No. 05-08-00637-CR
Opinion Filed April 6, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F07-21863-Y.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice O'NEILL.
A jury convicted appellant Manuel Sergio Barron of aggravated assault with a firearm and sentenced him to eighteen years' confinement and a $10,000 fine. In seven issues, he raises complaints regarding the sufficiency of the evidence, whether he was entitled to a jury instruction on self-defense, whether the trial court interfered with his right to testify, and whether the trial court erred in excluding certain testimony. We affirm the trial court's judgment.
Background
On June 17, 2007 complainant Benjamin Robledo went to visit his sister in an apartment complex in Farmers Branch. While visiting, complainant's seven-year-old niece, Jennifer Sanchez asked him to take her to a nearby park. When they walked outside, complainant saw appellant and another passenger driving up in appellant's truck. Appellant called complainant "piporo," which means "like a small animal" in Spanish. Appellant used to call complainant by that name when they were growing up in Mexico. Appellant again yelled, "f — ing piporo, get over here!" Complainant told appellant his family would never be friends with him and told appellant to leave. Appellant said, "that's all I want to hear." Appellant then shot complainant once in the side without any provocation or threat. Complainant spent two weeks in the hospital recovering from his injuries. Jennifer Sanchez and Juan Carlos Barron Sanchez witnessed the shooting. They both testified complainant did not threaten appellant in any way. Juan further testified appellant appeared upset when he drove to the apartment and approached complainant. He said appellant repeatedly asked complainant to get a beer with him, but complainant refused. Juan admitted there was a history of violence between the two families, and he did not like appellant because of previous problems in Mexico. Luis Robledo Martinez testified he knew appellant from Mexico, but had not seen him in twenty years until he ran into him on June 17, 2007. At that time, Luis was leaving the apartment complex when appellant drove up and said hello. He said appellant's demeanor seemed "good," but appellant told him he was going to hurt someone. Appellant never said who he was going to hurt, but after Luis heard about the shooting, he determined the threat was toward complainant. The jury also heard testimony that June 17, 2007 was not the first alleged incident between appellant and complainant. About a month before the shooting, complainant testified he talked to appellant at the apartment complex. He asked appellant why he was following him around, and complainant thought appellant was looking to fight. Complainant told appellant not to believe any gossip, and he was not going to do anything to hurt appellant. Appellant told complainant if he intended to hurt him, he better kill him. Otherwise, appellant would come after him. Complainant also testified about another incident that occurred four months before the shooting in which appellant drove by and gave him a "bad look" and then quickly left. Although complainant admitted he followed appellant, complainant never threatened or physically engaged appellant. A jury convicted appellant of aggravated assault with a firearm and sentenced him to eighteen years' confinement and a $10,000 fine. This appeal followed. Self-Defense
In his first issue, appellant argues the jury should have received a self-defense instruction based on the families' history of violence, and the jury could have reasonably believed, based on the history of violence, that complainant was the aggressor. The State responds the trial court properly denied the requested self-defense instruction under Texas Penal Code section 9.31(b)(5)(A). We agree with the State. When determining whether there is reversible error due to an erroneous jury charge, we first decide whether error exists, then we determine whether appellant was harmed. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Elmore v. State, 257 S.W.3d 257, 258 (Tex. App.-Houston [1st Dist.] 2008, no pet.). A defendant is entitled to an instruction on every defensive issue raised by the evidence. Elmore, 257 S.W.3d at 259. In raising the justification of self-defense, the defendant bears the burden of production of some evidence that he reasonably believed use of deadly force was immediately necessary to protect himself against the victim's use or attempted use of unlawful force. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Under section 9.31, "a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (Vernon 2003). However, the statute also expressly provides the use of force is not justified under certain proscribed circumstances. For example, the use of force against another is not justified if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was carrying a weapon in violation of section 46.02. Id. § 9.31(b)(5)(A). Former section 46.02 stated a person committed an offense if he intentionally, knowingly, or recklessly carried on or about his person a handgun, illegal knife, or club. Act of Sept. 1, 1997, 75th Leg., R.S., ch. 1261, § 24, sec. 46.02(a), 1997 Tex. Gen. Laws 4766, 4776 (amended 2007) (current version at Tex. Penal Code Ann. § 46.02(a) (Vernon Supp. 2009)). Ordinarily, whether the defendant carried a gun to a discussion is a fact issue and included in the jury's charge as a limitation to self-defense. Elmore, 257 S.W.3d at 259. However, when the evidence establishes as a matter of law that force is not justified, then no self-defense issue is required. Id.; see Williams v. State, 35 S.W.3d 783, 785-86 (Tex. App.-Beaumont 2001, pet. ref'd). Here, the evidence showed a history of tension between the two families and that appellant had been harassing complainant before the shooting. Approximately four months prior to the incident, appellant drove by and gave complainant a dirty look and then peeled away from the parking lot. Then, a month before the incident, appellant was driving around the apartment complex and appeared to be looking for a fight. It is uncontroverted that on the day in question appellant drove to complainant's sister's apartment complex, interrupted family time, and harassed him with profanities. Complainant told appellant they would never be friends and to leave. Appellant said "that's all I want to hear," and then pulled out a gun and shot him. Thus, appellant clearly sought a discussion with complainant concerning their differences while he was carrying a gun. See Tex. Penal Code Ann. § 9.31(b)(5)(A). We must now determine whether appellant carried the gun on or about his person in violation of section 46.02. Appellant did not offer any evidence showing he carried the hand gun legally. See Zuliani, 97 S.W.3d at 594 (defendant bears the burden of production of some evidence). Under the applicable law, it was not unlawful to carry a handgun if a person was traveling or was carrying a concealed handgun with a valid license. See Acts 1997, 75th Leg., R.S., ch. 1221, § 4, 1997 Tex. Gen. Laws 4684, 4685-86, amended and reenacted by Acts 2007, 80th Leg., R.S., ch. 693, §§ 2, 3, 2007 Tex. Gen. Laws 1318, 1318-19 (current version at Tex. Penal Code Ann. § 46.15(b)(2), (6) (Vernon Supp. 2009)). There was no evidence presented at trial to establish that appellant qualified for the traveling exception or that he held a license to carry the handgun used in the shooting. See, e.g., In re A.G., 292 S.W.3d 755, 759 (Tex. App.-Eastland 2009, no pet.) (defendant must produce some evidence to support traveling exception). Thus, the evidence established as a matter of law that appellant sought an explanation or discussion with complainant about their differences while illegally carrying a handgun. As such, there was no fact issue raised regarding section 9.31(b)(5)(A). As a matter of law, appellant was not justified in using force. Thus, the trial court did not err in refusing to instruct the jury on the issue of self-defense. Appellant's first issue is overruled. To the extent appellant contends the trial court improperly considered his illegal immigrant status, we need not consider it. The record shows that although the court made reference to 18 U.S.C. § 922(g)(5), which prohibits an illegal alien from possessing a firearm, the court also specifically noted appellant violated section 46.02 and relied on case law holding that "if a defendant confronts a victim while unlawfully carrying a weapon or in response to a verbal provocation, the instruction is not to be allowed." The court further stated it was unnecessary to take judicial notice of the federal statute because "it appears to be unlawful to carry a weapon under Article 46.02 of the Code." Thus, the record supports the trial court's ruling under the penal code, and we need not consider whether it improperly considered appellant's illegal immigrant status. Factual Sufficiency of Self-Defense Claim
In his seventh issue, appellant argues the evidence is factually insufficient to disprove self-defense. A defendant has the burden of producing sufficient evidence at trial to raise the issue of self-defense and because it is a justification defense, a defendant is essentially required to admit committing the conduct giving rise to the indictment. See Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd); Withers v. State, 994 S.W.2d 742, 744 (Tex. App.-Corpus Christi 1999, pet. ref'd). Here, appellant pleaded not guilty to the offense and failed to provide any evidence that his conduct was justified. Further, the record established as a matter of law that a self-defense instruction was barred. Thus, appellant did not carry his burden of raising the issue, and the State was not required to disprove the theory. In re A.G., 292 S.W.2d at 759 (once defendant produces some evidence that supports the defense, the State bears burden of persuasion to disprove it). As such, his factual sufficiency claim is without merit. Appellant's seventh issue is overruled. Right to Testify
In his third issue, appellant claims the trial court incorrectly admonished him that there was no basis for a self-defense instruction even if he testified he acted in self-defense thereby coercing him to waive his right to testify. A defendant has a right to testify at his own trial, and such a right is fundamental and personal to the defendant. Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005); Agosto v. State, 288 S.W.3d 113, 116 (Tex. App.-Houston [1st Dist.] 2009, no pet.). In Johnson, the Texas Court of Criminal Appeals held, in agreement with the majority of jurisdictions, that a trial court has no duty to inform a defendant represented by counsel of his right to testify. Johnson, 169 S.W.3d. at 235. Rather, it is the responsibility of defense counsel to inform a defendant of his right to testify, including the fact that the ultimate decision of whether to testify belongs to him. Id. Thus, a claim that a defendant was denied his right to testify is properly addressed under the Strickland framework for an ineffective assistance claim. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel's performance was deficient and (2) a reasonable probability exists the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Even if we assumed appellant's argument was an ineffective assistance of counsel claim, his argument fails. The record shows the trial court allowed appellant time to discuss the situation with his attorney. After a brief recess, appellant indicated twice on the record that he did not wish to testify. His attorney specifically stated "[b]ased on what you indicated your ruling would be on the self-defense issue, he has [decided] not to testify." Thus, it appears appellant's decision not to testify had nothing to do with defense counsel's actions. Appellant has failed to bring forth any record indicating counsel otherwise coerced him into not testifying against his wishes or that counsel's performance fell below an objective standard of reasonableness. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (claim of ineffective assistance of counsel must be firmly supported in the record). Thus, appellant's second issue is overruled. Right to Counsel
In his third issue, appellant alleges the trial court violated his right to counsel by stating he was not entitled to an instruction on self-defense, and this forced him to act contrary to the advice of his lawyer. He specifically claims, "by meddling so decidedly in Appellant's right to consult with his own lawyer, the trial court violated Appellant's right to counsel under the Sixth Amendment of the United States Constitution." We disagree with appellant's assertion. There is no evidence in the record indicating the trial court's refusal to include a self-defense instruction forced appellant to choose not to testify when his attorney advised him to testify. Further, there is no indication in the record that defense counsel allowed the trial court to interfere with his duty to adequately advise his client. Rather, the record shows the trial court allowed appellant time to discuss the situation with his attorney. After a brief recess, appellant indicated twice on the record that he did not wish to testify. We conclude appellant's third issue is without merit and is therefore overruled. Exclusion of Videotape and Testimony
In his fourth issue, appellant argues the trial court erred in excluding evidence of his cooperation with police. Specifically, he claims the trial court should have allowed him to question Officer David Barnett about a videotaped conversation between the two because it showed evidence of his cooperation with the investigation. The State objected on the basis of hearsay. Outside the presence of the jury, appellant asked Officer Barnett whether he received information as part of his investigation that appellant was defending himself. Officer Barnett answered, "Other than what he made in his statement to us, no, I did not." The trial court ruled that appellant could not use Officer Barnett as a strawman to testify about self-defense either by asking him about any statements appellant made or whether appellant participated in a video interview. When defense counsel argued the court was preventing him from presenting his self-defense claim, the court responded "You can call your client at any time you want to and get all the self-defense you want in there. You don't get to use [Officer Barnett] to do it. That's hearsay." It is well-settled that when the accused does not take the stand, self-serving statements are not admissible where they are merely contradictory to some act or declaration first proffered by the prosecution. Hafdahl v. State, 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other grounds by Cook v. State, 858 S.W.2d 467 (Tex. Crim. App. 1993); see also Reado v. State, 690 S.W.2d 15, 17 (Tex. App.-Beaumont 1984, pet. ref'd). Here, the State presented no exculpatory or explanatory evidence in favor of appellant. Further, the State did not mislead or leave the jury with an incomplete version of the facts. It presented eye-witness testimony from complainant and several others, all of whom testified appellant shot complainant without provocation. Thus, any testimony by Officer Barnett allegedly showing appellant acted in self-defense would be purely self-serving. Appellant could have taken the stand and presented the evidence himself and then been cross-examined by the State. However, he chose not to. Thus, the trial court did not abuse its discretion by excluding the evidence. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (exclusion of evidence reviewed under abuse of discretion standard). To hold otherwise would mean "all self-serving statements by an accused would be admissible." Reado, 690 S.W.2d at 17. Despite the above-stated case law, appellant alternatively argues the state of mind exception to the hearsay rule applies to show his cooperation with police. See Tex. R. Evid. 803(3). He further claims he should have been allowed to introduce evidence of his cooperation because it did not constitute an assertion of self-defense. Even assuming the trial court erred in failing to admit the evidence of cooperation, we conclude error, if any, is harmless. See Tex. R. App. P. 44.2(b) (any error not affecting substantial rights must be disregarded); Sohail v. State, 264 S.W.3d 251, 262 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd) (substantial rights are only affected when the error has a significant and injurious effect on the jury). The jury's understanding of the events in question would not have been assisted in any way by knowing appellant talked to and cooperated with police after his arrest. Such information would have been helpful only if they knew the substance of the conversation. However, as previously noted, the substance of the conversation was properly excluded. Thus, appellant cannot establish harm. We overrule his fourth issue. Right to Present a Defense and Want of Impartiality
In his fifth issue, appellant complains the trial court prevented him from presenting his defense by (1) coercing him to waive his right to testify, (2) interfering in his right to counsel, (3) refusing to instruct the jury on self-defense, and (4) excluding evidence of hearsay that would have shown his cooperation with the police. In his sixth issue, appellant again regurgitates these arguments and asserts the trial court "acted at every opportunity to preclude Appellant from presenting his only conceivable defense. . .," and the trial court's actions "evince the trial judge's want of impartiality." Having previously considered these arguments and found them to be without merit, we conclude the trial court's actions did not interfere with appellant's right to present a defense or that it acted impartially. We overrule his fifth and sixth issues. Conclusion
Having overruled all of appellant's issues, we affirm the trial court's judgment.