Opinion
No. 05-02-01394-CR
Opinion Filed October 14, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F99-52778-V. AFFIRM
Before Justices MORRIS, FITZGERALD, and LANG.
OPINION
Mario Casares appeals his conviction for the murder of Carlos Barrerra. In four related points of error, appellant argues the trial court wrongfully refused to submit a self-defense instruction to the jury. For the reasons that follow, we affirm the trial court's judgment. Appellant had an affair with Marina Montes. They lived in the same apartment building: Marina, her mother, and her brother Carlos lived upstairs from appellant, his wife Maria, and their three children. Toward the end of the affair and after it ended, relationships among appellant's family members and Marina's family members grew hostile. Over a period of approximately one year, various members of the two families engaged in name calling, pushing and fistfights, obscene gestures and phone calls, and various other unpleasantries. On the day of the murder, appellant and his brother, Jaime Quintero, arrived at appellant's home and found Maria upset by yet another confrontation. Maria reported that Marina and others were calling her on the telephone and "saying cuss words" to her. Appellant's brother went upstairs, and appellant followed. Appellant testified he "went out to go upstairs and talk with Carlos and Marina and her mother to talk about this." Appellant's version of the confrontation in the apartment differs sharply from the women's version. Appellant testified that he arrived at the apartment, found Jaime speaking to Marina and her mother, and saw Carlos on a sofa across the room watching television. Appellant joined the conversation, encouraging Marina and her family to try and solve the problem of their bothering his wife and children. The conversation was heated, and appellant described "a lot of tension." Carlos got up off the sofa abruptly, told appellant he was going to kill him, and made a movement that appellant perceived as an attempt to reach a weapon. Appellant testified he feared for his life. Appellant pulled out the handgun he had tucked in his pants under his shirt, and he shot once. (On cross-examination, appellant conceded he was carrying the gun unlawfully.) The two men struggled as Carlos tried to wrestle the gun from appellant, and in the struggle more shots were fired. Carlos fell to the floor, and appellant and Jaime fled. According to Marina, appellant and Jaime knocked and then pushed their way into the apartment with guns drawn. Marina screamed and Carlos got up off the sofa. Jaime pointed his gun at Marina and her mother. Appellant said nothing but began firing at Carlos. Appellant fired a number of times, aiming at Carlos's stomach and head. When Marina tried to reach Carlos, appellant pushed her and held a gun on her. Carlos got up and began to struggle with Jaime, and more shots were fired. Jaime pushed Carlos to the floor, and then Jaime and appellant both fired at Carlos again. As appellant and Jaime left the apartment, Maria was waiting for them outside the door. Marina's mother described the confrontation just as Marina did. In the end, Carlos died from his wounds. He had been shot six times. He had not been armed. When testimony was concluded at trial, appellant requested the jury be charged on self- defense. Appellant conceded that the provisions of Texas's "carrying the gun to the discussion" provision of the penal code had been implicated by the testimony. See Williams v. State, 35 S.W.3d 783, 786 (Tex.App.-Beaumont 2001, pet. ref'd). That provision states: The use of force against another is not justified:
. . . .
(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02.Tex. Pen. Code Ann. § 9.31(b)(5)(A) (Vernon 2004). Section 46.02, in turn, provides:
A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.Id. § 46.02(a). Appellant suggested the court give the jury the general self-defense instruction, followed by a limiting instruction based on section 9.31. The State objected, arguing that the provisions of section 9.31(b)(5) had been established as a matter of law, thus barring a self-defense instruction. The trial court agreed and denied the instruction. The jury found appellant guilty of murder, and he was sentenced to forty years' imprisonment. He appeals based on the denial of the self-defense instruction. A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence. Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001). He is entitled to the instruction "whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Id. In reviewing a trial court's decision not to give a requested self-defense instruction, we view the evidence in the light most favorable to the defendant. Id. The penal code provides that "a person is justified in using 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. Pen. Code Ann. § 9.31(a) (Vernon 2003). However, there are limits to this justification within the self-defense statute itself. One such limitation pronounces that force against another is not justified, when the actor unlawfully carries a weapon with him while seeking an explanation from or discussion with the person against whom he acted concerning their differences. Id. § 9.31(b)(5). The State argues appellant was not entitled to a self-defense instruction because appellant's conduct falls within section 9.31(b)(5) as a matter of law. Appellant argues that self-defense and the statutory exceptions to self-defense are fact questions for the jury. Often, that is the case. However, when the evidence establishes as a matter of law that force was not justified, then a self-defense instruction is barred. Williams, 35 S.W.3d at 786. Appellant argues initially that there was no evidence appellant sought an explanation with Carlos, the person against whom he used the force. However, appellant testified that "[w]hen my brother went out, after about a minute I also went out to go upstairs and talk with Carlos and Marina and her mother about this." (Emphasis added.) Appellant next argues he had no disagreement with Carlos. But Maria testified to instances in which she suffered harassment at the hands of Carlos as well as the women in his family. She testified, for example, that Carlos made obscene gestures toward her. Indeed, she stated that whenever she saw Carlos, she would have a problem. And she testified she told appellant on the evening of the shooting that if he did not do something about the harassment, she was prepared to leave him. There is sufficient evidence that appellant had "differences" with Carlos. Finally, appellant admitted during his testimony that he was carrying a handgun unlawfully. We conclude the self-defense limitation found in section 9.31(b)(5) was established as a matter of law. Accordingly, appellant was not entitled to a self-defense instruction. See Williams, 35 S.W.3d at 787. We overrule appellant's points of error, and we affirm the judgment of the trial court.
Both Marina and her mother testified at trial. Jaime was apparently out of the country at the time of trial.
Appellant actually proposed two versions of the limiting instruction, one emphasizing that the section 9.31(b)(5) explanation must be sought from the victim himself and — when that was denied — one that appeared to allow the explanation to be sought from anyone. The latter instruction was denied as well.