No. 05-04-00234-CR
Opinion Issued May 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F96-47409-T. Affirmed.
Before Justices BRIDGES, LANG-MIERS, and MALONEY.
Opinion By Justice MALONEY.[fn1] [fn1] The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
The jury found Blas Ovalle guilty of murder and assessed a ten-year sentence. In two issues, appellant complains (1) the evidence was factually insufficient to disprove that appellant acted in self-defense and (2) the parole jury instruction, as applied, denied him due process. We affirm the trial court's judgment.
Background
Appellant and his brother, Valente Ovalle, began arguing at a wedding they both attended in June 1996. About an hour after they left the wedding, appellant went to the deceased's apartment. They began to argue again, and appellant stabbed the deceased. Appellant left the scene and was arrested in California in 2003. WAS THE EVIDENCE FACTUALLY SUFFICIENT?
In his first point of error, appellant contends the evidence is factually insufficient to support the jury's verdict because the State failed to prove that he did not act in self defense. He argues that the evidence shows that he went to the deceased's apartment to talk to him. While there, the deceased threw a box fan at appellant and shot at him. Before appellant could get away, the deceased began choking appellant and threatened to kill him. In response, appellant stabbed the deceased. The State responds that conflicting evidence exists on whether appellant chose to leave the scene or to stay and confront the deceased. The State argues that the factfinder could have reasonably rejected appellant's evidence and believed the State's evidence, and the evidence contrary to the verdict was not strong enough to defeat the beyond-a-reasonable-doubt standard. 1. The Evidence a. Armado Perez
Perez, a Dallas Police Department Detective assigned to the Cold Case Squad, testified that in February 2003, he received a telephone call from an El Paso attorney who had information on appellant's address in California. The California authorities arrested appellant. b. Tom Hogeland
Hogland, a El Dorado County Sheriff, testified that he arrested appellant in California on a Dallas County warrant. Hogland approached appellant at appellant's place of work. When Hogland showed appellant the photograph that accompanied the warrant, appellant denied he was the man in the photograph. Appellant also denied he had ever been in Texas although he later admitted he had been in Austin. As Hogland continued to look at appellant and the photograph, he decided that appellant was the man in the photograph and arrested him. c. Tim Stecker
Stecker, a Dallas Police Patrol Officer, testified that he and his partner, Jeff Scott, responded to a "cutting call with a man laying in the parking lot" of an apartment house. When they arrived at the scene, the deceased was on the ground and some people were standing in the parking lot, others were on a balcony. Stecker's questioning of the people present revealed that appellant had stabbed the deceased. One of the deceased's relatives described appellant and identified appellant as the deceased's brother. The officers called the Crimes Against Persons Unit (CAPERS) and the Physical Evidence Section (PES) and remained to secure witnesses and the scene. d. Daniel Wojcik
Wojcik, a Dallas County Police Department Crime Scene Detective, processed the crime scene. It appeared that a knife had been used to slash all four tires on the deceased's van. He also found a box fan with blood on it. e. James R. Vineyard
Vineyard, a Dallas County Police Department with CAPERS, testified he found a latent print on the left fender of the van. Its position was consistent with someone bracing himself to puncture a tire. Appellant's print matched the recovered print. f. Julia Carney
Carney, a retired Dallas Police Department Detective with CAPERS, and her partner arrived at the scene and identified the following witnesses-Leon Ovalle, the appellant's and the deceased's brother; Orlando and Roberto Ovalle, the deceased's sons; Modesto Martinez, the deceased's cousin; and Francisco Martinez. After the patrol officers took the witnesses downtown, Carney put the witnesses in separate interview rooms and interviewed them separately to insure independent statements. After she interviewed each witnesses, she took their statements. When Carney determined that appellant had left the scene in his pickup truck, she placed the truck's description on the patrol officers's computer. Later that morning, a patrol officer found appellant's pickup truck abandoned in a park. g. Bert Rippy
Rippy, a Dallas Police Officer, "sat" on the blue Dodge truck that was registered to appellant to see if anyone returned to the vehicle. When no one appeared, he had the truck towed to the city pound and put a hold on it for CAPERS. h. Roberto Ovalle
Roberto, the deceased's son, testified that he was fifteen when his father was killed. His brother, Rolando, and the deceased had gone to a wedding earlier on the evening in question while Roberto and Modesto had stayed home watching television. Roberto and Modesto were sleeping downstairs when the deceased, Rolando, and Francisco returned from the wedding. Appellant's hitting and kicking the front door awakened Roberto. Appellant was angry, yelling, cussing, calling the deceased's name, and appeared to have been drinking. The deceased came downstairs, but when he saw Roberto and Modesto, the deceased turned and ran back upstairs. When the beating on the door stopped, Roberto looked out through the blinds and saw that appellant had gone back to the parking lot. Appellant was standing by his truck and yelling at the deceased to come downstairs. This time the deceased went outside. Roberto put on his shoes and shirt and followed the deceased outside. Roberto saw appellant and the deceased were fighting. The deceased ran back inside the apartment and Roberto heard shots from upstairs that he thought came from the deceased. The deceased then came back downstairs and went to the parking lot. Appellant and the deceased began pushing each other back and forth and Roberto saw something shiny in appellant's hands. By the way the deceased was walking, Roberto thought something bad had happened and he went inside the apartment. Next, Francisco came running downstairs. Roberto, Rolando, and Modesto followed Francisco into the parking lot. The deceased was on the ground, and appellant was in his truck, rapidly backing out of the parking lot. On cross, Roberto testified that he heard three or four gun shots coming from upstairs and immediately thereafter the deceased ran outside. Roberto did not see who threw the box fan, he saw the box fan the first time he went out to the parking lot. Although he was worried about the deceased's safety when appellant and the deceased began pushing each other, he was frightened and went back into the apartment. He confirmed that the deceased was bigger and heavier than appellant. i. Modesto Martinez
Modesto testified that he was twenty years old at the time of the shooting. He and the deceased were cousins. Modesto explained that a stairway led to the front door of the apartment and the apartment itself had two floors. The second floor had a balcony that faced the parking lot. When appellant was banging on the door, the deceased came downstairs. But, when he saw Roberto and Modesto standing by the front door, the deceased turned and went back upstairs. Modesto followed the deceased upstairs and onto the balcony. The box fan was already on the ground when Modesto went out onto the balcony. Both Modesto and Francisco yelled down at appellant to go home and come back the next day to work out any problems. The deceased left the balcony and "came back shooting" his rifle "downstairs to where [appellant] was." During the shooting, appellant hid behind his truck. Modesto did not know if the deceased was shooting at appellant or just near him. When Modesto, Francisco, and Roberto took the deceased's rifle from him, the deceased broke away, left the balcony, and went out to meet appellant. The deceased was not armed as he left that apartment. By then, appellant was standing near the driver's side of his parked truck. His truck had its lights on and its engine running. Both appellant and the deceased were intoxicated and pushing each other on the chest. The Martinez brothers went downstairs to separate the deceased and appellant. By the time they reached the parking lot, the deceased was backing up with his hands "dangling on the sides." When the deceased fell, appellant turned, got into his truck, and began to back up. j. Jose Rolando Ovalle
Roland was sixteen at the time of the offense. He testified that on the night in question, he, appellant, and another man had gone to the wedding together. Both appellant and the deceased had been drinking and Rolando did not want to drive home with appellant. Appellant wanted Rolando to drive his truck, and the deceased told appellant that Rolando did not have to drive appellant's truck. Appellant and the complainant began to argue. Appellant threw his drink in the deceased's face, and the deceased hit appellant in the face. Rolando went home with his father and everyone went to bed. A loud banging on the front door awakened Rolando. Although he heard shots, he never saw the deceased shoot a weapon that night nor had he ever seen the deceased with a gun. When the deceased went out the front door, he had nothing in his hands and was wearing only his pants. Rolando called the police and then went out the front door. By then, the deceased was on the ground, and appellant was leaving in his truck. Rolando did not think that appellant would have had enough time to puncture the tires on deceased's van between the fight and appellant's driving away. k. The Appellant
Appellant testified that as they left the wedding, he told the deceased that Rolando wanted to drive appellant's truck back to the apartment. The deceased said nothing, but got out of the van and hit appellant. Appellant fell to the ground, and the deceased began kicking him. After appellant cleaned the blood off himself, he drove to the deceased's apartment. First, he punctured the deceased's tires, then he knocked hard on the door. He just wanted to talk with the deceased to see what problem he had with appellant. One of the deceased's sons asked appellant to leave and come back tomorrow. As appellant was leaving, "he" fired three shots at appellant. The first shot hit just in front of appellant, and appellant ducked behind his truck. When appellant got up from behind the truck, "he fired another three shots." Appellant stood up again and saw the deceased running toward him. Appellant picked up his pocket knife from the truck's seat because he thought the deceased had something in his hands. However, appellant admitted that the deceased had nothing in his hands. The deceased pulled appellant out of his truck and began to choke him. The deceased was taller and stronger than appellant, and appellant couldn't speak because of the choking. As the deceased was choking appellant, the deceased was "telling me that he was going to kill [appellant]." Appellant couldn't get away and he thought the deceased was going to kill him, so he opened his knife and "started striking [the deceased]." Even after the first "couple of times" appellant stabbed the deceased, the choking didn't stop. So, he kept stabbing him. Appellant stayed in Dallas for about a week. Friends told him that he could not go get his truck because "they" would be waiting for him and he had to leave town. Appellant went to California. While in California, he went to Mexico to visit his parents. His parents and one sister knew what had happened and where he was living. l. Leon Ovalle
Leon testified that he lived across the street from the deceased. About 3:00 a.m. on the morning in question, appellant pounded at his front door. Appellant was very drunk and upset. He told Leon that he and the deceased had gotten into a fight and the deceased had busted his lip. Appellant had a knife in his belt and he told Leon that he was going to kill the deceased with his knife. Leon thought it was just talk and told appellant to wait for another day when he was not so drunk, so they could talk. Leon went back to sleep, and in a few minutes, he was awakened again by his cousin who told him that appellant had stabbed the deceased. m. Jeffrey Barnard
Barnard, Dallas County's Chief Medical examiner, performed the autopsy on the deceased. The deceased had six stab wounds and scrapes, bruises, and abrasions on his hands. Barnard explained that the wounds to the hands could be either defensive or offensive wounds. The deceased had a blood alcohol level of .13. 2. Standard of Review
In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). 3. Applicable Law
A person commits murder if he knowingly or intentionally causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). However, a person my use force against another when and to the degree he reasonably believed the force is immediately necessary to protect himself against another's use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). If a person is justified in using force under section 9.31(a), then he is justified in using deadly force if (1) a reasonable person in his situation would not retreat and (2) he "reasonably believes the deadly force is immediately necessary" to protect himself against the other's use of deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon 2003); see Juarez v. State, 886 S.W.2d 511, 514 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). We judge reasonableness from the standpoint of the accused at the time he acted. See Juarez, 886 S.W.2d at 514. If the victim was unarmed, then we look at the accused's perception of danger. See Fry v. State, 915 S.W.2d 554, 560 (Tex.App.-Houston [14th Dist.] 1995, no pet.). However, deadly force is not justified if a reasonable person would have used nondeadly force. See Kelly v. State, 968 S.W.2d 395, 399 (Tex.App.-Tyler 1998, no pet.). The factfinder determines the witnesses' credibility and their testimony's weight and may accept or reject the defensive evidence. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). To refute a defensive issue, the State has the burden of persuasion, not production of evidence. See Saxton, 804 S.W.2d at 912-14. The State only must prove the essential elements of the offense beyond a reasonable doubt. See id. Therefore, when an appellant challenges the factual sufficiency of a rejected defense, we review "all the evidence in a neutral light to determine 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 589, 595 (Tex.Crim.App. 2003). 4. Application of Law to Facts
Under the Zuniga standard, after reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment, we cannot conclude that the contrary proof is so strong that the State did not meet the beyond-a-reasonable doubt standard. Nor can we conclude that the contrary proof outweighed the proof of guilt. Consequently, we conclude the evidence was factually sufficient. We resolve appellant's first issue against him. DID THE PAROLE JURY INSTRUCTION DENY APPELLANT DUE PROCESS OF LAW?
In appellant's second issue, he argues the parole law jury charge as applied to him denied him due process of law. He contends that the parole law jury instruction provided "erroneous information" on "the effect of good conduct time on . . . crimes listed under the government code." The State responds that appellant's failure to raise this constitutional issue at trial was a procedural default that presents nothing for review. Moreover, the State contends the trial court correctly charged the jury on the law and did not mislead the jury. We recognize that appellant replied "no" when the trial court asked appellant if he had any objections to the jury charge. Appellant's "no" does not waive appellant's right to challenge a jury instruction. Rather, we deem a "no" objection as an affirmative denial of objection, consider the "no" as a failure to object, and review for egregious harm. Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App. 2004); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). To do so, we must first determine if the trial court properly charged the jury. Appellant relies on Luiquis v. State, 72 S.W.3d 355 (Tex.Crim.App. 2002), to show that the Court of Criminal Appeals has addressed this same argument and concluded that this charge violated Luquis's due process rights. Appellant misplaces his reliance. The Luiquis Court decided the merits of appellant's issue against him. See Luiquis. 72 S.W.3d at 366-68. The Luiquis court held that the parole jury instruction given in that case, when viewed as a whole, did not mislead or was not "so misleading as to convert appellant's trial into a fundamentally unfair proceeding which denied him due process." Id. at 368. The parole jury instruction given in Luiquis differs from that which the trial court gave here in that the Luiquis trial court added an extra sentence in the third paragraph instructing the jury that if they sentenced the defendant "to a term of less than four years, he must serve at least two years before he is eligible for parole." Id. at 358-59 n. 2 (reciting the parole instruction in Luiquis). Given that the penal code provides a minimum sentence of five years in a murder conviction, we fail to see how the trial court's omitting the above Luiquis language would cause us not to come to the same conclusion as did the Luiquis court. We resolve appellant's second issue against him. We affirm the trial court's judgment.