No. 05-08-00906-CR
Opinion Filed April 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-63972-M.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
Opinion By Justice LANG-MIERS.
The State charged appellant, Manuel Bandelo Barboza, with the murder of Juan Rivas. The jury convicted appellant of the lesser included offense of manslaughter and found that appellant used or exhibited a deadly weapon during the commission of the offense. The trial court sentenced appellant to twenty years in prison. On appeal, appellant argues that the evidence is legally and factually insufficient to support the jury's finding that he recklessly caused Rivas's death. We affirm.
Background
The evidence shows that appellant, his brother Juan Barboza, and Rivas were friends and lived in the same house. In March 2006, appellant, Juan, appellant's older brother Ignacio, also known as Nacho, their friend Isidro, Rivas, and their wives and children were gathered at appellant's house grilling fajitas. Appellant, Rivas, Nacho, Juan, and Isidro were outside listening to music and talking while the others were inside. Nacho and Rivas were standing near each other, talking. A few minutes after everyone had gathered, appellant took a gun from his pocket and fired it into the air. Nacho said that this was not unusual, and appellant's wife testified that "it was something [appellant] always did." No one thought much about the incident. A few seconds later, they heard a second gunshot. Nacho "felt the air over [his] body" from the bullet and saw Rivas fall instantly dead. Nacho became angry at appellant and asked him why he had shot Rivas. Appellant did not reply. Nacho continued to ask appellant why he had shot Rivas; he was also concerned that the bullet may have been intended for him. Appellant told Nacho that if he "didn't get out of the way, [appellant] was going to do the same thing to" Nacho. Appellant also told Nacho, "You know why, because he stole from me . . . the problem was not with you, it was with [Rivas]." Nacho testified that he knew appellant sometimes carried a gun, but not with the intention of hurting anyone. But he also testified that he did not believe the shooting was an accident. The evidence showed that appellant and Rivas had not argued or even talked to each other before appellant shot him. After the shooting, appellant walked into the house and told his wife, "Let's go, let's go." When she asked him why he killed Rivas, he said, "You know why." She testified that she did not know why. Appellant left the house before the police arrived. Dallas Police Officer Austin McAvoy testified that when he arrived at the house, he saw Rivas lying in the yard with his hands in his pockets and his feet crossed, as though "he didn't see what was coming." He had one gunshot wound to the head. The medical examiner testified that the bullet damaged the brain stem and Rivas could have died within seconds. When the police caught appellant about eight days later, appellant told them different accounts of the incident. He told them that he and Rivas had fought, that he was scared of Rivas, and that he thought Rivas had a gun. He also told the police that he had always had problems with Rivas and that Rivas had threatened him. Then he told the police that he was just trying to scare Rivas. At trial, appellant testified that all of the versions of the incident that he told the police were lies because a friend told him what to say if he got caught. He testified that he purchased the gun at a flea market and did not think it was dangerous because it was so small (it looked like a toy cigarette lighter). He said that he had to be careful not to accidentally discharge the gun because the trigger area was so small, and that he considered it "like a BB gun or pellet gun." He also testified that he always kept the gun loaded. He denied intentionally shooting Rivas and said that the gun accidentally discharged as he was removing it from his pocket and before he could raise it "all the way up." Appellant also denied telling Nacho and his wife why he shot Rivas. Standard of Review
We review a challenge to the legal sufficiency of the evidence under well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). We view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt. Lane, 151 S.W.3d at 191-92 (citing Jackson, 443 U.S. at 319). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 283; Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). The record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury's verdict. See id. The jury has the responsibility to resolve conflicts in the evidence, weigh the evidence, and draw reasonable inferences from the evidence. Threadgill v. State, 146 S.W.3d 654, 653 (Tex.Crim.App. 2004). We measure the elements of the offense as defined in a hypothetically correct jury charge for the case. Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App. 2008). Discussion
A person commits the offense of manslaughter if he recklessly causes the death of an individual. Tex. Penal Code Ann. § 19.04 (Vernon 2003). Manslaughter is a result-oriented offense. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003). Consequently, the definition of the culpable mental state is limited to the result of the conduct. See id. A person acts recklessly, or is reckless, with respect to the result of his conduct when he is aware of but consciously disregards a substantial and justifiable risk that the result will occur. Tex. Penal Code Ann. § 6.03(c) (Vernon 2003). 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. Id. Appellant's legal and factual insufficiency challenges concern only whether the evidence supports the jury's finding of recklessness. Proof of recklessness generally relies on circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. [Panel Op.] 1978). We review all of the circumstances showing the defendant's mental state and awareness of risk of harm or death. Sadler v. State, 728 S.W.2d 829, 831 (Tex.App.-Dallas 1987, no pet.) (op. on reh'g) (citing Thomas v. State, 699 S.W.2d 845, 850-51 (Tex.Crim.App. 1985)). The issue here is whether the jury could infer, given all the circumstances, that appellant was aware of, but consciously disregarded, the risk created by his conduct. See id. Appellant argues that the evidence is legally and factually insufficient to prove he acted recklessly because the evidence showed that it was commonplace for people in his neighborhood to shoot a gun into the air for the cultural purpose of celebrating. He argues that the State of Texas recognizes a "cultural purpose" defense in the context of the criminal law, citing Mendez v. State, 94 Tex. Crim. 272, 250 S.W. 680 (1923). Appellant's reliance on Mendez is misplaced. In that case, Mendez was charged with unlawfully carrying a pistol after he discharged it while celebrating New Year's Eve. The issue was whether Mendez discharged the pistol on his own property, which was not a crime in 1923, or on public property, not whether Mendez could lawfully discharge the pistol as part of a cultural celebration. See id. 94 Tex. Crim. at 272-73, 250 S.W. at 680. The penal code establishes the only defenses and affirmative defenses to prosecution. See Tex. Penal Code Ann. §§ 2.03-.04, 8.01-.07, 9.01-.63 (Vernon 2003 Supp. 2008); Walters v. State, 247 S.W.3d 204, 211-12 (Tex.Crim.App. 2007). And there is no provision for a "cultural purpose" defense. The jury could have rationally inferred that appellant was aware of the risk that a loaded firearm could cause injury or death from appellant's testimony that he knew the gun could discharge accidentally and that he had to be careful to make sure it did not. The jury also could have rationally inferred that appellant disregarded the risk by carrying the loaded gun to the gathering, knowing that it could accidentally discharge, and firing it in an attempt to scare Rivas. "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 the conduct and disregards the risk." Sadler, 728 S.W.2d at 831 (quoting Thomas, 699 S.W.2d at 850). Additionally, the jury could have inferred from appellant's actions after the shooting that appellant was aware of the risk of his conduct and disregarded it: he left the house before the police arrived; he "moved around" in an attempt to avoid the police and was not caught until eight days later; and he lied to the police about what happened. As we have stated, "firearms are dangerous instrumentalities, and . . . their very purpose is to kill or injure should the necessity arise. It is mandatory that they be handled at all times with great care and the failure to do so may be legitimately viewed by the trier of the fact as `a gross deviation from the standard of care that an ordinary person would exercise.'" Id. at 832 (citing Tex. Penal Code Ann. § 6.03(c) (Vernon 1974)). We conclude that the evidence is legally and factually sufficient to show that appellant acted recklessly. We resolve appellant's two issues against him. Conclusion
We affirm the trial court's judgment.