Opinion
05-22-00464-CR
07-07-2023
SCOTT LYNN LITTON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(B)
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F17-25478-U
Before Justices Molberg, Carlyle, and Smith
MEMORANDUM OPINION
CRAIG SMITH JUSTICE
Appellant Scott Lynn Litton appeals his conviction for manslaughter. In a single issue, he contends the evidence is insufficient to show that he recklessly caused the death of Miguel Esquivel. We affirm.
Background
Appellant was indicted for murder. The State subsequently moved to amend the indictment to allege manslaughter, and the trial court granted the motion. Appellant waived his right to a jury, and the case was tried to the bench.
The trial court heard evidence that, on October 20, 2017, a number of teenagers were at Embree Park in Garland, Texas, for a fight between Juan Gutierrez and appellant. Gutierrez and appellant had a disagreement related to Gisselle Hernandez and had fought previously.
Appellant was already at the park with a group of teenagers (the Garland group) when another group that included Gutierrez and Esquivel (the Dallas group) arrived in four vehicles. Following the fight, members of the Dallas group got into the vehicles and began to drive away. Esquivel was seated in the backseat of Gutierrez's red Ford truck.
The evidence regarding what transpired next is disputed. However, appellant admits that he fired four gunshots, one of which hit Esquivel in the back of the head. Esquivel died as a result of the gunshot wound.
Garland Police Detective Robert Golladay interviewed appellant the following day, and a videotape of the interview was admitted into evidence. Initially, appellant reported that, as the Dallas group was leaving the park, one of the Dallas group members threatened to kill him before getting out of a red truck and shooting a gun twice toward the Garland group. Someone standing behind appellant fired three or four shots in return. Appellant left the park and went to McDonalds.
Later in the interview, appellant disclosed that he had fired the gun, a black and silver Smith &Wesson. Appellant knew that a Garland group member had the gun. After he was threatened, appellant turned to ask for the gun. And, after the Dallas group member shot in appellant's direction, appellant picked up the gun, which was on the ground nearby, and fired four shots. He fired the first shot in the air and the other three towards the Dallas group. As he fired, he looked away and closed his eyes. Afterward, he threw the gun to the ground and left. Later, he watched the news at a friend's house and learned that Esquivel was in critical condition. Appellant told Detective Golladay that he did not mean to kill anyone; he just wanted to scare the Dallas group.
Appellant and Detective Golladay called appellant's friend Enrique to confirm appellant's version of events. On speakerphone, appellant told Enrique that the police wanted to know if "the black guy shot at us first." After a long pause, Enrique said that he did. Thereafter, according to Detective Golladay, "everybody . . . from the Garland group" came forward to provide a "side of the story" that aligned with appellant's statement.
The police found four 40-caliber casings in the area of the park where appellant said he fired the gun. According to Detective Golladay, appellant was approximately forty-nine yards away from the vehicles when he fired the gun in their direction. The police did not locate any casings in the vicinity of the vehicles or any bullets at the scene.
During his investigation, Detective Golladay obtained a Snapchat message sent from appellant's account the day before the shooting. The message read that he "already found" a pistol and that he was going to buy a ".9", which Detective Golladay believed referred to a nine-millimeter firearm. Detective Golladay also received a photo of appellant posing with a black and silver gun matching the description of the gun he fired at the park. Appellant told Detective Golladay that the gun in the photo was a fake, but admitted having fired a gun a few weeks earlier.
The State introduced short videos, which showed at least some of the fighting and its aftermath. In one video made by a Garland group member as the Dallas group was leaving, a voice can be heard saying, "They're bussing," and the person filming then appeared to move with "some speed." Detective Golladay testified that the term "bussing" referred to shooting and assumed the comment was made by someone in the Garland group about the Dallas group. Shots could not be heard on the video.
Andrew "Toby" Valdez testified that he was standing in close proximity to appellant as the Dallas group was leaving. The groups were separated by a distance measuring roughly half a football field. The Dallas group stopped, and Valdez saw one of them get out of a truck and fire one shot. Valdez testified that the weapon looked like a revolver. Valdez did not remember the shooter saying, "I'mma kill you," as appellant reported. And, although he was standing next to appellant, Valdez did not see appellant return fire.
Juan Gutierrez testified that he and some other Dallas group members (but not Esquivel) had been looking for appellant earlier in the day. He drove his red truck to Embree Park where appellant had agreed to fight. Gutierrez had five passengers, including Esquivel. In all, the Dallas group comprised about twenty people in four vehicles. After the fight, Gutierrez intended to go home and started to drive off. The silver truck in front of him stopped, and Timadrick "TJ" Fry got out of it. Gutierrez saw Fry point a gun in the direction of the Garland group and shoot once. Gutierrez did not know how many shots Fry fired or who fired first.
Gutierrez was interviewed by the police twice. The first time, he told them Fry did not have a gun. During the second interview, he told them that he saw Fry shoot and that Fry fired first. He later told the prosecutor that Fry did not get out of the vehicle and fire shots. Confronted with his changing version of events, Gutierrez testified that he remembered Fry getting out of the truck. Specifically, someone in the Dallas group yelled out that the Garland group had a gun and Fry got out and fired from the silver truck. Gutierrez did not see appellant fire any shots. Gutierrez also testified that Esquivel did not pose a threat to anyone and was an innocent third-party at the park.
Gisselle Hernandez was not at the fight, but reported to the police that Angel Castillo, a member of the Dallas group, told her before the fight that he was going to take a gun to the fight and "was going to shoot [appellant]. I don't know, fight him." After the fight, Castillo texted her that he "thought" Fry shot first; Hernandez reported to police that Castillo told her that Fry shot first.
Castillo testified that about ten people in four trucks went to Embree Park looking for appellant. Only Gutierrez and appellant were supposed to fight. Fry and three other friends were riding with Castillo in his silver Chevy Silverado as they were leaving the park. Castillo saw appellant fire a gun but did not recall that Fry had a gun or recall seeing a gun in the Dallas group. When police interviewed him at school, Castillo texted Jacorey, who also had been in his truck, to let Jacorey know the police would want to interview him, the police were saying that Fry shot from Castillo's truck, and that Castillo had told them Fry was not in his truck and did not have a gun in or shoot from his truck. Castillo indicated to Jacorey that he should say the same if asked.
When shown Snapchat texts between himself and Hernandez, Castillo acknowledged texting Hernandez before the fight that he did not think appellant was "going to be deep," meaning appellant would not have "a lot of people" with him. He did not recall telling Hernandez, before the fight, that he was going to "kill" appellant or, afterwards, that Fry fired a shot.
Fry testified that he did not fire a shot that day, did not know who fired the first shot, and did not see someone from the Dallas group fire a shot. He was just there to fight. He also denied previously telling defense counsel that he knew, but would not disclose, who fired. Fry testified that he was currently in prison for aggravated assault with a deadly weapon, aggravated assault in retaliation, robbery, marijuana possession, and possession of a firearm.
Detective Golladay testified that appellant acted recklessly by "blindly" shooting a gun into the crowd and at vehicles "packed with people." Based on the circumstances, including the significant distance between the two groups and the fact that appellant fired the gun in a crowded park with a recreation center, playground, basketball court, school, and homes nearby, Detective Golladay believed appellant's actions were reckless even if someone else had fired first.
After hearing the evidence and considering the law with regards to self-defense, necessity, and defense of third parties, the trial court found appellant guilty of manslaughter. The trial court subsequently sentenced appellant to twelve years' confinement.
Sufficiency of the Evidence
In a single issue, appellant asserts the evidence is insufficient to show that he recklessly caused Esquivel's death and that, instead, the evidence shows that he was justified in returning fire. Appellant also argues that it was "neither fair, appropriate, nor legitimate to apply" Texas Penal Code section 9.05.
Standard of Review
When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether the factfinder was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The factfinder is permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Circumstantial evidence alone may be sufficient to establish guilt. Id.
It is the factfinder's duty to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts; we defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Applicable Law
A person commits the offense of manslaughter if the person "recklessly causes the death of an individual." TEX. PENAL CODE ANN. § 19.04; Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013). A person acts recklessly when the person "is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur." TEX. PENAL CODE § 6.03(c); see Britain, 412 S.W.3d at 520 ("Manslaughter is a result-oriented offense: the mental state relates to the results of the defendant's actions."). "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." TEX. PENAL CODE § 6.03(c).
Deadly force in self-defense is justified if, among other things, the actor reasonably believes the force is immediately necessary to protect the actor against another's use or attempted use of unlawful deadly force or to prevent the other's imminent commission of murder. Id. § 9.32(a). Deadly force is force "intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." Id. § 9.01(3). A reasonable belief is one that an ordinary and prudent person would hold in the same circumstances as the actor. Id. § 1.07(a)(42). The actor's belief that deadly force was immediately necessary is presumed to be reasonable if the actor (1) knew or had reason to believe that the person against whom the force was used was committing or attempting to commit murder; (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity. See id. § 9.32(b)(1)(C), (2), (3).
A defendant bears the burden to produce evidence of self-defense; the State bears the burden of persuasion to disprove the issues raised. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018) (citing Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991)). Self-defense is a fact issue for the factfinder, and a guilty verdict is an implicit rejection of self-defense. London v. State, 325 S.W.3d 197, 202 (Tex. App.-Dallas 2008, pet. ref'd) (citing Saxton, 804 S.W.2d at 913-14). When reviewing the sufficiency of the evidence, we determine whether, after viewing all the evidence in the light most favorable to the State, any rational factfinder would have found the essential elements of the offense beyond a reasonable doubt and would have found against the defendant on the self-defense issue beyond a reasonable doubt. Braughton, 569 S.W.3d at 609.
A defendant may raise the justification of self-defense to manslaughter. Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim. App. 2011). However, a fact finder cannot find that a defendant acted recklessly and in self-defense. Id.
Section 9.05 of the Texas Penal Code provides that, "[e]ven though an actor is justified . . . in . . . using . . . deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification [of self-defense] is unavailable in a prosecution for the reckless injury or killing of the innocent third person." TEX. PENAL CODE § 9.05.
Analysis
Appellant asserts that the evidence is clear that twenty people in the Dallas group "hunted" for him for the purpose of fighting and that "someone, probably [Fry], fired a weapon at [the Garland] group." Appellant, feeling he was the target, fired several rounds "hoping to prevent further shots and possible injury or death." According to appellant, the evidence shows his conduct in returning fire was justified under section 9.32 of the penal code.
"Evidence that a defendant knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another indicates a person who is aware of a risk created by that conduct and disregards the risk." Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985), abrogated on other grounds by Najar v. State, 618 S.W.3d 366, 371-72 (Tex. Crim. App. 2021). Here, there was evidence from which the trial court could infer that appellant was familiar with guns, understood how to use them, and knew they were dangerous. He had fired a gun only weeks before the incident and previously had posed for a photo with a gun that appeared to match the description of the gun he fired at Embree Park. The day before the fight, he messaged a friend about obtaining a gun. At the park, he knew, before things escalated, that there was a gun that he could access. He later fired the gun, without looking, at least three times towards vehicles full of passengers approximately fifty yards away. He did so at a public park in a residential neighborhood. Detective Golladay testified that appellant's actions were reckless, even if someone else had fired first.
After the shooting, appellant threw the gun to the ground and left. Later, he watched the news for information about the incident. He did not speak to police until the next day and then lied to Detective Golladay before finally admitting that he fired the shot that killed Esquivel. Appellant's actions following the shooting show a consciousness of guilt and support both a finding that he was reckless and a rejection of his self-defense claim. See, e.g., Gahagan v. State, 242 S.W.3d 80, 88 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (circumstantial evidence regarding defendant's familiarity with guns and her conduct immediately after the shooting, including getting rid of the casing, misleading the police, and failing to render aid, supported a reasonable inference that she was conscious of the risk created by her actions). Viewing all of the evidence in the light most favorable to the verdict, we conclude that a rational factfinder could have found beyond a reasonable doubt that appellant acted recklessly. See TEX. PENAL CODE §§ 6.03(c), 19.04.
The evidence on whether Fry fired a gun or fired first was disputed. Indeed, several witnesses told multiple, conflicting accounts of what happened. The trial court's finding on the issue of self-defense hinged on the credibility of the witnesses and, as factfinder, it was free to choose which testimony to believe. See Dearborn v. State, 420 S.W.3d 366, 373 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (in a bench trial, the trial court is free to accept or reject defensive evidence on the issue of self-defense). We must presume the trial court resolved any conflicting inferences and credibility issues in favor of its judgment, see id., and, on this record, a rational factfinder could have found appellant guilty of manslaughter beyond a reasonable doubt by choosing to believe the evidence favoring conviction and by choosing to disbelieve the evidence favoring self-defense.
Finally, appellant claims that it would be "neither fair, appropriate, nor legitimate to apply" section 9.05 in this case. Under section 9.05, self-defense is not available when the charged offense alleges that a defendant recklessly injured or killed an innocent third person while using deadly force in response to a threat from someone else. See TEX. PENAL CODE § 9.05 . Considering all of the evidence in the light most favorable to the verdict, even if appellant had been justified in acting in self-defense, a rational factfinder could have found that appellant's reckless shooting caused Esquivel's death and Esquivel was an innocent third person. Accordingly, the trial court did not err in applying section 9.05.
Appellant asserts, without citation to the record, that Esquivel "may not have been" an innocent third person. Witnesses, however, denied that Esquivel was involved in the shooting or the fighting. Gutierrez testified that Esquivel was not a threat to anyone. Whether Esquivel was an innocent third party was a fact question, see, e.g., Dugar v. State, 464 S.W.3d 811, 819 (Tex. App.-Houston [14th Dist.] 2015, pet. ref d), and the trial court was free to credit the testimony showing that Esquivel was an innocent third party. See, e.g., Brown v. State, No. 10-07-00279-CR, 2010 WL 138331, at *1-2, 6-7 (Tex. App.-Waco Jan. 13, 2010, pet. dism'd) (mem. op., not designated for publication) (victim was an "innocent third party" after being shot and killed by defendant who, during a brawl, blindly fired shot in the victim's direction after hearing shots coming from that direction).
Appellant now argues that, "[i]f the risk was justified at the time he acted, [he] should not be denied his right to defend himself or others because of the hindsight application of [s]ection 9.05." He did not raise this section 9.05 argument in the trial court. Accordingly, we conclude he has not preserved the argument for our review. See TEX. R. APP. P. 33.1(a)(1) (to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds, if not apparent from the context, for the desired ruling). Moreover, the Court of Criminal Appeals has explained, without relying on section 9.05, that a defendant cannot act recklessly and in self-defense. Alonzo, 353 S.W.3d at 782.
We overrule appellant's sole issue.
Conclusion
The trial court's judgment is affirmed.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.