Solorzano v. State

Full title: JUAN SOLORZANO, JR., Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: May 18, 2005

No. 04-03-00514-CR (Tex. App. May. 18, 2005)

Opinion

No. 04-03-00514-CR

Delivered and Filed: May 18, 2005. DO NOT PUBLISH.

Appeal from the 83rd Judicial District Court, Val Verde County, Texas, Trial Court No. 9292, Honorable Carl Pendergrass, Judge Presiding. Affirmed.

Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.

MEMORANDUM OPINION

KAREN ANGELINI, Justice.

Following a jury trial, Juan Solorzano, Jr. was convicted of aggravated assault with a deadly weapon. The trial court sentenced Solorzano to forty-five years imprisonment. In three issues, Solorzano appeals his conviction. We affirm.

Factual and Procedural Background

On September 2, 2001, Solorzano was involved in an altercation with his uncle, Luis Rodriguez, in the front yard of Solorzano's grandmother's house. When Andre Santiago, the Del Rio police officer who was called to the scene, arrived, Solorzano had left the scene. Officer Santiago took statements from Rodriguez and Rodriguez's brother, Albert Baeza. Rodriguez, who was injured and bleeding from the head, told Officer Santiago that Solorzano had hit him in the head with a pipe.¹ Rodriguez pointed to the pipe, which Officer Santiago found nearby. In Rodriguez's written statement to the police, Rodriguez stated that Solorzano had come into the house to cook some rice, but that Rodriguez had yelled at him for splattering grease on the floor. Solorzano told Rodriguez not to yell at him. Rodriguez told Solorzano he had the option of leaving. Solorzano started to leave but then turned around and ran toward Rodriguez. They fought their way outside the house. Solorzano then picked up a pipe and hit Rodriguez with it. Rodriguez tried to defend himself and in doing so, hit Solorzano. Baeza pulled Solorzano off of Rodriguez. At trial, Rodriguez's testimony was slightly different. Rodriguez testified that just prior to the altercation, Solorzano had been cooking some rice in the kitchen when Rodriguez got upset with him because he was splattering grease. When Solorzano turned to leave the house, Rodriguez followed him and threw the hot rice at him. The altercation then ensued. At trial, Rodriguez first testified that he was unable to recall whether Solorzano hit him with a pipe. Rodriguez then testified that he and Solorzano "hit each other with pipes." Rodriguez could not recall whether he or Solorzano picked up the pipe first. However, he did know that both he and Solorzano were holding on to the pipe. Rodriguez stated that he was not sure how he received the injuries to his head, but he did have his injuries treated at the hospital the day after he received them. Baeza testified that on the day of the altercation, he saw Solorzano on top of Rodriguez with a pipe. Rodriguez was also holding on to the pipe. Baeza told Solorzano to "turn loose." Solorzano did so and ran away. Rodriguez was bleeding from the head. Although Baeza's statement to the police indicated he saw Solorzano hitting Rodriguez, he testified at trial that he did not see Solorzano hit Rodriguez. Solorzano testified at trial to the facts surrounding the altercation. He stated that, during the altercation, he did hit Rodriguez, but with his fists, not a pipe. Solorzano testified that he did not know how Rodriguez sustained the wound to his head. Although Solorzano did not remember who picked up the pipe first, he did know that he did not hit Rodriguez with the pipe. According to Solorzano, after the altercation, he left because his uncle, Baeza, told him to leave.

Self-Defense Instruction

In his first issue, Solorzano contends that he was entitled to an instruction on self defense. We disagree. Self defense is a justification defense. See Tex. Pen. Code Ann. §§ 9.02, 9.31 (Vernon 2003). To be entitled to a charge justifying his conduct, a defendant must admit committing the conduct giving rise to the indictment. Gilmore v. State, 44 S.W.3d 92, 97 (Tex.App.-Beaumont 2001, pet. ref'd); see Young v. State, 991 S.W.2d 835, 838-39 (Tex.Crim.App. 1999). Here, Solorzano did not admit committing the offense alleged in the indictment, that is, aggravated assault with a deadly weapon, to wit, a pipe. Instead, Solorzano denied hitting Rodriguez with a pipe. Thus, the trial court did not err in refusing an instruction on self defense. We overrule Solorzano's first issue.

Lesser-Included Offense Instruction

In his second issue, Solorzano argues that the trial court erred in refusing an instruction on the lesser-included offense of assault. We disagree. To determine whether a charge on a lesser-included offense should be given, we apply a two-prong test. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002). We must first decide whether the offense is actually a lesser-included offense of the offense charged. Id. Second, we determine whether there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. Article 37.09 of the Texas Code of Criminal Procedure sets forth the test for determining whether an offense is a lesser-included offense of the offense charged: An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). When we review a trial court's decision to deny the requested instruction, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). More specifically, we examine the statutory elements of the charged offense as modified by the indictment. Id. Then, we examine the elements of the offense claimed to be a lesser-included offense to see if the elements are functionally the same as or less than those required to prove the charged offense. Id. Finally, we examine the evidence actually presented to prove the elements of the charged offense to see if that proof also shows the lesser-included offense. Id. at 478-79. The indictment in this case charged Solorzano as follows:

. . . did then and there intentionally and knowingly use a deadly weapon, to-wit: a pipe, that in the manner of its use and intended use was capable of causing death and serious bodily injury and did then and there intentionally and knowingly cause bodily injury to Luis Rodriguez by hitting the said Luis Rodriguez on the head and arms with the pipe.

In a case factually similar to this one, the Texas Court of Criminal Appeals recently considered whether a defendant is entitled to an instruction on the lesser-included offense of assault where the conduct establishing the lesser-included offense was not included within the conduct charged. See Irving v. State, No. PD-91-04, 2005 WL 957189 (Tex.Crim.App. Apr. 27, 2005). In Irving, the defendant was charged with aggravated assault by using a deadly weapon, to wit: a bat. Id. at *1. Although there was evidence that the defendant hit the victim with a baseball bat, the defendant denied striking the victim with the bat, but admitted to a physical struggle with the victim. Id. The court of criminal appeals noted that simple assault may be a lesser-included offense of aggravated assault in some cases; however, where the defendant asks for an instruction on a lesser-included offense based on facts not required to establish the commission of the offense charged, he is not entitled to an instruction on the lesser-included offense. Id. at *2. While the indictment charged the defendant with committing aggravated assault against the victim by attacking the victim with a deadly weapon, to wit, a baseball bat, the defendant was asking for an instruction for the offense of simple assault resulting from hitting the victim with his fists. Id. at *3. Because the conduct constituting the lesser-included offense for which the defendant requested an instruction was different from the conduct alleged in the indictment, the defendant was not entitled to an instruction on the lesser-included offense. Id. We conclude, for the reasons set forth in Irving, that Solorzano was not entitled to a lesser included offense instruction. The conduct establishing the lesser offense (the physical altercation Solorzano admitted to) was not included within the facts required to proved the charged offense of aggravated assault (hitting Rodriguez with a pipe). Therefore, Solorzano's second issue on appeal is overruled.

Factual sufficiency

In his third issue, Solorzano urges the evidence was factually insufficient to support his conviction of aggravated assault. We disagree. In conducting a factual sufficiency review of the evidence, we ask one question: Considering 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 (Tex.Crim.App. 2004). Unless the available record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor of the witnesses' testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Here, ample evidence supports the jury's verdict that Solorzano committed an aggravated assault on Rodriguez by using a deadly weapon, a pipe. There is evidence that the pipe, which was admitted into evidence, could be used as a deadly weapon. Officer Santiago testified that Rodriguez told him that Solorzano had hit him with a pipe, and Rodriguez even pointed out the pipe to Santiago. In his written statement to the police, Rodriguez stated again that Solorzano had hit him with a pipe. Although Baeza testified at trial that he did not see Solorzano hit Rodriguez, he did say in his statement to the police that he had seen Solorzano hit Rodriguez. He also stated that he saw Solorzano on top of Rodriguez, and they were both holding on to the pipe. When Solorzano ran off, Baeza said Rodriguez was bleeding from the head. The evidence tending to disprove Solorzano committed aggravated assault on Rodriguez mainly consists of Rodriguez's testimony at trial which is at odds with the oral and written statements he originally gave to the police and Solorzano's testimony. At trial, Rodriguez was unsure whether he or Solorzano picked up the pipe first. He stated that during the altercation, they hit each other with the pipe. And, he testified that because everything happened so fast, he could not say whether Solorzano hit him with the pipe or not. He also testified that he never pointed out the pipe to the police officer. Soloarzano testified that he did not hit Rodriguez with a pipe and that he did not know how Rodriguez sustained his head wound. Also, Baeza testified at trial that he did not see Solorzano hit Rodriguez. As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their tesimony the jury may believe or disbelieve all or any part of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). Where the evidence conflicts, the jury's verdict is generally regarded as conclusive. VanZandt v. State, 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd). Thus, the jury could believe Officer Santiago's testimony and the statements he took from Rodriguez at the time of the occurrence indicating that Solorzano hit Rodriguez with the pipe or they could have believed Rodriguez's and Solorzano's trial testimony that Solorzano did not hit Rodriguez with the pipe. They chose to believe the former which supports the jury's finding that Solorzano committed aggravated assault by hitting Rodriguez with a pipe. Therefore, the evidence was factually sufficient to support the jury's verdict. We overrule Solorzano's third issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.