Gomez v. State

Full title: MIGUEL GOMEZ, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 10, 2006

No. 05-04-01272-CR (Tex. App. Jan. 10, 2006)

Opinion

No. 05-04-01272-CR

Opinion issued January 10, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-58729-VW. Affirmed.

Before Chief Justice THOMAS and Justices WRIGHT and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.

In Miguel Gomez's appeal from his jury conviction for murder, we must decide whether the trial court reversibly erred by including a "provoking the difficulty" instruction in the court's charge to the jury, the effect of which was to limit the self-defense instruction. Concluding the trial court did not err by giving such instruction, we affirm.

Background

Appellant was charged with the murder of Aaron Ansley by shooting him in the chest with a rifle. The shooting occurred in the early morning hours following a party in appellant's apartment. Appellant had a former two-year relationship with Julie Rios. Appellant was twenty-seven years old. Even though appellant and Rios had broken up, they continued to see each other off and on. Rios still had a key to appellant's apartment. Rios had recently told appellant she had a "makeout session" with someone named Aaron. Rios came to the party with her cousin, Joel Vela, Jr., and his best friend, Aaron Ansley. Rios and Ansley had formed a relationship after her breakup with appellant. However, during the party, Rios and appellant "acted like they were a couple," spending most of their time together. Both Rios and Ansley were "under age." Nevertheless, everyone at the party was drinking beer and tequila, and some were using marijuana. Vela testified he and Ansley got "pretty wasted," and Ansley got a little "rowdy and cocky." However, Vela seemed able to control Ansley. Appellant drank a six-pack of beer and several shots of tequila. He also took a Xanax anti-depressant and smoked some joints of marijuana and a "blunt," which is a cigar containing marijuana. Appellant testified he was not very drunk, however, because he has a "high tolerance." After many of the guests had left the party, appellant, Vela, and Ansley began to talk about how they would act in a fight. One of them said he would never back down from a fight. Appellant and Ansley stood up simultaneously, and appellant asked if Ansley wanted to fight. Ansley replied, "Yes." Rios and Vela intervened and calmed the situation. But, just as the confrontation seemed to be ending, Ansley made a comment to appellant.² Appellant replied, "What?" and ran into his bedroom. Ansley began to hit the pantry door and punch the walls, causing significant damage. Appellant soon emerged holding a rifle, which he pointed at Ansley, who was several feet away. Appellant asked, "Is this what you wanted?" Ansley, who was unarmed, began to walk toward appellant in an angry, drunken manner, making grunting noises. Appellant fired a shot over Ansley's head. Ansley, with his hands at his sides, continued to walk toward appellant. Appellant then shot Ansley in the chest, and Ansley fell over in the entryway. When someone asked appellant why he shot Ansley, appellant said, "I don't know I'm fucked up."³ Vela and appellant dragged Ansley's body outside by the car. The police soon arrived, in response to a 911 call made by appellant's neighbors.⁴ When the police went to the apartment from which the 911 call had been made, they learned the shooting had occurred next door. When the police got back downstairs, they saw appellant standing over Ansley, and Vela standing nearby. Ansley was unresponsive to any stimulus. Appellant was crying, heavily intoxicated, and having difficulty speaking. The police asked appellant what had happened. Appellant said Ansley had come outside and was talking to a man about purchasing some marijuana. The man shot Ansley, took his money, and ran. Appellant described the man as a black male in his twenties. The police noticed discrepancies between appellant's version and the physical evidence. When confronted about the discrepancies, appellant was not able to explain them. Appellant and Vela were questioned separately. Each accused the other of doing the shooting. The police found blood and a .22-caliber rifle in an open closet in appellant's apartment. Gabriel Pena, a guest at the party, testified for the defense. Pena testified that appellant was not drunk, and that Ansley seemed a little more intoxicated than everyone else. Pena said Ansley had to be calmed down several times during the evening. However, Vela seemed able to calm him down. Pena described Ansley as being loud, drunk, aggressive, and offensive. Pena did not see or hear Ansley threaten anyone, and he did not sense appellant was in danger from Ansley. Another guest, Juan "Twin" Ramos, testified that Ansley was loud and aggressive. Ramos described Ansley as being "a typical, drunk 19-year-old kid." However, Ramos did not see Ansley threaten anyone, and, when Ramos left, he did not perceive appellant as being in any danger. Appellant's sister, Dorothy Reyes, testified that Ansley seemed a little aggressive toward other people. Appellant and Rios "acted as if they were a couple." Rios denied to Reyes that Ansley was her boyfriend. Reyes opined that Ansley was "showing off for his girlfriend." Appellant testified that the shooting incident began after most of the guests had left. He and Ansley were playing a game called "get the quarter out of my hand." Sitting opposite each other, the two men got into a face-to-face argument when Ansley wanted to arm wrestle after appellant told him it was late. Appellant then asked Ansley, "Do you want to fight me?" Ansley responded, "Yeah, it's whatever." Appellant said he then pushed Ansley in the face with an open hand and told him to "Get the fuck out of here." Appellant said Vela grabbed him and said "let me get him." Rios got between appellant and Ansley. When Vela did not grab Ansley, appellant jumped over the coffee table, pushed Ansley, and said "Get outta [sic] my girl's face." Rios grabbed appellant's arm. Appellant said Vela's hands "balled up." Appellant told Vela, "It's like that? It's like that?" Appellant "took it" that Vela and Ansley were both against him. Appellant then said, "You don't want to leave, I got something for you." Appellant then went to get his gun. Within fifteen seconds, after making sure there was a round in the chamber, appellant returned and fired a shot over Ansley's head to "get his attention." Appellant then asked Ansley, "Is this what you want? Is this what you want?" Ansley started walking toward him and said, "It's whatever." The expression on Ansley's face told appellant that Ansley was going to grab the gun. Appellant testified he was thinking, "It's either him or me." The only thing Ansley said was, "it's whatever," and he "put his hands down and started walking towards me." After appellant fired the second shot, Ansley said, "You shot me." Appellant replied, "did you think I was playing?" Appellant did not think a .22-caliber bullet would do damage to Ansley that was "mortal or death." Appellant asked Vela to help him get Ansley to a hospital. When Vela asked him why appellant shot Ansley, appellant replied, he had "messed up." Appellant and Vela dragged Ansley downstairs and ran into the police. Appellant told the police "his friend" had been shot. Appellant conceded he was the first person to talk about a fight that night; no one threatened him with a weapon or threatened to fight him, and when he returned with the rifle, he was blocking the only exit to the apartment. Appellant did testify that Ansley was lunging at him to hit him. On rebuttal, Dallas Homicide Detective Randy Laboda testified he had read appellant the Miranda rights and took a written statement from appellant. At no point during the interview did appellant say he acted in self-defense, that he was afraid of Ansley, or that he shot Ansley because Ansley was destroying appellant's property. Appellant's explanation for shooting Ansley was that "they had been drinking all night long, he had been taking some Xanax, and they had been arguing all night long, basically, over, I guess, who was the bravest or who was the toughest or who would be the first to back down." Appellant explained that "it was two guys arguing in front of a mutual girlfriend." Appellant's December 23, 2003 voluntary statement was admitted into evidence at trial. It reads, in relevant part:

We were in my apartment and we'd been drinking all night. I took a "Zanex" [sic] and it make [sic] me even drunker. Me and this guy got into several arguments. I never met the guy before tonight. We calmed down 3 or 4 times. We got into another argument. The dude was getting into Julie's face: Joel was trying to get the dude to back off and he got mad. I said, "ok[,]" and went back into the bedroom and got the gun. I came back out, showed him the gun and asked him, "Ok, is this what you wanted?" He saw the gun and didn't back down. He started walking toward me so I fired a round in the air over his head just to calm him down. He just kept coming so I fired a second round into his body. After that he said "You shot me," and I said "I know I did." Joel and I grabbed him and we were taking him to the hospital. I know that I messed up. I really didn't want this dude to get messed up. It's just the booze and staying up all night long.

The jury found appellant guilty of murder. After hearing victim impact testimony from Ansley's mother and grandparents and defense testimony from appellant and his sister, the jury assessed appellant's punishment at twenty-five years' imprisonment.

Applicable Law

In reviewing claims of jury charge error, we must first determine whether the trial court erred in giving the complained-of instruction. See Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003); Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App. 1998). If we conclude the trial court erred, we must determine whether the error was harmful. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Which harm analysis applies depends on whether appellant timely objected to the charge. See id. If a timely objection is made, reversal is required if the error was "calculated to injure [the] rights of the defendant." See id.; see also Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). In other words, reversal is required if the error resulted in some harm to the appellant. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). "Some" harm means "any" harm. See id. If no objection is made, we review the record to determine if appellant suffered egregious harm. See Almanza, 686 S.W.2d at 171. Provocation as a limitation on self-defense is set out in the penal code. See Tex. Pen. Code Ann. § 9.31(b)(1), (4) (Vernon 2003). The statute provides that "the use of force against another is not justified in response to verbal provocation alone." Id. § 9.31(b)(1). Further, the use of force against another is not justified "if the actor provoked the other's use or attempted use of unlawful force, unless":

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor.

Id. § 9.31(b)(4). A charge on provocation is required when there is sufficient evidence in the record that: (1) the defendant did some act or used some word which provoked the attack on him; (2) such act or word was reasonably calculated to provoke the attack; and (3) the act done or word spoken was used for the purpose and with the intent that the appellant would have a pretext for inflicting harm upon others. Smith v. State, 965 S.W.2d 509, 513 (Tex.Crim.App. 1998). All of the elements are questions of fact. Id. We review the evidence in the light most favorable to giving the charge to determine whether there is evidence from which a rational jury could find each element of provocation beyond a reasonable doubt. See id. at 514-15.

Analysis

Appellant contends the trial court reversibly erred in granting the State's request for a "provoking the difficulty" charge, over his objection, as a limitation on appellant's right to self-defense.⁵ Appellant contends there is no evidence he initiated the altercation. Instead, he argues that regardless of whether the "difficulty" is narrowly defined as only the argument between appellant and Ansley that occurred after most of the guests had left or broadly defined as the entire course of events during the evening, the evidence shows Ansley provoked the difficulty by acting in an aggressive manner toward appellant and refusing to leave the apartment. Appellant contends that Ansley was shot when he attempted to grab the rifle from appellant's hands. The State responds that the provocation instruction was properly given under the evidence presented. Alternatively, the State contends, any error was harmless. The State asserts that appellant was not entitled to a self-defense charge under the evidence presented; therefore, he could not have been harmed by any limitation on a defense to which he was not entitled. It is neither our responsibility nor our role to decide if the evidence actually established that appellant provoked the difficulty with the intent to harm Ansley. Rather, if the evidence is sufficient for submission of the issue to the jury, that question is properly within the province of the jury in its role as judge of credibility and finder of facts. Having reviewed the evidence under the appropriate standards, we conclude there was sufficient evidence in the record to warrant including the provocation instruction in the jury charge. Therefore, the trial court did not err in submitting the provocation instruction to the jury in limitation of appellant's self-defense instruction. Because there was no error, appellant suffered no harm. We overrule appellant's issue. We affirm the trial court's judgment.