Opinion
NO. 02-17-00346-CR
05-31-2018
PEDRO FLORES ALEMAN JR. APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1474142D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
After a bench trial, the trial court found appellant Pedro Flores Aleman Jr. guilty of assault on a family or household member with a previous conviction and sentenced him to 15 years' imprisonment. Tex. Penal Code Ann. § 22.01(b)(2)(A) (West Supp. 2017). Contending he acted in self-defense, Aleman argues that the evidence is insufficient to support his conviction. We affirm.
Evidence
At the September 2017 trial, Demi Oca, the complainant, testified that she did not want to pursue charges, did not want to be at the trial, and was there under subpoena.
Oca went on to testify that around December 2015, she and Aleman had started dating. She broke up with Aleman in June 2016, and he did not take the breakup well.
In an unrelated matter in September 2016, Oca called 911 because Aleman broke out the windshield of her friend's car. This turned out to be but the first windshield Aleman broke, and but the first 911 call Oca placed due to Aleman.
A. Aleman's arrest: Oca tells the police that Aleman assaulted her and signs a statement to that effect.
On October 17, 2016, several months after their breakup, Oca made a 911 call around 1:30 a.m. because Aleman, whom she had let into her apartment, had broken her television. Later that same morning, shortly before 11:00 a.m., Oca made another 911 call, this time from her car, because Aleman was frightening her. While Oca was on the phone talking to the 911 operator and notwithstanding that Oca had locked herself inside, Aleman got into her car, took her phone, and threw it against the pavement, breaking it.
Oca testified that when the police arrived, Aleman tried to leave, so she tried to take the keys out of the ignition. Oca spoke with the police and showed them fresh bruises on her neck and arms, and agreed at trial earlier that day Aleman had caused the photographed scratch on her neck and the bruising on her arms.
Oca admitted that her car's windshield had been shattered that morning, but although she purportedly did not see who shattered it, she agreed that Aleman told her later that day that he had done it.
Oca further admitted that she gave the police a statement on October 17, 2016, the day of the incident. In that "Family Violence Victim Statement," Oca wrote that Aleman, her ex-boyfriend, grabbed her arm twice with his hands, caused her pain, and left her with bruises. When asked what events led up to the assault, she responded, "Break up." In the statement portion of the form, she wrote:
Walked outside, Pedro grabbed me, forced me inside. When he was in [the] restroom[,] I finally went to my car and called 911. While I was across the parking lot, he came up and started kicking my door. He then opened my door, reached over[,] and took my phone[; he] then broke it in the midd[l]e of [the] street. I then reached in his car to take his keys out of [the i]gnition [so that] he wouldn't leave soon[. A]s I was reaching over for his keys, [the] cops showed up. When he grabbed me outside my apartment, he left . . . bruises on my arm and caus[ed] swelling.In her statement, Oca indicated that the bruises caused her pain, but at trial she maintained that she did not remember telling the police that.
B. Oca later signs a nonprosecution affidavit in which she says Aleman did not assault her.
Oca admitted that State's Exhibit 23 was her nonprosecution affidavit, which she signed on March 12, 2017. In that affidavit, Oca wrote:
On the 17th day of October 2016, my boyfriend Pedro Aleman and I got into an argu[]ment, [and] the cops were called. Pedro wanted to leave. I got upset. Pedro Aleman never grabbed or hit me. He never got physical with me.Oca admitted that she signed that affidavit of nonprosecution at Aleman's relatives' house. C. Still later, at trial, Oca testifies that she hit Aleman and that Aleman injured her while trying to restrain her.
I never wanted Pedro arrested. I was made to feel, by the officer, that if I didn't press charges, CPS would then be involved.
Oca's daughter—who was about four years old at the time—was in the car with her during Aleman's attack.
On cross-examination by defense counsel, Oca stated that she hit Aleman, that Aleman never hit her, and that all Aleman did was try to stop her from hitting him. She "suppose[d]" that Aleman was defending himself. She testified that her bruises were caused by Aleman's efforts to hold her back. On redirect, Oca admitted that she did not mention in her October 2016 statement that she hit Aleman. She also admitted that her nonprosecution affidavit similarly did not mention that she hit Aleman.
She acknowledged that she had visited Aleman in jail the day before trial, that she had never before asserted that she hit him, and that at trial was the first time she had ever made that assertion. D. Officer O'Dell, the responding officer, saw that Aleman was angry and that Oca was frightened; he testified that Oca described Aleman's assaulting her and that she wanted a restraining order against him.
Officer Jesse O'Dell testified that on October 17, 2016, around 10:53 a.m., he went to an apartment complex regarding a family disturbance, where he saw Aleman and Oca struggling inside a car. He described Aleman as very agitated and yelling and Oca as scared, nervous, and upset.
According to Officer O'Dell, Oca told him that she had been trying to get a restraining order against Aleman for the past three months but had been unsuccessful because Aleman did not have an address. She also said that her bruises were from "this morning" and that Aleman caused them. She said nothing about hitting Aleman or about Aleman's having to hold her back. Oca told Officer O'Dell that she had left her apartment to start her car when she ran into Aleman on the stairs outside her apartment. Aleman then started pushing and grabbing her with both his hands, pushed her back up the stairs, and told her to go back in the apartment. Oca said that she waited for Aleman to go to the bathroom and then left and called 911. Oca told Officer O'Dell that when Aleman grabbed her earlier that morning, it hurt, and she felt pain. Officer O'Dell testified that he saw bruises on her upper-left neck, upper arm, right wrist, and the inside of her right arm, which he said was consistent with being grabbed and pushed. The factfinder saw photographs of Oca taken that day and showing her injuries, as well as photographs of Oca's broken phone, broken rear windshield, and cracked front windshield.
Officer O'Dell stated that he gave Oca the "Family Violence Victim Statement" form—State's Exhibit 24—to fill out. On that form, Oca requested a protective order. Oca told Officer O'Dell that she feared for her and her daughter's safety because Aleman was jealous and would not stop coming to the apartment. Also on the family-violence victim statement, Oca specifically denied striking or pushing Aleman.
For Aleman's part, Officer O'Dell testified that Aleman indicated that it was just an argument and that nothing physical occurred; Aleman never said that his ex-girlfriend had hit him or that he had acted in his own self-defense to control Oca. Aleman did not complain of any injuries.
Officer O'Dell denied ever mentioning CPS to Oca or calling CPS.
In the 24 years that Officer O'Dell had been a police officer, he had reported domestic-violence incidents before, and he was aware of instances when victims later attempted to drop the charges.
Aleman's contention
In his single point, Aleman asserts that the evidence is insufficient to support his conviction. More specifically, he asserts that "[t]he State presented no evidence that [he] ever hit Oca or caused her bruising in any manner other than in self-defense by holding her to protect himself and stop her from hitting him. Thus, the evidence established self-defense."
Standard of review
A defendant has the initial burden of producing some evidence to support a self-defense claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)). Once evidence is produced, the burden shifts to the State to disprove the defense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. This burden of persuasion does not require the State to produce evidence to refute the self-defense claim; the burden requires only that the State prove its case beyond a reasonable doubt. Id. Thus, self-defense is not an affirmative defense that the defendant must prove by a preponderance of the evidence but is instead a defense that the State must overcome when proving the offense's elements beyond a reasonable doubt. See Tex. Penal Code Ann. §§ 2.03 ("defenses to prosecution"), 2.04 ("affirmative defenses to prosecution"), 9.02 ("It is a defense to prosecution that the conduct in question is justified under this chapter"), 9.31 (providing requisites for self-defense) (West 2011).
Where, as here, the factfinder rejects a claim of self-defense, we must consider all the evidence in the light most favorable to the judgment and determine whether, based on that evidence and its reasonable inferences, a rational factfinder could have found beyond a reasonable doubt the offense's essential elements and against the appellant with regard to self-defense. Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (citing Saxton, 804 S.W.2d at 914). A guilty finding implicitly rejects a self-defense claim. Saxton, 804 S.W.2d at 914.
Self-defense is a fact issue that the factfinder may accept or reject, even if the evidence is uncontroverted. Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App.), cert. denied, 513 U.S. 1060 (1994); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). As noted, although the State bears the burden of persuasion to disprove the self-defense issue, the State need not affirmatively present evidence specifically refuting the defendant's self-defense evidence. Saxton, 804 S.W.2d at 913-14; see Medina v. State, 411 S.W.3d 15, 21 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (stating that the "jury is free to reject the defensive evidence," citing Saxton, 804 S.W.2d at 913-14); Denman v. State, 193 S.W.3d 129, 132-33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (stating that a jury is not required to accept a defendant's self-defense claim); Mora v. State, No. 07-15-00279-CR, 2017 WL 3122364, at *1-2 (Tex. App.—Amarillo July 20, 2017, pet. ref'd) (mem. op., not designated for publication).
Discussion
The evidence suggests only three possible scenarios: (1) Aleman assaulted Oca and bruised her in the process; (2) Aleman did not assault Oca, their dispute was only verbal, and Oca received her bruises that morning for reasons neither she nor Aleman explained; or (3) Oca assaulted Aleman, and he bruised Oca while trying to restrain her.
Oca's last 911 call showed that Aleman terrified her and that she was focused on avoiding physically confronting him. The violence inflicted on Oca's car windows—which she conceded Aleman owned up to later that day—shows that Aleman was a determined, violent, and physical aggressor. Most tellingly, at the scene neither Oca nor Aleman asserted or even hinted that Oca was the aggressor, and Oca admitted that she had never claimed to have been the aggressor until the time of trial and only one day after visiting Aleman in jail. Even her intervening nonprosecution affidavit contained nothing suggesting that Oca was the aggressor and that Aleman was simply protecting himself from her.
Viewing the evidence in the light most favorable to the judgment, a rational trier of fact—believing Oca's contemporaneous statements to Officer O'Dell and her initial victim statement, and disbelieving her later attempts to exonerate Aleman—could have found beyond a reasonable doubt that Aleman assaulted Oca, his ex-girlfriend. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding that factfinder is entitled to disbelieve recantation). We hold that the evidence is sufficient and overrule Aleman's point. See Mora, 2017 WL 3122364, at *1-2.
Conclusion
Having overruled Aleman's sole point, we affirm the trial court's judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: WALKER, KERR, and BIRDWELL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 31, 2018