of gunshots. After they departed
from their residence, Warren’s wife called the police. A video recording captured
on Warren’s home security camera was admitted into evidence at trial. Gunshots
can be heard going off moments before Appellant is seen exiting the alleyway.
Big Spring Police Department officers arrived at Lyons’s residence and found
two deceased men, later identified as Edward Martinez and Don Brooks, in the living
room. The residence was otherwise unoccupied. Officers later learned that an

2
individual suffering from a gunshot wound was being treated at a nearby hospital.
The individual was identified as Crystal Mesler.
At trial, Mesler testified that she had been living at Lyons’s residence in
November 2022. Jarron Vanderbilt and Brooks had also been living there at the
time. Mesler described Lyons as a “very kind, sweet” elderly gentleman who often
opened his home to people. On November 17, 2022, Appellant came over to Lyons’s
home. Mesler testified that when Appellant first arrived, he was agitated and
complaining about a situation involving his uncle’s caretaker. Mesler confirmed that
“everybody [was] using drugs,” including Appellant.
At some unspecified point, Brooks returned to the home, and Martinez came
over. Lyons was not present. Mesler testified that all five individuals congregated
in the living room area. Appellant was in front of the door. Brooks was seated on a
loveseat coloring in his coloring book2 and talking to Martinez, who sat across from
Brooks. Mesler was “doodling” in a book while sitting in a recliner next to the
loveseat, and Vanderbilt was sitting in a chair “tinkering with all this little stuff.”
Appellant and Martinez were mid-conversation when Mesler overheard
Appellant accuse Martinez of telling others that Appellant had been “shooting at kids
. . . the week before.” Mesler said that Appellant then started ranting about “how he
don’t shoot at kids.” Appellant said, “I don’t think this gun will kill you; I’ll kill you
with my bare hands.” Mesler testified that without further provocation, Appellant
intentionally pulled out a gun and shot Martinez, then Brooks, and then Martinez
again before turning his gun on Mesler. Mesler attempted to cover her face and was
shot in the hand, eventually losing her finger. Mesler testified that she begged
Vanderbilt for her life, and Vanderbilt told Appellant to put the gun down. Before

2
In photographs admitted into evidence, gel pens can be seen on the couch along with a pack of gel
pens on the floor near a bullet casing and puddle of blood.

3
Appellant obliged, Appellant instructed Mesler to blame the shooting on “Dominic.”
Mesler went to the hospital after Appellant left the residence.
Mesler testified that she initially told police at the hospital that the murders
had been committed by an individual named Dominic because she was scared
Appellant would “come back and finish it” if she did not lie as instructed. As soon
as Vanderbilt left the room, however, Mesler told police it had been Appellant.
Mesler could not remember what Appellant’s gun looked like but noted that his gun
had a transparent extended clip. On cross-examination, Mesler affirmed that she
was a prostitute but denied working for Vanderbilt. She also retracted her prior
statement to police that she and Appellant had been in the backroom immediately
before the shooting.
Vanderbilt testified that on the evening of November 17, 2022, he, along with
Mesler, and Appellant, had been at Lyons’s house smoking marihuana and
methamphetamine. Then, Brooks and Martinez arrived. Twenty to thirty minutes
after their arrival, Appellant and Martinez began “arguing about some shooting with
some little kids or some s--t.” According to Vanderbilt, Martinez got up and asked
Appellant: “[W]hat you gonna do? What you gonna do about it?” Appellant
immediately pulled out his gun and shot Martinez before turning to Brooks and
shooting him twice. According to Vanderbilt, Mesler then “started coming towards”
Appellant, and Appellant shot her. Vanderbilt testified that he put his hands out in
front of Appellant and said, “You did enough. . . . What [are] you doing? What’s
wrong with you? What’s wrong, man?” Appellant appeared to “snap[] out of it,”
but with the gun still pointed at Mesler, he instructed Vanderbilt and Mesler to say
“some dude, Dominique” had been responsible for the shooting. Like Mesler, when
law enforcement first spoke with Vanderbilt at the hospital, he denied knowing who

4
had committed the shooting and then later named “Dominique,” before ultimately
identifying Appellant as the perpetrator.
On the morning after the shooting, Appellant visited a residence occupied by
Richard Dustin Loftin. Loftin noted that Appellant had been wearing shorts, and
because it was cold outside, Loftin offered Appellant a pair of pants. Appellant
changed and left his shorts at the residence. Upon hearing about the shooting, Loftin
turned Appellant’s shorts over to police. The shorts, as well as items Appellant was
wearing at the time of his arrest on November 18, 2022, were later tested and
confirmed to contain gunshot residue particles consistent with the items having
“been in immediate proximity of a firearm as it’s being discharged,” or having
“come in contact with a surface that had gunshot primer residue particles.”
Meanwhile, at some point within seventy-two hours after the shooting,
Charles William Pool was throwing trash inside a dumpster in an alleyway behind a
church “on 15th and 16th” street 3 and found a gun. Pool later showed the gun to
friends, and Javiel Soliz recognized the gun as belonging to Appellant. Soliz
testified that he took the gun from Pool and handed it over to law enforcement on
November 20, 2022. On cross-examination, defense counsel sought to establish that
Soliz was testifying against Appellant as retribution for Appellant breaking his jaw
over a stolen backpack. Soliz denied the accusation and disputed Appellant’s
version of events.
Brent Hester, a Texas Department of Public Safety (DPS) forensic DNA
analyst, testified regarding the DNA evidence found on the gun and a pair of shoes
belonging to Appellant. Swabs from the grip and the textured areas of the slide of
the gun, a Glock 48, 9-millimeter with “an extended clear-in-color magazine,”
contained a DNA profile interpreted as a mixture of four individuals with Appellant

3
Lyons resided in an apartment on the corner of 16th Street.

5
and Mesler listed as possible contributors. Vanderbilt was excluded as a contributor
to the DNA profile. Darrell Morgan, a DPS firearm and toolmark examiner, testified
that the fired cartridge cases collected from the crime scene were all identified as
having been fired from the recovered weapon. Hester testified that there was a stain
on the left shoe that tested presumptively positive for the presence of blood, which
was interpreted as originating from a single individual, Mesler.
As part of the investigation, Big Spring Police Department Detective Chase
Clanton spoke with Mesler and Vanderbilt, as well as Meagan McBee, the individual
who had dropped Appellant off at Lyons’s residence that evening. McBee testified
that she knew Appellant had been armed, because he had shown her the Smith &
Wesson that he was carrying. On redirect examination, McBee testified that while
she could have been incorrect regarding the firearm brand, she was positive that
Appellant’s gun had a clear magazine clip. Detectives also followed up with a
known individual by the first name of Dominique but they determined that “there
was no signs” he had been involved in the shooting.
On November 21, 2022, Thomas R. Parsons, M.D., a forensic pathologist,
conducted autopsies on Brooks and Martinez. Dr. Parsons noted Brooks had
sustained two gunshot wounds. One bullet entered through his arm, exited, reentered
through his chest through his armpit, and exited again. The other bullet entered
through his back and exited through his chest. Martinez had sustained four gunshot
wounds, with entrances to his neck, the left side of his chest, the left side of his back,
and his left arm. One projectile was recovered from Martinez’s right shoulder.
Dr. Parsons determined the cause of death for both men had been gunshot wounds.
At trial, Appellant testified that although he had no weapon convictions on his
record, law enforcement had previously accused him of being involved in other
shootings. Appellant stated that while McBee had given him a ride that evening, the

6
only weapon in his possession had been a Smith & Wesson that he dropped off at
his uncle’s house before going to Lyons’s after 7:00 or 8:00 p.m. Appellant testified
that he had gone over to Lyons’s house to sell Vanderbilt marihuana, and once there,
Mesler kept “trying to give [him] sexual favors for cash” for Vanderbilt, which
Appellant declined. After “an hour or so,” Vanderbilt started “doing some weird
stuff” and Mesler was “walking back and forth” between the living room and
bedroom. Appellant then heard a loud knock at the door. Appellant testified that
Mesler went to open the door, while he retreated to the bedroom. From there,
Appellant overheard a discussion about drugs and “somebody stealing something
from somebody.” Appellant testified that he heard cussing, followed by a thump, a
scream, and five gunshots. Appellant testified that he walked out into the living
room once he heard the shooter leave, and that Mesler ran up to Appellant, claiming
she had been shot. Appellant said that he “put [his] hands up” and exited the
residence. Appellant conceded that it was him captured on Warren’s home security
recording walking out of the alleyway, but he denied shooting anyone that night.
Appellant further explained that he did not call the police because he was “just
minding [his] business.”
On cross-examination, Appellant was asked why his DNA was found on the
gun. Appellant responded, “I’ve handled a lot of weapons, like AK-47s, 1911s, a
couple -- like, probably three or four Glocks, Caniks.” Appellant explained that the
blood on his shoe likely occurred while trying to leave the residence, and he
attributed gunshot residue on his clothes to having walked through an area where
two people had just been shot. While Appellant admitted to having prior
misdemeanor assault convictions and prior arrests for aggravated assault with a
deadly weapon, Appellant emphasized that he uses his “hands and not weapons” in
disputes.

7
Appellant called three witnesses: Brandee Leann Castillo, Brandy Ann
Martinez (Brandy), and Cesar Rueda. Each testified that Mesler told them that
Appellant did not shoot her. According to the defense witnesses, Mesler did not
volunteer who the shooter was nor did any of them ask. Rueda had a criminal record
and was currently incarcerated. He testified that he knew Mesler but that he had
never met Appellant until they “crossed paths” while in jail. He testified broadly
that Mesler told him that Appellant “wasn’t the one who had, like, pulled the trigger
on anybody.” Brandy also had a criminal history and was incarcerated at the time
of trial. She testified that she was a “long time” friend of Appellant’s and that they
used to date “[a] long time ago.” Brandy stated that Mesler confided that she was
always “infatuated and obsessed with” Appellant, and that Mesler had accused
Appellant of shooting her because he would never “give [her] the time of day.”
Brandy testified that Mesler told her twice that Appellant did not shoot her. Castillo
was also incarcerated at the time of trial, she knew both Appellant and Mesler and
she testified that Mesler stated that Appellant was not the person that shot her, and
that Mesler “got mad because [Castillo] and [Appellant] were writing, and [Mesler]
got all jealous.”
At the close of evidence, the trial court held a charge conference. Appellant
requested an instruction on the lesser-included offenses of murder and manslaughter,
which the trial court denied.
Then, during jury deliberation, the trial court received the following note from
jurors: “We, the jury, are requesting testimony be read back. We need clarification
of [Appellant’s] testimony in regards to his reaction and response to someone
showing up at the residence.” The trial court informed the parties that the court
reporter had searched the record and retrieved the excerpts, which were provided to
both the State and defense counsel for approval. Neither party objected, and defense

8
counsel confirmed that the readback was acceptable to the defense. The jury was
then brought into the courtroom, and the court reporter read aloud the following two
excerpts of testimony:
THE REPORTER: There are two separate excerpts where the
topic in question is addressed. I will now read the first excerpt.
QUESTION: (By [defense counsel]) Then what happened?
ANSWER: Well, just, I was there for, like, an hour or so. So
just back and forth, talking, me just sitting there chilling. I didn’t really
operate out there or go out there that much. They were -- [Vanderbilt]
was doing some weird stuff. [Mesler] was walking back and forth. I
was -- this is a small area, so I was sitting in the chair. I could see out
to the living room area, and we were just talking, just chilling. And
then she came back in there, and we start talking again. That’s when I
heard a bang on the door, like, “Boom, boom, boom.” And I looked
out there, and I said, “Who is that?” She’s like, “I don’t know, let me
check.” So when she walked out, I shut the door because I don’t want
nobody knowing I’m over there. I never been over there before.
QUESTION: And when you say you shut the door, what kind of
door was that?
ANSWER: It’s a sliding door. I believe it has, like, a gold hole
right there, and you can just slide the door and shut it. So when she
went out there and opened the door, I believe I heard [Brooks’s] name.
He was like, “It’s me, [Brooks],” and she let him in. I was like, “Okay.”
And then five minutes later, I believe I heard somebody else come in.
It sounded like two more people. There was a lot of voices. You could
tell there was, like, people talking.
QUESTION: Did you ever go out into that living room area once
--
ANSWER: No, I stayed right there in that room the whole time.
(End of first excerpt.)
THE REPORTER: I will now read the second excerpt.

9
QUESTION: (By [the State]) You also stated that when you
heard a knock on the door, that you hid in the bedroom.
ANSWER: No, I didn’t hide in the bedroom. I was already in
the bedroom.
QUESTION: I’m sorry. You closed the door?
ANSWER: Yeah, I closed the door.
QUESTION: Well, why don’t you want people to know you’re
there?
ANSWER: I don’t like being around people that I don’t hang
with, associate with, or know. I know what kind of area that is, so I
kind of isolate myself. When stuff like that happens, I try to just get
out the way, stay out the way. I don’t like being around people. I got
haters. People gossip and lie and hate on me all the time for no reason.
(End of second excerpt.)
The jury found Appellant guilty as charged in the indictments.
II. Sufficiency of the Evidence
Appellant argues in his third issue, which we address first, that the evidence
is insufficient to support his conviction for capital murder.
We review a challenge to the sufficiency of the evidence, regardless of
whether it is framed as a legal or factual sufficiency challenge, under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Garcia v. State, 667 S.W.3d 756, 761
(Tex. Crim. App. 2023).

10
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including evidence that may have been improperly admitted. Winfrey v.
State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Lee v. State, 676 S.W.3d 912,
915 (Tex. App.—Eastland 2023, no pet.). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007); Garcia, 667
S.W.3d at 762 (“[A] reviewing court does not sit as the thirteenth juror and may not
substitute its judgment for that of the factfinder by reevaluating the weight and
credibility of the evidence.”). “This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Garcia, 667 S.W.3d at 761. Therefore, if the record supports conflicting inferences,
we presume the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Garcia, 667 S.W.3d at 762.
We treat direct and circumstantial evidence equally under this standard.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Ruiz v. State, 631
S.W.3d 841, 851 (Tex. App.—Eastland 2021, pet. ref’d). It is not necessary that the
evidence directly prove the defendant’s guilt; circumstantial evidence is as probative
as direct evidence in establishing a defendant’s guilt, and circumstantial evidence
can alone be sufficient to establish the defendant’s guilt. Carrizales v. State, 414
S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007)); Lee, 676 S.W.3d at 915. Each fact need not point directly
and independently to guilt if the cumulative force of all incriminating circumstances
is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. Because evidence
must be considered cumulatively, we may not use a “divide and conquer” strategy
for evaluating the sufficiency of the evidence. Murray v. State, 457 S.W.3d 446,

11
448 (Tex. Crim. App. 2015). Rather, we must consider the cumulative force of all
the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
Identity is an essential element of any criminal offense. Solis v. State, 726
S.W.3d 394, 403–04 (Tex. Crim. App. 2025); Ruiz, 631 S.W.3d at 850–52. “Identity
may be proven by direct evidence, circumstantial evidence, or by reasonable
inferences from the evidence.” Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim.
App. 2018).
We measure the sufficiency of the evidence by comparing the evidence
produced at trial against “the elements of the offense as defined by the hypothetically
correct jury charge.” Turley v. State, 691 S.W.3d 612, 617 (Tex. Crim. App.
2024); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “The
hypothetically correct jury charge accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.” Turley, 691 S.W.3d at
617 (citing Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019)).
“The law authorized by the indictment consists of the statutory elements of the
offense as modified by the indictment allegations.” Baltimore v. State, 689 S.W.3d
331, 341 (Tex. Crim. App. 2024).
As charged in this case, the State was required to prove beyond a reasonable
doubt that (1) Appellant (2) intentionally or knowingly (3) caused the death of
(4) more than one individual. PENAL §§ 19.02(b)(1), 19.03(a)(7).
Appellant contends that the evidence is insufficient to support his conviction
for capital murder because (1) the State failed to show that he possessed the firearm,
utilized the firearm, or shot Martinez or Brooks; (2) the only “eyewitness” accounts
came from Mesler and Vanderbilt, who admitted to using multiple controlled

12
substances at the time of the shooting and who provided contradictory statements;
(3) he was unfairly targeted by law enforcement; and (4) he lacked a motive to
commit the shooting. In other words, Appellant challenges the element of identity—
i.e., whether a rational trier of fact could have found beyond a reasonable doubt that
he was the person who intentionally or knowingly caused Brooks’s and Martinez’s
deaths. See Bogany v. State, No. 11-24-00068-CR, 2025 WL 1829561, at *2 (Tex.
App.—Eastland July 3, 2025, no pet.) (mem. op., not designated for publication).
Contrary to Appellant’s arguments, we conclude that the evidence adduced at trial
is sufficient to support Appellant’s conviction for capital murder. Mesler’s and
Vanderbilt’s testimony served as direct evidence of Appellant’s identity as the
shooter, as both explicitly identified Appellant as the perpetrator at trial. There was
also evidence of opportunity, insofar as the murders occurred when Appellant was
present in the residence—a fact which Appellant does not dispute and which is
further corroborated by footage of Appellant leaving the area immediately after the
shooting. See Ingerson, 559 S.W.3d at 510 (concluding that the circumstantial
evidence was sufficient to support a conviction for capital murder because the
defendant had the opportunity and means of killing the two victims). Additional
circumstantial evidence included testimony from four witnesses that Appellant
carried a gun with an extended clear or transparent clip magazine, which matched
the description of the recovered gun. Appellant could not be excluded as a
contributor to the DNA profile found on the murder weapon. And gunshot residue
was also found on Appellant’s clothes worn at the time of his arrest and on the shorts
handed over to police by Appellant’s friend.
Appellant denied his involvement in the shooting, provided explanations for
why his DNA was found on the murder weapon—“I’m pretty sure I probably
handled that weapon”—and why gunshot residue was found on his clothes—“it’s a

13
possibility [the blood] could have got [sic] on my shoe”—when he walked out of the
house—and claimed that he was being unfairly targeted by law enforcement.
However, our standard requires that we “defer to the credibility and weight
determinations of the jury because the jury is the sole judge of the witnesses’
credibility and the weight to be given to their testimony.” See Joe v. State, 726
S.W.3d 482, 486 (Tex. Crim. App. 2025). It was within the jury’s providence to
believe all, some, or none of the testimony presented at trial, including that from
Mesler, who described the event and identified Appellant as the shooter. Garcia,
667 S.W.3d at 762.
With respect to Appellant’s contention that there was an absence of evidence
indicating a motive on his part, the State was not required to prove motive to sustain
Appellant’s capital murder conviction. See Vuong v. State, 830 S.W.2d 929, 934
(Tex. Crim. App. 1992) (“[I]t is not required that the State show a motive in order
to sustain a conviction of capital murder.”); DeLeon v. State, 77 S.W.3d 300, 312–
13 (Tex. App.—Austin, 2001 pet. ref’d). Moreover, Mesler’s and Vanderbilt’s
testimony that Appellant engaged in a verbal dispute with one of the victims shortly
before Appellant began shooting impugns Appellant’s claim of an absence of
evidence of motive.
The record reflects that the State presented a range of evidence at trial that,
taken together, supports the jury’s finding that Appellant was the perpetrator of the
offense. We therefore conclude that the evidence, as measured against a
hypothetically correct jury charge and considered in the light most favorable to the
verdict, was sufficient to support Appellant’s conviction for capital murder. See
Turley, 691 S.W.3d at 617. We overrule Appellant’s third issue.

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III. Lesser-Included Offense Instructions
In his first issue, Appellant contends that the trial court erred by refusing his
requested jury instruction on the lesser-included offenses of manslaughter and
murder.
Appellate courts use a two-step analysis to determine if a defendant is entitled
to a charge on a lesser offense. Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim.
App. 2018). “First, we compare the statutory elements of the alleged lesser offense
and the statutory elements and any descriptive averments in the indictment.” Id. at
670–71 (citing Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016)).
Under this first step of the analysis, an offense is a lesser-included offense if it is
within the proof necessary to establish the offense charged. Bullock, 509 S.W.3d at
924.
Under the second step, there must be some evidence in the record establishing
that, if the defendant is guilty, he is guilty only of the lesser offense. Wade v. State,
663 S.W.3d 175, 181 (Tex. Crim. App. 2022). The second prong “is satisfied only
if ‘there is evidence which, if believed, refutes or negates every theory which
elevates the offense from the lesser to the greater.’” Ransier v. State, 670 S.W.3d
646, 650 (Tex. Crim. App. 2023) (quoting Ritcherson, 568 S.W.3d at 671). “In other
words, the evidence must establish that the lesser-included offense provides the jury
with ‘a valid, rational alternative to the charged offense.’” Wade, 663 S.W.3d at 181
(quoting Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007)). “[I]f more
than a scintilla of evidence, from any source, raises the issue that the defendant was
guilty only of the lesser offense, then the defendant is entitled to an instruction on
the lesser offense.” Id.
As a matter of law, manslaughter and murder are lesser-included offenses of
capital murder. See Green v. State, 713 S.W.3d 865, 875 (Tex. Crim. App. 2025)

15
(murder); Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000) (noting
that the Court of Criminal Appeals has recognized manslaughter as a “lesser-
included offense[] of murder, and therefore, of capital murder” (citing Jackson v.
State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999))); Moore v. State, 969 S.W.2d
4, 9–10 (Tex. Crim. App. 1998). As such, the only issue for our consideration is the
second prong—whether there was any evidence presented at trial from which a
rational jury could have found that Appellant is guilty only of the lesser-included
offenses of manslaughter or murder. See Ransier, 670 S.W.3d at 650.
The difference between murder and manslaughter is the culpable mental state,
intent versus recklessness. Cavazos v. State, 382 S.W.3d 384 (Tex. Crim. App.
2012); compare PENAL § 19.04(a) (stating that a person commits manslaughter if he
recklessly causes the death of an individual), with id. § 19.02(b)(1) (providing that a
person commits murder if he intentionally or knowingly causes the death of an
individual). A person commits manslaughter by recklessly causing the death of an
individual, which is acting with a conscious disregard of a substantial and
unjustifiable risk regarding circumstances or results surrounding the conduct.
Cavazos, 382 S.W.3d at 384; see PENAL § 6.03(c) (West 2021), § 19.04(a). For
Appellant to be entitled to the lesser-included-offense charge of manslaughter, there
must be evidence presented that manslaughter was a “valid, rational alternative” to
murder. See Cavazos, 382 S.W.3d at 385 (quoting Hall, 225 S.W.3d at 536).
Meanwhile, as relevant here, Section 19.03(a)(7) provides that a
person commits capital murder if the person commits murder, as defined under
Section 19.02(b)(1) (intentionally or knowingly causing the death of an individual),
and the person intentionally commits the murders of more than one person during
the same criminal transaction. PENAL § 19.03(a)(7). Thus, with respect to the

16
applicability of the lesser included offense of murder, there must be evidence that
Appellant committed only one murder—not two. See id.
Appellant argues that because (1) Mesler and Vanderbilt changed their story
on multiple occasions, and (2) there was evidence that Mesler was a contributor
to the DNA profile mixture on the firearm, this was some evidence that
Appellant “was guilty of shooting only one person at the residence or, in the
alternative, that he shot Martinez as a result of provocation (based on
Vanderbilt’s testimony of an altercation).” We disagree. That Appellant may have
been provoked by Martinez, even if true, is not evidence of a substantial and
unjustifiable risk, of which Appellant was aware but disregarded, in discharging the
gun at each victim, multiple times, resulting in Brooks’s and Martinez’s deaths (i.e.,
manslaughter). See PENAL § 19.04(a); Ritcherson, 568 S.W.3d at 678 (stabbing a
victim multiple times due to alleged provocation is no evidence that appellant did
not intentionally or knowingly act with the intent to kill or cause serious bodily
harm). And Appellant did not testify to shooting anyone—accidentally, with
provocation, or otherwise. There is no reasonable interpretation of the evidence that
would allow a factfinder to infer or rationally find that Appellant acted only
recklessly in the shooting. See Ritcherson, 568 S.W.3d at 677–78.
Nor is it evidence that Appellant was responsible for intentionally or
knowingly causing the shooting death of just Brooks or just Martinez (i.e., murder).
See PENAL § 19.02(b)(1). Appellant further posits that the “jury could also have
rationally inferred that even if [he] meant to shoot Martinez as per the altercation
Vanderbilt described, his shooting of Brooks was not intentional and was accidental
after shooting Martinez.” We examine the record and cannot “pluck[] certain
evidence from the record and examine it in a vacuum.” Ritcherson, at 677–68
(quoting Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000)). Contrary

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to Appellant’s assertion on appeal, both Mesler and Vanderbilt unequivocally
testified that Appellant acted purposefully, not accidentally, when he shot both
Martinez and Brooks. Given the number of shots fired into the victims, neither the
other evidence of Mesler being one of multiple DNA contributors to the DNA profile
on the firearm nor Vanderbilt’s mention of an altercation negates the physical
evidence showing Appellant’s intent to kill both Martinez and Brooks. See
Cardenas, 30 S.W.3d at 393.
The Court of Criminal Appeals is clear: “[T]he mere disbelief of evidence
establishing commission of the greater offense is insufficient by itself to justify
submission of a [lesser included offense] instruction.” Chavez v. State, 666 S.W.3d
772, 777 (Tex. Crim. App. 2023). Appellant’s entire argument presupposes that the
jury disbelieved the State’s evidence and requires the application of inferences
unsupported by evidence at trial. See Green, 713 S.W.3d at 876. Because there was
no evidence that raised the issue of the lesser-included offense of manslaughter or
non-capital murder, the trial court did not err in declining to submit either lesser-
included offense instruction to the jury. See Chavez, 666 S.W.3d at 777 (“[I]f the
defendant presents evidence that he committed no offense at all . . . or if he presents
no evidence . . . , and there is no evidence otherwise raising the issue, a charge on
[a] lesser offense . . . is not required.” (quoting Aguilar v. State, 682 S.W.2d 556,
558 (Tex. Crim. App. 1985))). We overrule Appellant’s first issue.
IV. Article 36.28
In Appellant’s second issue, he argues that the trial court’s “handling of jury
questions during deliberations lacked necessary safeguards for reading back jury
testimony.” See CRIM PROC. art. 36.28 (West 2006).
Article 36.28 of the Code of Criminal Procedure allows evidence to be read
back to the jury “if the jury disagree as to the statement of any witness.” Id.

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Article 36.28 “seeks to balance the concern that the trial court not comment on the
evidence with the need to provide the jury with the means to resolve any factual
disputes it may have.” Balderas v. State, 517 S.W.3d 756, 797 (Tex. Crim. App.
2016). In other words, “[t]he statute provides a precondition for reading back
testimony—a jury dispute (‘if the jury disagree’).” Stredic v. State, 663 S.W.3d 646,
654 (Tex. Crim. App. 2022). However, “Article 36.28 does not require that the jury
use any particular words to express its disagreement,” and “[w]hether a disagreement
exists will depend upon the particular facts of each case.” Balderas, 517 S.W.3d at
798. Only when a trial court has determined that the request is proper under Article
36.28, must it “interpret the communication; decide, in its discretion what sections
of the testimony will best answer the query; and limit the testimony accordingly.”
Id. “Complaints about error in the reading of trial testimony must be preserved by
objection at the time of the reading.” Thomas v. State, 505 S.W.3d 916, 924 (Tex.
Crim. App. 2016).
“An appellate court should not disturb a trial court judge’s decision under
Article 36.28 unless a clear abuse of discretion and harm are shown.” Id. at 923. A
trial court abuses its discretion where it acts without reference to guiding rules or
principles. Moody v. State, 543 S.W.3d 309, 312–13 (Tex. App.—Eastland 2017,
pet. ref’d).
Here, the trial court received a note from the jury requesting clarification of
Appellant’s testimony. The trial court did not, however, further inquire to establish
how a disagreement might be present. Cf. Stredic, 663 S.W.3d at 654. Nevertheless,
with approval from the State and Appellant, the trial court directed the court reporter
to locate and then read several pages of testimony. Appellant now argues that we
should find that preservation of error is not required when, like here, the trial court
fails to engage in further inquiry under Article 36.28 and the defendant fails to

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object. No authority supports such a position. Rather, the caselaw provides that a
defendant must preserve a complaint that the trial court failed to comply with
Article 36.28. Thomas, 505 S.W.3d at 924; Rodriguez v. State, No. 08-16-00118-
CR, 2018 WL 3372637, at *13 (Tex. App.—El Paso July 11, 2018, pet. ref’d) (not
designated for publication) (“A trial court’s failure to follow the correct procedures
under the Code of Criminal Procedure in responding to a jury’s communication is
an easily rectifiable or curable error, and therefore it is incumbent upon the defendant
to come forth with a timely objection to the trial court’s failure to follow those
procedures.”); Perez v. State, No. 11-09-00137-CR, 2010 WL 5023213, at *4 (Tex.
App.—Eastland Dec. 9, 2010, no pet.) (mem. op., not designated for publication)
(concluding appellant failed to make any objection to the reading of testimony and
therefore did not preserve his Article 36.28 complaint on appeal).
Because Appellant failed to lodge a timely objection at trial, instead agreeing
with the trial court’s proposal, his Article 36.28 complaint on appeal was not
preserved for our review. Appellant’s second issue is overruled.
V. This Court’s Ruling
We affirm the judgments of the trial court.

W. BRUCE WILLIAMS
JUSTICE

May 8, 2026
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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