Camacho v. State

Full title: RENE CAMACHO, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Mar 11, 2004

No. 01-03-00348-CR (Tex. App. Mar. 11, 2004)

Opinion

No. 01-03-00348-CR.

Opinion Issued March 11, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.4.

On Appeal from the 337th District Court Harris County, Texas, Trial Court Cause No. 901280.

Panel consists of Justices NUCHIA, JENNINGS, and KEYES.

MEMORANDUM OPINION

EVELYN V. KEYES Justice.

A jury found appellant, Rene Camacho, guilty of aggravated assault, and, after appellant pleaded true to the allegations in two enhancement paragraphs, assessed punishment at 50 years' confinement. In three points of error, appellant contends that (1) the trial court erred in overruling his objection to the State's jury argument, which provided an incorrect statement of the law, and (2) the evidence was legally and factually insufficient because the State never rebutted his assertion of self-defense beyond a reasonable doubt. We affirm.

Facts

On August 25, 2001, Gerardo Franco, Daniel Ron, Jose Resendez, and the complainant, Mario Aguilar, were at the 7427 Longview residence of Frederick Resendez when a car containing appellant and at least two other males and a female arrived at Resendez's residence. Appellant engaged in a fistfight with Ron, which ended after appellant's two male companions stepped out of their car with guns. The complainant, who had watched the fistfight, testified that, believing everything had calmed down, he went to his car to get another beer. He noted that, when appellant saw him walk to his car, appellant asked, "Are you going to get a gun or what?" After the complainant said "no," appellant shot him several times. The complainant was rendered unconscious after the first bullet struck him. The complainant acknowledged that he told officers that appellant probably assumed he was getting a gun, but he noted that, when appellant asked him whether he was getting a gun, he said he was not. Franco testified that the complainant was walking to his car when appellant asked the complainant if he was reaching for a gun. Appellant then began shooting before the complainant could respond. Ron testified that the complainant went to the car to get a beer and that as soon as he came out of the car with a beer in his hand, appellant shot him. Ron did not recall whether or not the complainant or appellant said anything to each other. Appellant testified that he shot the complainant in self-defense. He asserted that, after his fistfight with Ron, Ron told the complainant to get the gun from the car. When appellant turned around, he saw the complainant going to his car, so he reached for a weapon from one of his companions and fired at the complainant. Appellant testified that he saw the complainant reaching inside the car, as if to reach under the seat, and so he shot the complainant because the complainant was going to shoot him. Appellant acknowledged that the complainant never had an opportunity to draw a gun.

Jury Argument

In his first point of error, appellant argues that the trial court erred in overruling his objection to the State's jury argument at the guilt/innocence stage of the trial "where the argument was an incorrect statement of the law." The complained of argument is as follows:

State: Because when it starts to hurt him, he's changing — he's telling a different story. Before you get to self-defense — you don't even consider self-defense if you don't believe him because nobody else —

Appellant: Your Honor, I object to that because the jury has a right to believe all the evidence and testimony also.

Court: It's overruled. Ladies and gentlemen of the jury, you are the exclusive judges of the facts proved, of the credibility of the witnesses, and the weight to be given their testimony.

State: Like I said, if you don't believe it, you don't believe him, there's no reason to even consider self-defense. . . .

Appellant contends that the State's argument was an incorrect statement of law because "it was for the jury to decide whether to believe or disbelieve that the appellant thought that the complainant was reaching for a firearm at the time of the shooting." The law provides for and presumes a fair trial free from improper argument by the State. Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991). In general, proper jury argument encompasses one of the following: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to the opposing counsel's argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999) ; Sandoval v. State, 52 S.W.3d 851, 857 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). To determine whether a party's argument properly falls within one of these categories, we must consider the argument in light of the entire record. Sandoval, 52 S.W.3d at 857. In most cases, if error occurs, an instruction to disregard will cure any error committed. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim. App. 1996). In the present case, appellant misconstrues the State's argument. The State did not state or imply that the jury could not consider all of the evidence and testimony or that it could not decide for itself whether to believe or disbelieve appellant. Rather, the State made a reasonable deduction from the evidence. Appellant was the only witness to testify about self-defense. The State correctly noted that if the jury did not believe appellant, then they could not even consider his self-defense theory. The jury had to believe something appellant said concerning self-defense before it could even consider the theory. Therefore, the trial court did not err in overruling appellant's objection to the State's closing argument. We overrule appellant's first point of error.

Sufficiency of the Evidence

In his second and third points of error, appellant argues that the evidence was legally and factually insufficient to support his conviction because the State never rebutted his assertion of self-defense beyond a reasonable doubt. Appellant does not challenge the sufficiency of the evidence as to the elements of aggravated assault. Rather, he claims that a rational trier of fact could not have concluded that the State had rebutted his assertion of self-defense beyond a reasonable doubt, and, therefore, the evidence to support his conviction was insufficient. In resolving the legal sufficiency of the evidence, we look not to whether the State presented evidence that refuted appellant's self-defense testimony, but rather to whether, after viewing all the evidence in the light most favorable to the verdict, any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt.¹ King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the fact finder. Id. Similarly, in addressing factual sufficiency of the evidence, we view the evidence in a neutral light and ask whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). Contrary to appellant's assertion, the State is not required to rebut self-defense beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Self-defense is an affirmative defense that permits a person to use "force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31 (Vernon 2003). To rebut a self-defense claim, the State bears only a burden of persuasion, not a burden of production of evidence. Saxton, 804 S.W.2d at 912-14 (defendant bears burden of producing evidence raising self-defense; State bears burden of persuasion on the issue). The issue of self-defense is an issue of fact for the jury. Id. A verdict of guilty is an implicit rejection of self-defense. Id. In the present case, appellant admitted he assaulted the complainant with a deadly weapon, but claimed he did so in self-defense. He was the only witness who testified to his shooting the complainant in self-defense. The testimony of the State's witnesses, Franco, Ron, and the complainant, confirmed that appellant shot the complainant with a gun, but their testimony, although differing somewhat in detail, uniformly contradicted appellant's self-defense theory. Based on this testimony, the jury found that appellant committed the offense of aggravated assault, implicitly rejecting his defense of self-defense. Viewing the evidence in the light most favorable to the verdict, as required to determine legal sufficiency, we hold that a rational fact-finder could have found the essential elements of the offense of aggravated assault beyond a reasonable doubt and that it could have implicitly rejected appellant's contention of self-defense. As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, a jury may believe or disbelieve all or any part of a witness's testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997); McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App.-Houston [1st Dist.] 2002, no pet.). We will not substitute our judgment for that of the fact finder. Accordingly, we hold that the evidence was legally sufficient to support appellant's conviction. Reviewing the evidence in a neutral light, as required to determine factual sufficiency, we find that the jury's conclusion that appellant committed the offense of aggravated assault and did not act in self-defense is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Appellant presented the only testimony supporting self-defense, and the jury was not obligated to believe him. Cain, 958 S.W.2d at 408-09. We hold, therefore, that the evidence was factually sufficient to support appellant's conviction. We overrule appellant's second and third points of error.

Conclusion

We affirm the judgment of the trial court.