James Marcus Neves v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JAMES MARCUS NEVES, §
No. 08-24-00097-CR
Appellant, §
Appeal from the
v. §
390th District Court
THE STATE OF TEXAS, §
of Travis County, Texas
Appellee. §
(TC# D-1-DC-21-206017)

MEMORANDUM OPINION

A jury convicted Appellant James Marcus Neves of murder. In two issues, he argues the

trial court abused its discretion in several evidentiary rulings and in failing to submit a jury charge

on the lesser-included offense of manslaughter. In a third issue, he argues that—even if those trial

errors are individually harmless—the cumulative effect of the errors casts a shadow upon the

integrity of the verdict, entitling him to a new trial. For the reasons below, we affirm. 1

1
This appeal was transferred to this Court from the Third Court of Appeals in Austin pursuant to a Texas Supreme
Court docket equalization order. Accordingly, we apply the Third Court of Appeals’ precedent to the extent it conflicts
with our own. See Tex. R. App. P. 41.3.
I. BACKGROUND
On the evening of October 26, 2021, Vanessa Neves was shot and killed by her husband,

James Marcus Neves. 2 Either a bullet to the back of her head or to her torso delivered the fatal

shot. The fact that Neves fired a gun at Vanessa was not in dispute. Rather, his intent for doing so

was a principal issue at trial. The jury found Neves guilty of murder under one of two theories: he

intended to cause Vanessa’s death intentionally or knowingly; or he intended to cause serious

bodily injury and committed an act clearly dangerous to human life that caused her death. In the

punishment phase of the trial, the jury declined to find that Neves acted with sudden passion and

assessed a 36-year prison term and a $10,000 fine. As background, we first recount the evidence

relevant to the question of Neves’s culpable mental state, which permeates the evidentiary

challenges and the claimed charge error raised on appeal.

A. The shooting on October 26, 2021

Neves lived with Vanessa and their two children in a two-story home. On the day of the

shooting, their 13-year-old daughter, A.N., returned home from a school function around 7:00 pm. 3

Her father, Neves, was at home with her ten-year-old brother, S.N. Her mother had not yet returned

from a book club meeting. A.N. and S.N. were in their upstairs bedrooms when Neves came up

the stairs and ordered S.N. to go to bed, even though an hour remained before his bedtime. S.N.

protested to his father and A.N. soon joined in the discussion. At that point, Neves mistakenly

accused A.N. of stealing her brother’s folder, though it actually belonged to her, and this too

sparked an argument. A.N. and S.N. first thought Neves feigned his anger, that he merely appeared

2
Because the couple share a surname, we will refer to Vanessa by her first name only and reserve the use of the
surname to Appellant James Marcus Neves.
3
To protect the children’s privacy, we refer to them by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex. R.
App. P. 9.8(b).

2
“goofy,” but their perceptions soon turned and the circumstance became more “real.” They were

soon scared of him. S.N. described Neves as becoming “red-faced” and “acting a little bit . . .

strangely.” A.N. recounted that Neves acted “strange” or “weird,” which she attributed to his being

drunk. She described his demeanor as being “confuddled” and not making sense. When they

laughed at first, mostly because they didn’t know what else to do, Neves “got really mad.” He

continued to say that A.N. had wrongfully taken S.N.’s folder, though the children disagreed. When

A.N. returned to her room, Neves picked up a plastic bag from the floor and started chasing her

and her brother. As he chased, he threatened to strangle A.N. with the bag that he held in his hand

and shook at her as they ran.

A.N. and S.N. ran from room to room. They passed through a shared pass-through

bathroom and locked each of the doors behind them. But Neves picked the locks and kept coming

after them. Neves appeared “manic.” He said things to the children like: “I’m going to hurt you;”

and “I’m going to strangle you.” At one point, A.N. hid in a storage closet of her brother’s room.

She overheard Neves telling S.N. that he would never succeed because of A.N., that she was the

worst sister, and she would ruin his career and life. Suddenly, when Neves left the room and went

back downstairs, the children took the opportunity to escape to the front yard of a neighbor’s house.

From there, A.N. phoned Vanessa and frantically told her what was going on with Neves. Vanessa

said she would return home. When the children saw that Vanessa had returned, they came back to

their residence. Vanessa and Neves were standing out front, with Neves claiming it was all a joke.

Vanessa took the children upstairs calming them down, telling them she would take care of

everything, and giving both of them a “long hug.” Vanessa eventually went back downstairs and

joined Neves.

3
A.N. testified that while she could usually hear yelling from downstairs, she heard none

that night. But soon the children heard loud gunshots and then a scream of pain. They both ran

downstairs and banged on their parents’ bedroom door but it was locked. A.N. was able to get a

view into the room from an outdoor patio window. She saw her mother’s feet laying out on the

floor with Neves standing over her, on his phone. A.N. said Neves had a “calm expression” that

was “chilling.” She described to the jury that: “He was, like—it’s like he didn’t even care. It was—

it looked like was just scrolling his phone on a random Tuesday.”

B. The 911 calls

A.N. then called 911. In her recorded call, she told the operator that Neves was “really

drunk and upset.” At trial, she testified that Neves became a different person when he drank, and

he got drunk a lot. His drinking became more apparent to her during COVID when Neves quit

traveling and stayed at home. Neves was secretive about his drinking, and once threatened A.N.

when she commented on his being drunk. S.N. testified (without objection) that Neves got

intoxicated at least three times a week. Both children testified that Neves became verbally abusive

when drunk. A.N. told the 911 operator that she did not know when Neves had grabbed a gun. She

reported the guns in the home were ordinarily kept in a locked safe in the garage.

A.N. also told the 911 operator that her parents often argued in the past, but the arguments

had never gotten this bad. At trial, she added that they argued about politics and Neves’s drinking.

Both A.N. and S.N. were aware that Vanessa had kicked Neves out of the house two to three times

because of his drinking. The drinking and arguing would wax and wane, as Neves might stop

drinking for several weeks and then start up again.

Neves also called 911 at about the same time, and his recorded call was also played for the

jury. The children can be heard screaming in the background. When the 911 operator asked Neves

4
what happened, he responded: “I was attacked by my wife and I shot her, so I’m guilty anyway.”

The 911 operator repeatedly asked Neves to assess Vanessa’s breathing and the nature of her

wounds. He reported that Vanessa was breathing but she was barely conscious. He said she was

“shot in several parts” including her torso. The operator directed him to get a clean towel to stop

the bleeding; he responded, “my life is over, so whatever.” When asked to identify from which

wound she bled the most, he responded by commenting, “I guess I am a terrible shot,” and by also

saying, “I am the most terrible shot in the world, she’s been hit somewhere,” “maybe her arm.” On

the recording, Neves can be heard telling Vanessa several times to “hang in there.” When the 911

operator asked why this happened, he responded: “I was getting cussed out.” At the end of the 13-

minute recording, he reported that he had started CPR as Vanessa had stopped breathing. By that

time, police officers and other responders arrived on scene and he was directed to step outside the

house.

C. Officers arrive on scene

Officer Albert Arevalo responded to the 911 calls. Vanessa was found lying face up on the

floor of the master bedroom. Arevalo first secured the children and then went to the downstairs

bedroom where other responders were attempting CPR. When EMS arrived, they found that

Vanessa had no pulse, and no respirations. She also had suffered gunshot wounds to her back flank

area, her right arm, and to the back of the head. Captain Irby of the Austin-Travis County EMS,

who also responded to the scene, testified that life-saving measures were ceased based on policies

written by doctors because Vanessa had suffered a penetrating wound to her head and she was

assessed as having a Glasgow Coma Scale of three, no pulse, and no respirations.

5
On the floor of the bedroom, officers found six spent shell casings from a 9mm gun. They

found the gun in a nearby laundry hamper. There was an additional round in the chamber and ten

more in the clip.

Arevalo described that Neves appeared calm, made no frantic or hysterical comments, and

remained compliant while in his presence. Detective Rory Sullivan described Neves as appearing

emotionless at the time.

D. The follow up investigation

At the station, when Neves was informed that Vanessa had died, he appeared visibly upset.

The first words he uttered were “F--- me.” But he otherwise remained stoic at the police station.

A search of the house showed that Neves kept several guns in the house, but they were kept

either in a large gun safe in the garage or a smaller gun safe in the master bedroom. The gun in the

laundry hamper was a Glock. The State elicited testimony that the Glock had three safety

mechanisms to prevent accidental discharge: a trigger safety, a firing pin safety, and a drop safety.

The trigger must be completely engaged to discharge a bullet. The gun is a semiautomatic, meaning

the trigger would need to be completely engaged for each round fired.

The medical examiner found Vanessa suffered four gunshot wounds. The wound to the

back of her head was a tangential shot. But it fractured the skull, causing blood to accumulate near

her occipital lobe. Vanessa also was shot in the left side of her back with the bullet recovered from

her abdomen. That bullet hit a rib, the left lower lobe of her lung, her spleen, stomach, large

intestine, and perforated the aorta and inferior vena cava of her body. Vanessa also was shot in the

right side of her back, with a fragment of that bullet lodging in her femur. The last wound was to

Vanessa’s right arm. Based on the autopsy performed, the medical examiner testified that either

the gunshot to the back of Vanessa’s head or to the left side of her back had caused her death.

6
E. Testimony from friends and a family violence expert

At trial, the State presented testimony from five of Vanessa’s friends who recounted

conversations with Vanessa about her marriage, her intention at several times to get a divorce, and

Neves’s drinking. They also testified to specific interactions between Neves and Vanessa that they

witnessed in the years and months leading up to the shooting. The State further presented an expert

on domestic violence who described the cycles of violence, power, and control, often present in

such relationships. Over Neves’s objection, the expert was asked whether some of the friends’

observations about Neves’ conduct towards Vanessa was consistent with the cycles of violence or

power and control exhibited in such relationships. We recount this testimony, and objections made

to it, more fully below when addressing Neves’s evidentiary challenges.

F. The jury charge and the verdict

The jury charge defined murder as “intentionally or knowingly caus[ing] the death of an

individual” or “intend[ing] to cause serious bodily injury and commit[ing] an act clearly dangerous

to human life that causes the death of an individual.” Under the charge, a person acts intentionally

“with respect to a result of his conduct when it is his conscious objective and desire to cause the

result.” A person acts knowingly “when he is aware that his conduct is reasonably certain to cause

the result.” The charge also instructed the jury that “voluntary intoxication is not a defense to the

commission of crime.” The trial court declined to submit a charge on the lesser included offense

of manslaughter.

The jury found Neves guilty of murder. In the punishment phase, the jury found that Neves

did not act under the immediate influence of a sudden passion arising from an adequate cause. It

assessed a 36-year sentence of confinement and a $10,000 fine.

7
II. EVIDENTIARY ISSUES
Neves’s first issue contends the trial court erred in three evidentiary rulings: (1) by

excluding ten of his exhibits; (2) by admitting Vanessa’s friends’ testimony; and (3) by permitting

a family violence expert to answer hypothetical questions based on the friends’ testimony.

A. Standard of review

We review a trial court’s admission or exclusion of evidence for an abuse of discretion.

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion

if it acts arbitrarily or unreasonably, without reference to any guiding rules or principles.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). When considering a

trial court’s decision to admit or exclude evidence, we will not reverse the trial court’s ruling unless

it falls outside the “zone of reasonable disagreement.” Id. at 391.

For non-constitutional error as is asserted here, we apply Texas Rule of Appellate

Procedure 44.2(b) and disregard the error if it did not affect the defendant’s substantial rights.

Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and

injurious effect or influence on determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997). Conversely, an error does not affect a substantial right if we have “fair

assurance that the error did not influence the jury, or [that it] had but a slight effect.” Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

B. Exclusion of Neves’s exhibits

(1) The exhibits

8
Without a sponsoring witness, Neves moved to admit ten text messages that were

purportedly recovered by the police from his cell phone. 4 Examples of the texts include proffered

Exhibit 13 sent from Vanessa to Neves on February 3, 2019:

The reason you have exhausted long time friends, alcohol.
The reason you have lost jobs, alcohol.
The reason your mother is crushed and your family is disappointed, alcohol.
The reason your daughter and wife are anxious in your company, alcohol.
The reason your son isn’t safe spending the night with you, alcohol.
The reason you can’t make love to your wife, alcohol.
The reason you’re out of shape and depressed, alcohol.
The reason I’m afraid to introduce you to more acquaintances, alcohol.
The reason you’re in a hotel room and not here, alcohol.
My dear. This is excruciatingly simple. I’m in bed with the kids. Please don’t reply.

Another example is proffered Exhibit 33, a text from Vanessa to Neves on June 5, 2021

reading:

Honey, I’m really excited about tomorrow but terrified that you’ll decide that you’re
funnier/more social/better company when drinking. You’re not. 16 years of
experience has proven this. UT games, dinner parties, Halloween, etc. If people
enjoyed you drunk we’d be invited to more parties, but we’re not. I’m begging for
you to allow me to have a party without worrying about it going bust. Please give
me one night with my friends. I want you there, the fun, social, fabulous you. My
parents used to love having people over, as do I, but you’re drinking I can’t
entertain. Please show my friends the real you. They don’t know how awesome you
are.

Another message-chain exchanged four days before the shooting starts with Vanessa

stating: “I am super proud of you and wouldn’t want to go through life with anyone else. My heart

leapt a bit when you waved to me this morning, even after 16 years.” She follows up 10 minutes

later: “Now it’s your turn.” Neves responds: “I have a mtg”[.] Vanessa then texts: “But you love

me” and he replies, “I love you!”

4
Proffered exhibits 10, 13, 16, 17, 30, 32, 33, 34, 42 and 46.

9
When Neves offered these exhibits, the State objected based on hearsay and the lack of a

sponsoring witness, which both parties treat as a failure to authenticate the exhibits. The trial court

denied the admission without a sponsoring witness.

(2) Controlling law

Admissible evidence must be relevant and “[e]vidence has no relevance if it is not

authentically what its proponent claims it to be.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.

App. 2012). Under evidence Rule 901(a), the proponent of evidence must make a threshold

showing of evidence “sufficient to support a finding that the item [in question] is what the

proponent claims it is.” Tex. R. Evid. 901(a). The Court of Criminal Appeals has held that “it is

the jury’s role ultimately to determine whether an item of evidence is indeed what its proponent

claims; the trial court need only make the preliminary determination that the proponent of the item

has supplied facts sufficient to support a reasonable jury determination that the proffered evidence

is authentic.” Fowler v. State, 544 S.W.3d 844, 848–49 (Tex. Crim. App. 2018) (quoting Butler v.

State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015)); Tex. R. Evid 901(a) (“To satisfy the

requirement of authenticating or identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what the proponent claims it is.”).

We review the trial court’s ruling on such a preliminary question for an abuse of discretion.

Tienda, 358 S.W.3d at 638. If the trial court’s ruling that a jury could reasonably find proffered

evidence authentic is at least “within the zone of reasonable disagreement,” a reviewing court

should not interfere. Id.

“Evidence may be authenticated in a number of ways, including by direct testimony from

a witness with personal knowledge, by comparison with other authenticated evidence, or by

circumstantial evidence.” Id. Rule 901 itself provides several examples that are “not a complete

10
list” for how evidence may be authenticated. Tex. R. Evid. 901(b). Authentication of electronic

evidence “will often depend upon the nature of the evidence and the circumstances of the particular

case.” Tienda, 358 S.W.3d at 639. As that Court explained:

Printouts of emails, internet chat room dialogues, and cellular phone text messages
have all been admitted into evidence when found to be sufficiently linked to the
purported author so as to justify submission to the jury for its ultimate determination
of authenticity. Such prima facie authentication has taken various forms. In some
cases, the purported sender actually admitted to authorship, either in whole or in
part, or was seen composing it. In others, the business records of an internet service
provider or a cell phone company have shown that the message originated with the
purported sender's personal computer or cell phone under circumstances in which
it is reasonable to believe that only the purported sender would have had access to
the computer or cell phone. Sometimes the communication has contained
information that only the purported sender could be expected to know. Sometimes
the purported sender has responded to an exchange of electronic communications
in such a way as to indicate circumstantially that he was in fact the author of the
particular communication, the authentication of which is in issue. And sometimes
other circumstances, peculiar to the facts of the particular case, have sufficed to
establish at least a prima facie showing of authentication.
Id. at 639–40 (footnotes omitted).

(3) Application

Neves urged at trial that the texts messages, which were received in discovery from the

State, were authenticated by their appearance, content, and substance, citing Tex. R. Evid.

901(b)(4). Without more discussion, he claimed there is “no question as to their authenticity.” On

appeal he adds the document is self-authenticating under Tex. R. Evid. 902(7) by the inclusion of

a trade inscription. Each document contains a stamp reading “Source Extraction: Advanced

Logical.” And one exhibit contains a page header titled “Extraction Report–Cellebrite Reports”

with the Cellebrite company logo included.

We conclude that the trial court did not abuse its discretion in excluding the exhibits where

nothing more was before the jury—the ultimate arbitrator of authentication—allowing it to decide

11
the exhibits authenticity. Both the lead and second detectives testified in this case. Each could have

been asked about the seizure of Neves’s phone, the downloading of its contents, and the process

for doing so. Or a business record affidavit from Cellebrite could have been obtained to establish

the documents as business records of that company. But by simply offering the exhibits with no

sponsoring witness, or evidence explaining the exhibits, the jury would have nothing to explain

the origin or integrity of the documents.

Each text contains a “From” or “To” line with a telephone number followed by text reading

“ICE Wife Vanessa Neves.” 5 Nothing in the record ties that phone number to Vanessa or explains

the origin of messages that Neves claims she was the author or recipient. We agree with the Austin

Court of Appeals that Rule 901 “does not erect a particularly high hurdle, and that hurdle may be

cleared by circumstantial evidence.” Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin

2012, no pet.) (quoting Peter T. Hoffman, Texas Rules of Evidence Handbook, Article IX at 948

(8th ed. 2008–09)). But here, there was no sponsoring witness or circumstantial evidence in the

record to support authentication, and consequently, the trial court did not abuse its discretion in

excluding the evidence. Or as the Tienda court explained: “That an email on its face purports to

come from a certain person’s email address, that the respondent in an internet chat room dialogue

purports to identify himself, or that a text message emanates from a cell phone number assigned

to the purported author—none of these circumstances, without more, has typically been regarded

as sufficient to support a finding of authenticity.” Tienda, 358 S.W.3d at 641. 6 The first thread of

Neves’s first issue is overruled.

5
Only Exhibit 46 identifies the recipient of the text message, Scott Milner. In that text exchange, Vanessa is attempting
to retain his legal services in February 2019 to obtain a divorce from Neves.
6
We also agree with the State that the claim the document was self-authenticating under Tex. R. Evid. 902(7) was not
made below and cannot now be urged as a reason the trial court abused its discretion. A party must “let the trial judge

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C. Admission of testimony from Vanessa’s friends

(1) The challenged testimony

The trial court allowed the State to elicit testimony of five witnesses—all friends of

Vanessa—who testified to statements that Vanessa made to them, and in some instances to direct

observation of the interactions between Neves and Vanessa. Neves took each witness on voir dire

and objected that the testimony elicited hearsay, violated Texas Rule of Evidence 404(b), and was

unfairly prejudicial under Rule 403.

The trial court excluded some of the proffered testimony, but allowed the witnesses to

testify to the following matters:

(a) Laura Watts

Laura Watts knew Vanessa for ten years and described herself as a best friend. In 2019,

Vanessa told Watts that she was going to get a divorce, and she had met with a divorce attorney.

Watts was also Neves’s and Vanessa’s realtor. In November and December 2020, she helped Neves

and Vanessa downsize their home because they planned to get a divorce. With Watts’ assistance,

they sold their previous home and moved into the condominium where the shooting occurred.

During this process, Watts once met with the couple to discuss offers and noticed that Neves had

been drinking. The discussion became louder and louder, but Watts described: “Vanessa did her

magic and calmed the whole situation down.” Watts later complimented Vanessa on deescalating

the situation, and she responded, “Oh honey, years of practice.” After the couple was living in the

know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at
a time when the judge is in the proper position to do something about it.” Pena v. State, 285 S.W.3d 459, 464
(Tex. Crim. App. 2009) (emphasis supplied). Preserving error is a “systemic requirement,” and if error has not been
preserved, we should not address the merits of that issue. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

13
condo, they both called Watts to ask her to find an apartment nearby for Neves to move into, but

Vanessa called two days later to say they were going to work it out and no longer needed the

apartment.

(b) Lynda Quintana

Lynda Quintana befriended Vanessa in 2013. They spoke to each other every day, texting

each other almost every day. At a birthday party in 2019, Vanessa confided to Quintana that she

could not take Neves’s drinking anymore and that she had talked to a divorce attorney. When

Quintana later asked why she did not go through with the divorce, Vanessa said that she still loved

Neves and missed who he used to be, thinking she could get it back. Quintana and Neves were on

opposite ends of the political spectrum and Quintana felt that Neves tried to pick political

arguments with her, exhibiting a sarcastic and arrogant tone. She also had first hand observations

of Neves at a school charity silent auction, where he was stumbling drunk to the point of

embarrassing Vanessa. Because Quintana’s children often went to Vanessa’s house, she talked to

Vanessa about guns in the house. Vanessa showed her the safe where the guns were locked up. In

2021, Quintana also knew that Vanessa had put together a resume and started back to work, and

did so with the intention of possibly getting out of the marriage.

(c) Jennifer Cook-Mishkin

Jennifer Cook-Mishkin knew both Vanessa and Neves. In April 2021, she went to see

Neves at his condo to review an HOA inspection report on another condo that Cook-Mishkin was

considering buying; Neves had the inspection report through his position on the condo association.

Vanessa was present as Neves and Cook-Mishkin went line-by-line over the report. Cook-Mishkin

could tell that Neves had been drinking. In response to one of Vanessa’s comments about the report,

Neves said “you don’t know what you’re talking about. Like, why are you in here.” Neves’s

14
comments to Vanessa got progressively worse and angrier. She described that, at one point, Neves

told Vanessa “she didn’t know what she was f---king talking about, that she was so f---king stupid.”

(d) Lena Teffer

Lena Teffer met Vanessa through their children’s mutual activities. A month before the

shooting, Vanessa and Neves were at the Teffer’s house for a pool party. At one point, the adult

couples were discussing the logistics of dropping children off at school. When Vanessa made a

comment on that topic, Neves’s demeanor changed dramatically and he began using expletives,

saying that she had never dropped off the children before and she did not know “what you’re effing

talking about.” Even though Teffer thought Neves’s comments were threatening and unnerving,

Vanessa stayed calm. After the party, Teffer realized that Neves had gone to their liquor cabinet

and had “mostly polished off” a bottle of good bourbon that night. She believed that things were

unraveling for the couple before the murder.

(e) Amber Cotton

Amber Cotton knew Vanessa since 2017. She did “safety planning” with

Vanessa, which she described as helping a victim of domestic violence get out of a relationship

safely. Cotton was aware of safety planning from a protective order that she had obtained for

herself and her prior work in law enforcement. As a part of the planning, Cotton provided Vanessa

with a phone number for a shelter and counselor. She also discussed with Vanessa getting weapons

out of the house. Vanessa assured her that the gun in the house was locked up, so she would have

time to run if needed. Vanessa also confided with Cotton that she had not pursued a divorce out of

concern for the children. These conversations started in 2018. At one point, Vanessa told Cotton:

“If I ever go missing, I didn’t leave. You’re looking for my body. I would never leave the children.

15
Please tell the police.” Cotton contacted the Austin Homicide Department the day after the murder

to relate these comments.

(f) The limiting instruction

The jury charge included the following instruction regarding these witnesses:

During the trial, you heard evidence that the defendant may have committed
wrongful acts not charged in the indictment. The State offered this evidence to show
the nature of the relationship between the parties. You are not to consider that
evidence at all unless you find beyond a reasonable doubt that the defendant did in
fact commit the wrongful act. You may consider this evidence only for the limited
purpose I have described. You may not consider this evidence to prove that the
defendant is a bad person and, for this reason, was likely to commit the charged
offense. To consider this evidence for any other purpose would be improper.

(2) Controlling law

Two statutory provisions color the scope of admissible evidence in this case. First, Article

38.36(a) of the Code of Criminal Procedure provides:

In all prosecutions for murder, the state or the defendant shall be permitted to offer
testimony as to all relevant facts and circumstances surrounding the killing and the
previous relationship existing between the accused and the deceased, together with
all relevant facts and circumstances going to show the condition of the mind of the
accused at the time of the offense.
Tex. Code Crim. Proc. Ann. art. 38.36. Similarly, Article 38.371(b) provides:
In the prosecution of an offense described by Subsection (a) [offense committed
against member of defendant’s family or household], subject to the Texas Rules of
Evidence or other applicable law, each party may offer testimony or other evidence
of all relevant facts and circumstances that would assist the trier of fact in
determining whether the actor committed the offense described by Subsection (a),
including testimony or evidence regarding the nature of the relationship between
the actor and the alleged victim.
Tex. Code Crim. Proc. Ann. art. 38.371(b). These provisions must still be harmonized with the

rules of evidence. Id. at art. 38.371(c) (“This article does not permit the presentation of character

evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other

applicable law.”); Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006) (stating that while

16
prior acts of violence between the victim and the accused may illustrate the nature of a relationship

under Article 38.37, they still “must meet the requirements of the Rules of Evidence in order to be

admissible”).

So, we parse Neves’s three objections to these witnesses: hearsay, Rule 404(b), and Rule

403.

(a) Hearsay

Hearsay is a statement made by a declarant outside of the testimony at the current

proceeding that a party offers in evidence to prove the truth of the matter asserted. Tex. R. Evid.

802. Absent an exclusion or exception to the rule, hearsay is not admissible. Id. Two exceptions

are raised here. Under the present-sense impression exception, a court may allow a declarant’s

hearsay statement describing or explaining an event or condition made while or immediately after

the declarant perceived it. Tex. R. Evid. 803(1); Mireles v. State, No. 08-19-00221-CR, 2022 WL

3572859, at *6 (Tex. App.—El Paso Aug. 19, 2022, pet. ref’d) (not designated for publication).

Additionally, Rule 803(3) excepts from hearsay “[a] statement of the declarant’s then-existing state

of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as

mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove

the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”

Tex. R. Evid. 803(3). By example, a victim’s statement three weeks before her murder that she was

afraid of the accused fell within the Rule 803(3) hearsay exception, as did her request to call the

sheriff’s office. Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (en banc).

Neves urges that the statements made by Vanessa to her friends were hearsay to which no

exception applied. We disagree.

17
First, Vanessa’s statements that she intended at one time or another to get a divorce fall

within the Rule 803(3) exception as showing Vanessa’s then existing state of mind (motive, intent,

or plan.). See Martinez v. State, 186 S.W.3d 59, 67 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d.) (concluding that victim’s statement that she was wanted to leave defendant was admissible

under Rule 803(3)); Smith v. State, No. 01-15-01055-CR, 2017 WL 929544, at *2 (Tex. App.—

Houston [14th Dist.] Mar. 9, 2017, pet. ref’d) (mem. op.) (holding the statement that victim

intended to leave accused met exception); Dorsey v. State, 24 S.W.3d 921, 928 (Tex. App.—

Beaumont 2000, no pet.) (testimony that victim said she was thinking of leaving defendant and

wanted the name of a divorce attorney was admissible under Rule 803(3)); Vann v. State, 853

S.W.2d 243, 250 (Tex. App.—Corpus Christi 1993, pet. ref’d) (victim’s statement that he was not

happy in his marriage and wanted to find a way out was admissible as a statement of his emotional

state and intent to act). This application of Rule 803(3) would permit Vanessa’s statement to Watts

that she was going to get a divorce, and she had met with a divorce attorney. Similarly, the

statements to Watts about why the couple was selling their home and downsizing, and then looking

for an apartment for Neves also fit the exception. It would also allow Vanessa’s statements to

Quintana that she could not take Neves’s drinking anymore, that she had talked to a divorce

attorney, and her later statement that she backed out of the divorce. It would also permit Vanessa’s

statement of motive in 2021 to put together a resume and start back to work to possibly get out of

the marriage.

Second, Rule 803(1)—present sense impression—would apply to other statements. For

instance, after Watts complimented Vanessa on her ability to calm Neves down, Vanessa responded

“Oh honey, years of practice.” From the context of the discussion, the trial judge did not abuse his

discretion in finding that the statement was made at or near the time of the event described.

18
Third, some of Vanessa’s statements were not offered for the truth of the matter asserted

and fall outside the hearsay rule. For instance, Vanessa’s statement at the pool party about the

school drop-off as witnessed by Teffer, and her statement about the condo inspection report as

witnessed by Cook-Mishkin, were not offered to prove the truth of those matters. Instead, they

were offered to contextualize Neves’s inappropriate reaction to them. See Magee v. State, No. 14-

23-00396-CR, 2024 WL 3980248, at *9 (Tex. App.—Houston [14th Dist.] Aug. 29, 2024, pet

ref’d) (mem. op.) (“The text messages were admitted into evidence to show appellant’s state of

mind with regard to his reaction to the complainant’s messages.”). Similarly, some of the

complained of statements are tied to conduct which is not hearsay. Quintana was concerned about

guns in Vanessa’s house because her children often went there. Vanessa showed her the safe where

the guns were locked up.

The one statement that does not fall neatly within Rule 803(1) or (3) is Vanessa’s

declaration to Cotton that “If I ever go missing, I didn’t leave. You’re looking for my body. I would

never leave the children. Please tell the police.” That statement is more a prediction of future

events. See Dorsey, 24 S.W.3d at 927–28 (victim’ statement that “she believed that if anything

strange happened to her, like a weird car accident, it meant Dorsey had killed her” was not covered

by Rule 803(3)); Barnum v. State, 7 S.W.3d 782 (Tex. App.—Amarillo 1999, no pet. h.) (deceased’s

statement that she believed her husband might be planning to murder her for life insurance

proceeds was a statement of belief and not admissible under Rule 803(3)). But even if admission

of this one statement was erroneous, an issue we do not reach, its admission would not rise to the

level of reversible error.

Non-constitutional error that does not affect a substantial right is harmless if the court is

“fairly assured that the error did not influence the jury or had but a slight effect[.]” Ray v. State,

19
178 S.W.3d 833, 836 (Tex. Crim. App. 2005). We make this determination by reviewing the entire

record and considering “(1) the character of the alleged error and how it might be considered in

connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the

existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized

the complained of error.” Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).

This was not a case of who shot Vanessa, but of why. Yet, the gist of Vanessa’s statement

was directed to who might cause her to go missing, and not why. Moreover, the other unobjected

to evidence supporting guilt was substantial. On the evening of the murder, Neves had earlier

threatened to strangle his young daughter with a plastic bag. He frightened the children to such a

degree that they ran from him, locking doors behind them, only to have him pick the locks. S.N.

testified Neves had multiple guns in the house but he ordinarily kept them stored in a safe, not left

unsecured. In his 911 call, Neves gave conflicting statements about why the shooting occurred

(first saying he was “attacked,” and later saying he was “cussed out”) but also adding that he was

“guilty” and he was “the most terrible shot in the world.” His demeanor was stoic, calm, and

chilling, as witnessed by his daughter, two detectives at the scene, and one at the police station.

Six rounds were fired from the gun, with two striking Vanessa in the back. The gun would only

fire by affirmatively applying pressure to the trigger, and doing so for each round fired.

Considering the entire record, we are satisfied that the statement to Cotton did not influence the

jury or had but a slight effect.

(b) Rule 404(b)

Generally, extraneous-offense evidence is not admissible at the guilt phase of trial to prove

that a defendant committed the charged offense in conformity with his own bad character. Tex. R.

Evid. 404(b)(1); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). But extraneous-

20
offense evidence may be admissible when it has relevance apart from character conformity. Tex. R.

Evid. 404(b)(2); Devoe, 354 S.W.3d at 469; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009). That is, the State may not offer such evidence for the sole purpose of “showing that

the accused acted in conformity with his bad character and murdered the victim.” Garcia v. State,

201 S.W.3d at 703; Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) (“Rule 404(b)

is a rule of inclusion rather than exclusion—it excludes only evidence that is offered solely for

proving bad character and conduct in conformity with that bad character.”).

So this kind of evidence may be admissible when it is relevant to a “noncharacter

conformity issue of consequence” such as the defendant’s intent or defensive theories. Robbins v.

State, 88 S.W.3d 256, 259 (Tex. Crim. App.2002); see also Tex. R. Evid. 404(b) (evidence may be

admissible to prove, among other things, motive, intent, and absence of mistake or accident).

Another avenue for relevant and admissible extraneous-offense evidence is that which

contextualizes the nature of the relationship between victim and assailant. See, e.g., Fernandez v.

State, 597 S.W.3d 546, 565–66 (Tex. App.—El Paso 2020, pet. ref’d); Gonzalez v. State, 541

S.W.3d 306, 312 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

Neves argues that the friends’ testimony amounted to a showing that he was a mean drunk,

and therefore it was only used to show that he acted in conformity with that bad character on the

night of the shooting. We disagree.

Evidence of Neves’s conduct when intoxicated was probative of his intent, state of mind,

and motive. See Guerrero v. State, No. 14-10-00840-CR, 2011 WL 6808314, at *1 (Tex. App.—

Houston [14th Dist.] Dec. 22, 2011, no pet.) (mem. op.) (holding that evidence of the defendant’s

drinking problem and his verbally abusive comments after drinking alcohol

were “extremely probative to show, among other things, appellant’s intent, state of mind, or motive

21
on the day” he injured a child). 7 It also contextualized Neves’s relationship with Vanessa. The

interaction between Neves and Vanessa that Watts witnessed during the house sale, and the

interaction that Teffer witnessed at the pool party tell a story. When Neves became loud and

aggressive when drunk, Vanessa kept her cool and acted to diffuse the situation. This characteristic

of Vanessa could inform the jury’s assessment of Neves’s motive at the time of the shooting. A

calm, conflict-deescalating Vanessa is the opposite of the picture Neves tried to paint in the 911

call.

Finally, the evidence also fits the picture painted by the State of a marital relationship that

was unraveling. Vanessa had taken steps towards divorce in 2019 but backed away. But Neves’s

drinking, and his conduct while intoxicated continued. In April 2021, Cook-Mishkin witnessed

Neves denigrate Vanessa over her comment about an inspection report. A month before the

shooting, Teffer witnessed a similar, threatening and unnerving public comment at a pool party.

She also believed that things were unraveling before the murder. In 2021, Quintana also knew that

Vanessa had put together a resume and started back to work, doing so with the intention of possibly

ending her marriage. The timeline of these events, coupled with other testimony that abusive

spouses feel most threatened when the abused spouse is about to leave, were all relevant to intent,

the central issue of intent. 8 See Franco v. State, No. 08-18-00040-CR, 2020 WL 3168560, at *8

7
Neves’s counsel raised this issue in opening statement by rhetorically posing the following question: “Did he intend
to kill Vanessa or was it something different?” Similarly, he questioned whether Neves’s alcoholism meant the offense
amounted to murder or asked whether “it [was] a mistake.” Rebuttal of a defensive theory is one of the permissible
uses for which “crimes, wrongs, or other acts” may be admitted under Rule 404(b)(2). Moses v. State, 105 S.W.3d
622, 626 (Tex. Crim. App. 2003); Sandoval v. State, 409 S.W.3d 259, 301 (Tex. App.—Austin 2013, no pet.).
8
The possible outlier prior bad act was Neves raiding the Teffer’s liquor cabinet. Bad as that act might be, it is so far
from the act of murder that even if inadmissible, it would not affect Neves’s substantial rights. See Taylor v. State,
920 S.W.2d 319, 322–23 (Tex. Crim. App. 1996) (explaining that when the extraneous act is not more heinous than
the charged offense, the extraneous act is not likely to cause unfair prejudice).

22
(Tex. App.—El Paso June 15, 2020, n pet.) (not designated for publication) (holding prior acts of

defendant demonstrated his controlling and aggressive behavior that defined the family

relationship and were a permissible, non-character-conformity purpose under Article 38.371).

(3) Rule 403

Finally, Neves challenges the friends’ testimony under Rule 403. In applying that rule, a

court must assess the balance of factors including: (1) the strength of the evidence's probative

value, (2) the potential for the evidence to “impress the jury in some irrational but nevertheless

indelible way,” (3) The amount of time required at trial to develop the evidence, and (4) the

proponent’s need for the evidence. Montgomery, 810 S.W.2d at 389–90; see also Hart v. State,

688 S.W.3d 883, 891 (Tex. Crim. App. 2024) (applying the four Montgomery factors as the test

under Rule 403). “Rule 403 favors admissibility of relevant evidence, and the presumption is that

the relevant evidence will be more probative than prejudicial.” Montgomery, 810 S.W.2d at 389.

(a) The strength of the evidence’s probative value

The first and fourth balancing factors involve the probative value of the evidence and the

proponent’s need for the evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App.

2006). “Probative value” means more than simply relevance. Id. The phrase “refers to the inherent

probative force of an item of evidence—that is, how strongly it serves to make more or less

probable the existence of a fact of consequence to the litigation—coupled with the proponent’s

need for that item of evidence.” Id. If the proponent of the challenged evidence has other

compelling or undisputed evidence to establish the proposition or fact that the challenged evidence

seeks to prove, then the probative value of the extraneous offense evidence weighs far less than it

otherwise might in the probative-versus-prejudicial balance. Id.

23
As we set out above, the State needed the evidence to rebut a defensive theory raised by

Neve’s opening statement and to establish the nature of the relationship between Neves and

Vanessa. 9 The chronology of the couple’s deteriorating relationship offered one strong clue to that

question. While the children’s testimony substantiated Neves’s drinking, his conduct while

intoxicated, and the strained marriage, they did not testify to the accelerating problems the year of

the shooting. They did not witness the incident at the pool party or the confrontation over the condo

report. Neves emphasizes that some of the divorce plans were in 2019, but when viewed as whole,

the testimony established a timeline of increasing marital discord. The State was also entitled to

put on evidence to corroborate the testimony of the children, who were estranged from Neves by

the time of trial. Each of the adult friends established their close relationship with Vanessa and

their observations were highly probative of Vanessa and Neves’s relationship.

(b) Appeal to a decision on an improper basis

The phrase “unfair prejudice” refers to a tendency to suggest a decision on an improper

basis, commonly, though not necessarily, an emotional one. Id. at 641; Inthalangsy v. State, 634

S.W.3d 749, 758 (Tex. Crim. App. 2021). “Evidence might be unfairly prejudicial if, for example,

it arouses the jury’s hostility or sympathy for one side without regard to the logical probative force

of the evidence.” Gigliobianco, 210 S.W.3d at 641. “Unfair prejudice refers to the evidence’s

“tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.”

State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). “If the probative value of the

9
In his opening statement, Neves’s counsel framed the real question of the trial as Neves’s intent at the time of the
shooting. Counsel argued the jury should focus on whether Neves intended to kill Vanessa or whether it was something
different considering there was no evidence of him planning the shooting or writing letters of his intent. Counsel then
suggested to the jury that the incident “was something that was unexplained.”

24
evidence is not substantially outweighed by the risk of unfair prejudice, the court should admit the

evidence.” Inthalangsy v. State, 634 S.W.3d at 758.

The fact that evidence shows a defendant in a negative light is not sufficient to justify its

exclusion on Rule 403 grounds. “Rule 403 does not allow the exclusion of evidence just because

it is prejudicial to the defendant; all evidence that a defendant is guilty is prejudicial in this sense.”

Trevino v. State, No. 08-23-00111-CR, 2024 WL 339117, at *4 (Tex. App.—El Paso Jan. 29, 2024,

no pet.) (mem. op., not designated for publication); see also DeLeon v. State, 77 S.W.3d 300, 315

(Tex. App.—Austin 2001, pet. ref’d) (“Almost all evidence offered by the prosecution will be

prejudicial to the defendant.”). “To fall within the scope of Rule 403, the risk must be of unfair

prejudice.” Trevino, 2024 WL 339117, at *4; see also DeLeon, 77 S.W.3d at 315 (“Only evidence

that is unfairly prejudicial should be excluded.”).

Each of the categories of testimony of which Neves complains—i.e., drinking to excess,

demeaning comments to Vanessa, and aggressively picking political arguments—painted Neves in

a poor light. Yet we are unconvinced they were so unfairly prejudicial as to cause the jury to convict

Neves of murder. None of the conduct is necessarily criminal. It was certainly less prejudicial than

other unobjected to testimony, such as Neves threatening to strangle his daughter, or his demeanor

on the recorded 911 call.

(c) The amount of time devoted to the evidence.

Rule 403 is one of “judicial economy. It excludes otherwise relevant evidence when the

costs of admission outweigh its utility.” Hart, 688 S.W.3d at 891. As a part of that balance, it

considers “confusion of the issues,” meaning a tendency to confuse or distract the jury from the

main issues in the case. Gigliobianco, 210 S.W.3d at 641. “Evidence that consumes an inordinate

amount of time to present or answer, for example, might tend to confuse or distract the jury from

25
the main issues.” Id. “Misleading the jury,” refers to a tendency of an item of evidence to be given

undue weight by the jury on other than emotional grounds. Id. Finally, “undue delay” and “needless

presentation of cumulative evidence,” are “self-explanatory and concern the efficiency of the trial

proceeding rather than the threat of an inaccurate decision.” Id.

Neves contends that the friends’ testimony on Neves’s drinking, combined with evidence

of his conduct when drunk, unfairly highlighted an issue he had not contested at trial, and the

evidence was cumulative of what the children had already testified about during their trial

appearance. He adds that the third, fourth, and fifth friends’ testimony was additionally redundant.

We disagree.

While each of the friends testified outside the presence of the jury as part of the trial court’s

assessment of the Rule 403 balance, all five completed their testimony before the jury in 51 total

pages of the record. 10 The friends all testified to different specific events and we find almost no

overlap in their testimony. Much of the friends’ testimony provided concrete examples of what the

children more generally described. Moreover, each of the friends’ testimony was necessary to put

together the complete chronology that the State relied on, and which the children did not testify

about.

In conclusion, the trial court did not abuse its discretion in finding the probative value of

the evidence is not substantially outweighed by any “unfair prejudice, confusion of the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid 403

D. Admission of the family violence expert

(1) The testimony

10
The balance of the State’s case covers 374 pages of testimony.

26
The State offered Roxana Ortega-Hart, the supervisor for Victims Services with the Austin

Police Department, as an expert on domestic violence issues. 11 She testified without objection to

the cycles of violence, or power and control, in some domestic relationships. She described four

phases in those relationships: a crisis phase, when victim reaches out to law enforcement or make

a report; a honeymoon phase, when a report does not work and the batterer maintains power and

control by making promises that they do not intend to keep (like to stop drinking); a calm phase,

where nothing happens and victim thinks the relationship is going back to where it started; and a

tension-build up phase, where the victim tries to appease abuser as tensions build back to crisis

phase. She testified that the violence could be physical or psychological.

Neves objected under 404(b) when the State asked the expert hypotheticals based on some

of the conduct described by the five friends. For instance, she was asked whether it would be

consistent for someone who experienced domestic violence to try to get a divorce, then choose to

stay in the marriage. Similar hypotheticals were asked about safety planning, the victim getting a

job or separate bank account, the victim being the peacemaker, the abuser yelling at the victim in

front of others (and this tends to increase as the abuser feels more comfortable and the abuse

escalates), and the abuser threatening the children from relationship. The expert did not express

any opinion specifically about Neves. She did testify that alcohol does not cause domestic violence

but can make the abuser more unpredictable. And the most dangerous time for a victim is when

they try and leave because the abuser may lose their power and control.

11
No objection was made to her qualifications, therefor we do not set out her background further.

27
(2) Controlling law

Experts must be qualified, and their opinions reliable and relevant. Tex. R. Evid. 702; Wells

v. State, 611 S.W.3d 396, 426 (Tex. Crim. App. 2020). A party may elicit expert opinions through

hypothetical questions if the hypothetical questions are based on facts in evidence. Id. at 439. “An

expert may give an opinion on facts made known to him at trial through the use of hypothetical

questions, so long as the facts utilized by the hypothetical are admitted into evidence, or are facts

assumed by counsel ‘in accordance with the theory of his case.’” McMillin v. State, No. 03-03-

00488-CR, 2005 WL 121832, at *8 (Tex. App.—Austin Jan. 21, 2005, no pet.) (mem. op., not

designated for publication) (quoting Matson v. State, 819 S.W.2d 839, 853 (Tex. Crim. App.

1991)).

The third thread of Neves’s first issue contends the trial court erred in allowing the

hypothetical questions. We disagree. The only objection made to the testimony was that it violates

Rule 404(b). But the hypotheticals asked did no more than paraphrase the testimony already in the

record about Neves. There was no new Rule 404(b) type evidence raised. As we have already

addressed Neves’s Rule 404(b) objection above, we overrule it here for the same reason.

In sum, we overrule all three subparts of Neves’s first issue.

III. THE JURY CHARGE
In his second issue, Neves argues that the trial court abused its discretion by failing to

instruct the jury on the lesser-included charge of manslaughter because the evidence was sufficient

to have allowed the jury to rationally conclude that Neves acted with recklessness. See Tex. Penal

Code Ann. § 19.04(a) (“ A person commits [manslaughter] if he recklessly causes the death of an

individual.”).

28
A. Standard of review and applicable law

We review a trial court’s refusal to include a requested lesser-included offense for abuse

of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004) (en banc.).

Under the controlling Rousseau/Royster analysis, we apply a two-step test to determine whether a

trial court should have issued a lesser-included offense instruction. Id.; see also Rousseau v. State,

855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993) (en banc); Royster v. State, 622 S.W.2d 442, 446

(Tex. Crim. App. [Panel Op.] 1981). First, we determine whether the offense is a lesser-included

offense of the charged offense. Threadgill, 146 S.W.3d at 666. Next, we determine whether the

record contains some evidence that would permit a rational jury to find that the defendant is guilty

only of the lesser offense. Id. There must be some evidence from which a rational jury could acquit

the defendant of the greater offense while convicting him of the lesser offense, and the evidence

must establish the lesser-included offense as a valid rational alternative to the charged offense. Id.

B. Analysis

(1) Manslaughter is a lesser-included offense of murder

Neves argues, and the State concedes, that manslaughter is a lesser-included offense of

murder. It has the same elements as murder—that is, that the defendant caused a death—but it has

a different mens rea requirement. Manslaughter only requires the State to prove the defendant

acted “recklessly,” rather than “intentionally or knowingly,” thereby making it a lesser-included

offense of murder. See McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006)

(recognizing that the elements of manslaughter and murder are the same with the exception of the

defendant’s mental state); Cavazos v. State, 382 S.W.3d 377, 386 (Tex. Crim. App. 2012)

(recognizing that the difference between murder and manslaughter is “intent versus recklessness”

and that manslaughter is therefore a lesser-included offense of murder).

29
(2) The record does not contain sufficient evidence of Neves’s recklessness to
justify the issuance of an instruction on deadly conduct

Next, we consider whether there is evidence in the record to justify the issuance of the

lesser-included instruction. See Threadgill, 146 S.W.3d at 666. To do so, we examine all the record

to determine whether an instruction on the lesser-included offense is warranted. Cavazos v. State,

382 S.W.3d at 384. When the defendant is charged with an intent-oriented offense, to establish

that he is entitled to an instruction on a lesser-included offense with recklessness as its culpable

mental state, there must be some affirmative evidence that the defendant did not intend to cause

death or serious bodily injury when he assaulted the victim. See id. at 385. And there must be some

evidence that the defendant was aware of but consciously disregarded a substantial and

unjustifiable risk that death or serious bodily injury would result from his conduct. See id. 12

Neves urges that the record supports recklessness based on several factors to include: his

intoxication, his calling of 911, his assisting with life-savings efforts, and that Vanessa’s wound

to the back of her head could be described as a “graze” injury. We disagree.

First, voluntary intoxication is not a defense. Tex. Penal Code Ann. § 8.04(a) (“Voluntary

intoxication does not constitute a defense to the commission of crime.”). Section 8.04

was likely enacted by the Legislature to overturn prior case law that had allowed evidence of

intoxication “to throw light upon the mental status of the offender[.]”). See Taylor v. State, 885

S.W.2d 154, 155 (Tex. Crim. App. 1994) (en banc) (quoting Evers v. State, 20 S.W. 744, 746–47

12
“A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the result.” Tex. Penal Code Ann.
§ 6.03(a). “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result
of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances
exist or the result will occur.” Id. § 6.03(c). “The risk must be of such a nature and degree that its disregard constitutes
a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as
viewed from the actor's standpoint.” Id.

30
(Tex. Crim. App. 1892). Neves cites no authority that allows him to bootstrap his voluntary

intoxication into evidence sufficient to support a lesser-included instruction to a murder charge.

Case law is to the contrary. See Skinner v. State, 956 S.W.2d 532, 536, 543–44 (Tex. Crim. App.

1997) (rejecting the defendant’s argument that his voluntary intoxication supported lesser-included

charge of murder to capital murder).

Nor does Neves’ calling of 911 after the shooting under the record presented here support

a claim of recklessness. In the 911 call, Neves first claimed he shot Vanessa because she “attacked

him,” but he later reported that he was “getting cussed out.” Nothing in the call suggests

recklessness. He claimed in the call that he provided first aid to Vanessa, as directed by the 911

operator. But he can also be heard on the recording stating, “my life is over, so whatever.” A.N.

viewed Neves making the 911 call and described that he had a “calm expression,” “like he didn’t

even care.” Nor does the possibility that one of the four bullet wounds described as a “graze”

suggest recklessness, particularly when two bullets struck Vanessa in the back, one of which would

have been a mortal wound. Added to this tapestry of facts, Neves fired the gun six times, each time

requiring a pull of the trigger. The gun was ordinarily kept secured and would have to have been

retrieved by unlocking a gun safe. The same evening, Neves had chased his daughter with a plastic

bag threatening to strangle her. The children did not hear any argument before the shooting, which

was only a few minutes after Neves and Vanessa retired to their bedroom.

Neves cites no case allowing a lesser included charge on analogous facts. We view the case

closer to Cavazos v. State where the defendant pulled out a firearm in a crowded room and shot

the victim twice, killing him. Cavazos, 382 S.W.3d at 380. Several days later, the defendant told a

witness that he did not intend to shoot the victim. Id. The defendant was charged with and

convicted of murder, and the trial court refused to issue an instruction on the lesser-included

31
offense of manslaughter. Id. The defendant claimed on appeal that there was no evidence that he

intentionally fired the gun at the victim, and that because his conduct constituted mere

recklessness, he was entitled to an instruction on manslaughter. Id. at 385. The Court of Criminal

Appeals held that the defendant was not entitled to an instruction on manslaughter, reasoning that

“[p]ulling out a gun, pointing it at someone, pulling the trigger twice, fleeing the scene (and the

country), and later telling a friend ‘I didn’t mean to shoot anyone’ does not rationally support an

inference that [he] acted recklessly at the moment he fired the shots.” Id. Acknowledging that

while “weak or contradicted” evidence might support the submission, the record must contain

“more than mere speculation—it requires affirmative evidence that both raises the lesser-included

offense and rebuts or negates an element of the greater offense.” Id. Because that kind of evidence

is missing on this record, we conclude the trial court did not abuse its discretion in declining to

charge on manslaughter. We overrule Neves’s second issue.

IV. CUMULATIVE ERROR
Finally, in Issue Three, Neves claims the cumulative effect of the above errors requires

reversal.

Multiple errors may be harmful in their cumulating effect on the defense even if each error

would be harmless standing on its own. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim.

App. 1999) (en banc), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000) (but

also explaining that unless and until multiple errors are found to have been committed, there can

be no cumulative error effect because non-errors cannot in their cumulative effect create harmful

error). The mere existence of multiple errors, however, does not warrant reversal unless they

operate in concert to undermine the fundamental fairness of the proceedings. Estrada v. State, 313

S.W.3d 274, 311 (Tex. Crim. App. 2010); see also Murphy v. State, 112 S.W.3d 592, 607

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(Tex. Crim. App. 2003) (“Because we have found little or no error in the above-alleged points,

there is no harm or not enough harm to accumulate.”).

If the individual claims of error lack merit, then there is no possibility of cumulative error.

Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009); Chamberlain, 998 S.W.2d at 238.

We overrule Issue Three.

V. CONCLUSION
We overrule each of Neves’s three issues. The trial court’s judgment is affirmed.

GINA M. PALAFOX, Justice

May 20, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

(Do Not Publish)

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