Ibarra v. State

Full title: JESUS ANTONIO IBARRA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 3, 2005

No. 05-04-01294-CR (Tex. App. May. 3, 2005)

Opinion

No. 05-04-01294-CR

Opinion issued May 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194^th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-57717-IM. Reversed and Remanded.

Before Justices WHITTINGTON, FITZGERALD, and RICHTER.

OPINION

Opinion By Justice WHITTINGTON.

Jesus Antonio Ibarra appeals his conviction for the murder of Jerry Sanchez. After finding appellant guilty and that he used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment at fifty years' confinement. In six points of error, appellant claims the evidence is legally and factually insufficient to support the implied negative finding on self-defense, the trial judge submitted an erroneous jury charge at the conclusion of guilt/innocence, the trial judge committed fundamental error in the submission of an incorrect jury charge on sudden passion at the conclusion of punishment, trial counsel was ineffective for failing to object to the sudden passion jury charge error, and the trial judge erred in instructing the jury on good conduct time credit. We reverse the trial court's judgment and remand this cause for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004-05).

Legal and Factual Sufficiency

In his first and second points of error, appellant claims the evidence is legally and factually insufficient to support the jury's implicit finding that appellant did not act in self-defense. Under these points, appellant claims "the jury acted irrationally by implicitly rejecting his claim of self[-] defense." We disagree. A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. When a fact finder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914. When an appellant challenges the factual sufficiency of the rejection of self-defense, we review all of the evidence in a neutral light and ask "whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani, 97 S.W.3d at 595 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). The use of deadly force is justified in self-defense only when (i) the defendant would have been justified in using force under section 9.31 of the penal code; (ii) a reasonable person in the defendant's position would not have retreated; and (iii) the use of deadly force was reasonably believed to be immediately necessary to protect the defendant against another's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. §§ 9.31, 9.32 (Vernon 2003); see Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App. 1994). In this case, the jury was instructed to acquit appellant on the grounds of self-defense if the jurors found:

from the evidence beyond a reasonable doubt that . . . [appellant] did shoot [Jerry] with a firearm, but you further find from the evidence, or you have a reasonable doubt thereof, that viewed from the standpoint of [appellant] at the time, from the conduct of [Jerry] it reasonably appeared to [appellant] that his person was in danger of death or serious bodily injury and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use or attempted use of unlawful deadly force at the hands of [Jerry] and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against [Jerry's] use or attempted use of unlawful deadly force, [appellant] did shoot [Jerry], you will acquit [appellant, or, if you have a reasonable doubt as to whether or not [appellant] was acting in self-defense on said occasion and under said circumstances, then you should give [appellant] the benefit of that doubt and say by your verdict not guilty.

The evidence shows that on December 14, 2002, fourteen-year-old Gustavo Rojo was watching television with his brother when he heard people arguing outside. He looked out through an open window and saw Jerry "about to swing" at a man. Gustavo did not see anything in Jerry's hand. The man went to a black F-150 pickup truck, took out a gun, and shot Jerry at least twice. Gustavo identified appellant as the man who shot Jerry. When Gustavo and his dad ran outside, Jerry was on the ground. There was a sledge hammer and two cell phones on the ground nearby. Fourteen-year-old Luna Padilla testified she was playing with friends outside the Chapel Creek Apartments in Dallas. She heard men arguing and saw appellant get a sledge hammer from his truck and hit Jerry in the stomach. Jerry doubled over. Luna then heard two shots. She hid behind a car and saw appellant walk to his truck. After appellant drove off, she ran to Jerry who was lying on the ground. He had been shot. Jerry was going to say something but Luna ran off. Twelve-year-old Mary Perez testified she was playing with Luna and another friend, Prescilla, when they heard two men, pushing each other and arguing in Spanish. One of the men was Jerry. The other man walked to a black truck, took out a sledge hammer, and hit Jerry in the stomach. Jerry doubled over. The man then took out a rifle and shot Jerry in the neck. After shooting Jerry two more times, he got in his truck and drove off. In contrast, appellant testified he was trying to park his truck in the parking lot when three "Latinos" yelled at him, telling him he could not park there. The men were standing in the only open parking space, drinking beer. Appellant continued to pull his truck into the parking spot. One man (later identified as Jerry) "arrived yelling . . . furiously" with a sledge hammer in his hands. He was carrying it like a baseball bat. According to appellant, Jerry tried to swing at him but appellant put the truck in reverse and pulled out of the spot. He could not back up further because there were cars behind him. Appellant was afraid because Jerry kept yelling at him. He told Jerry he did not want any problems, but Jerry continued to threaten him. Appellant picked up his rifle and, leaning out the window, fired it into the sky. Appellant testified Jerry then dropped the sledge hammer, "launched himself towards the [truck] door," and opened the truck door. As appellant loaded the rifle, Jerry grabbed the gun by the barrel and tried to pull it away. Appellant was hitting and pushing Jerry when the rifle "went off." Appellant shot Jerry a second time, then fled. Appellant testified he was "in fear" that he was "going to die or be seriously injured at the time" he fired the rifle at Jerry. He believed it was his life or Jerry's. During cross-examination, he admitted he fled to Mexico. He also admitted Jerry did not hit his truck or him. When asked why he did not drive away, appellant testified he could not because he was in the parking space. Although appellant claims no rational juror could have found he did not act in self-defense, we disagree. The evidence shows at least two eyewitnesses testified appellant was the aggressor and went at Jerry with a sledge hammer. After striking him, appellant then retrieved his rifle and shot Jerry. Although appellant testified he was only trying to park his truck and that Jerry scared him, appellant's own testimony was conflicting. Appellant testified he pulled out of the parking space but Jerry came after him anyway. On cross-examination, appellant claimed he could not retreat because he was in the parking space. He also stated he could not retreat because there were cars behind him. After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and the same rational trier of fact would have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. And, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence taken alone is too weak to support the finding or that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. Therefore, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We overrule his first and second points of error.

Reasonable Doubt Instruction

In his third point of error, appellant contends the trial judge erred in instructing the jury that

that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt." Appellant argues this instruction provides a definition of reasonable doubt and, therefore, violates the Texas Court of Criminal Appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We have previously examined this precise issue and have concluded that the language appellant now contends is objectionable does not define "reasonable doubt." See O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.-Dallas 2003, pet. ref'd). Although appellant expresses disagreement with the O'Canas opinion, we do not share his concerns. Accordingly, we overrule appellant's third point of error.

Jury Charge on Sudden Passion

In his fourth point of error, appellant contends the trial judge committed fundamental error when he charged the jury that it was not required to render a unanimous verdict on the punishment issue of sudden passion. Although he did not object at trial, appellant argues it was egregious error because it "authorize[d] one juror to determine the issue of sudden passion adversely to Appellant." We agree. In Sanchez v. State, 23 S.W.3d 30 (Tex.Crim.App. 2000), the Texas Court of Criminal Appeals concluded article 37.07, section 3(c) of the code of criminal procedure requires "unanimity with respect to the jury's preliminary vote on sudden passion." Sanchez, 23 S.W.3d at 34; see Tex. Code Crim. Proc. Ann. art. 37.07, § 3(c) (Vernon Supp. 2004-05). The Court concluded the trial court's charge in that case, that an "affirmative ('yes') answer on the issue [of sudden passion] submitted must be unanimous, but if the jury is not unanimous in reaching an affirmative answer, then the issue must be answered `no,'" was erroneous. Sanchez v. State, No. 05-97-01389-CR, 1999 WL 173986, at * 7 (Tex.App.-Dallas March 31, 1999) (not designated for publication), aff'd, 23 S.W.3d 30 (Tex.Crim.App. 2000). In this case, the jury charge language on the special issue is identical to the language determined to be erroneous in Sanchez. Thus, the jury charge in this case was improper. Having determined the jury charge on punishment was erroneous, we next consider whether the error caused egregious harm. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App. 2004) ("Our case law is clear that when there is jury-charge error, whether objected to or not objected to, the standard for assessing harm is controlled by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) [(op. on reh'g)]."); Williams v. State, 851 S.W.2d 282, 287 (Tex.Crim.App. 1993) (applying Almanza egregious harm test because appellant failed to object to jury charge error). In considering the actual degree of harm, we examine "the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. During guilt/innocence, the evidence focused on whether appellant was threatened by Jerry or acted as the aggressor. The three eyewitnesses testified the two men were arguing. One witness testified Jerry was about to swing at appellant when appellant first hit Jerry. Appellant testified he was afraid and kept trying to get away from Jerry. According to appellant, he did not know Jerry. Closing argument by both the State and appellant focused on sudden passion. The State argued If you think, you know what, John and Shelly, I think he did act under sudden passion, do you know what the Judge instructed you? That's not enough. It has to be unanimous. All 12 of you have to answer that special issue, Yes, the Defendant was acting under sudden passion. There was adequate cause that would cause an ordinary person to act in that manner. After the jury rejected the sudden passion special issue, the judge asked the jury if the verdict represented "your individual verdict on the special issue." According to the record, each juror raised his or her right hand. This procedure was repeated when the trial judge read the sentence assessed by the jury and asked if it reflected "your individual verdict in this phase of the trial." Again, the record reflects each juror raised his or her right hand. Although the jurors raised their hands collectively when asked if the "no" answer reflected their individual verdict, no individual poll was taken. In light of the erroneous instruction, the record does not establish that each individual juror voted "no." Rather, the record reflects that the collective vote was "no." Because this could have been the result of the jury not being unanimous in reaching an affirmative answer, we conclude the error was actual and egregious. In reaching this conclusion, we reject the State's argument that the "verdict forms do not address the unanimity of the verdict, but by its language presumes that all the jurors agreed." That the verdict forms fail to address unanimity but state "we, the jurors" is no evidence that the jurors unanimously agreed to a "no" vote on the issue of sudden passion. The instruction states the issue must be answered "no" if the jury is not unanimous in reaching an affirmative answer. This clearly provides for one juror to decide appellant was not under the immediate influence of sudden passion, thereby preventing a "yes" answer. We are also unpersuaded by the State's second argument, that this case is distinguishable from the Sanchez case because "the evidence regarding sudden passion in Sanchez was uncontradicted." Thus, the State appears to argue that we should infer harm when the evidence is strong yet not infer harm if evidence is weak. However, in Sanchez, the "uncontradicted" evidence resulted in the jury voting "nine `no' and three `yes' on the issue of sudden passion." Sanchez, 1999 WL 173986, at *7. Contrary to the State's logic, we conclude that whether the evidence presented regarding sudden passion is substantial and convincing or weak and not persuasive is an issue solely for the jury, not this Court, to decide. We sustain appellant's fourth point of error. In his remaining two points, appellant claims trial counsel was ineffective for failing to object to the erroneous jury charge and the trial judge erred in instructing the jury on good conduct time credit. In light of our disposition of appellant's fourth point, we conclude we need not address these two points. See Tex.R.App.P. 47.1. We reverse the trial court's judgment and remand this cause for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004-05).