Opinion
No. 07-19-00368-CR
08-03-2020
LIONEL HERRERA, APPELLANT v. STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court of Potter County, Texas
Trial Court No. 077069-A-CR , Honorable Dan L. Schaap, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Lionel Herrera appeals from the judgment by which he was convicted of two counts of assaulting a family member. We affirm.
Issues One through Four
Appellant's first four issues concern a venire member who eventually sat on the jury. He worked for "Potter County" as a jailer and knew of appellant due to the latter's incarceration in the local jail. This circumstance purportedly warranted the venire member's removal from the panel. As appellant argues, "[i]n the instant case a jailer who had contact with Appellant was on the venire panel and tainted the venire. The venireman was not dismissed. No mistrial was declared. No curative instruction was given. In fact, Appellant's captor eventually served on his jury." Consequently, appellant allegedly was denied a fair trial. We overrule the issues.
Regarding the denial of appellant's challenge for cause, the complaint was not preserved for review. Preservation required him to 1) make his challenges for cause, 2) use his peremptory strikes on the complained-of venire members, 3) exhaust all his peremptory strikes, 4) request and be denied additional peremptory strikes, and 5) identify the objectionable jurors who sat on the jury. Spielbauer v. State, 597 S.W.3d 516, 524-25 (Tex. App.—Amarillo 2020, pet. granted); Castro v. State, No. 05-18-01123-CR, 2019 Tex. App. LEXIS 6200, at *5 (Tex. App.—Dallas July 19, 2019, no pet.) (mem. op., not designated for publication). That the venire member sat on the jury illustrates appellant failed to satisfy the second requirement.
Regarding the denial of his motion for mistrial, appellant below said the following: "My motion is for a mistrial . . . he [the venire member] indicated that he knew him from work and said it was Potter County . . . I'm going to have some questions to ask him in front of the panel as well, and it's become apparent where he works"; "[i]t's improper that the entire panel know that he's in jail awaiting trial"; "[h]e said he knew him from Potter County"; and "[t]o me that was clear that he was in the jail." He pursued that same theme here when arguing that the venire member said "he knew Appellant from the jail where he worked . . . [which] is tantamount to having an accused appear in jail clothing shackled in front of the jury." This created a "danger of possible impairment of the presumption of innocence so basic to the adversary system." So, the substance of this complaint encompasses concern about the entire jury knowing appellant sat in jail pending and during trial. Yet, missing from appellant's argument is citation to circumstances in the record illustrating that they had such knowledge.
During voir dire, the venire member revealed he worked for "Potter County." But, we were not cited to any passage indicating that he disclosed to the venire the specific department in which he worked or that he worked at the jail. See In re Marriage of Rampley, No. 07-15-00426-CV, 2016 Tex. App. LEXIS 12307, at *2-3 (Tex. App.—Amarillo Nov. 16, 2016, no pet.) (per curiam) (mem. op.) (stating that the burden lies with the appellant to direct the reviewing court to evidence supporting his position and the reviewing court has no obligation to search the record sua sponte for such evidence). Nor did appellant cite us to anything indicating that the mere allusion to "Potter County" is commonly interpreted as meaning the jail. Indeed, we can judicially notice that Potter County operates more than one department and employs individuals in jobs outside the county jail. See Foster v. State, No. 10-08-00170-CR, 2010 Tex. App. LEXIS 1907, at *11 n.1 (Tex. App.—Waco Mar. 10, 2010, no pet.) (mem. op., not designated for publication) (stating that judicial notice on appeal should be taken, if at all, where necessary to avoid an unjust judgment and a judicially noticed fact must be one not subject to reasonable dispute because it is either 1) generally known within the territorial jurisdiction of the trial court or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned). On the other hand, the record does reveal that the venire member agreed to forgo "mention to the other jurors that - that [he] [knew] [appellant] from being in jail." He also represented to the trial court that the circumstances would not interfere with the performance of his duties as juror.
So, we have been afforded no factual basis supporting appellant's contention. Nor were we afforded legal authority suggesting that a jailer is ipso facto disqualified from serving on a jury in a criminal proceeding because he may be a jailer and may have encountered the accused while in jail. This is not to say that the situation could not implicate concerns. Jailers sitting in judgment of their wards could be problematic and subject to challenge under certain scenarios. We do not foreclose that possibility. Yet, we eschew the opportunity to merely create some blanket rule excluding them from jury pools called to adjudicate one's guilt.
Regarding the complaints about being "deprived . . . effective assistance of counsel and right to present a complete defense," appellant failed to accompany them with substantive briefing or citation to pertinent authority. Thus, they were waived. See Approximately $23,606.00 U.S. Currency v. State, No. 07-19-00297-CV, 2020 Tex. App. LEXIS 2602, at *8 (Tex. App.—Amarillo Mar. 27, 2020, no pet.) (mem. op.) (stating that an appellant's failure to cite legal authority or provide substantive analysis supporting the issues asserted constitutes inadequate briefing and waives the complaint).
As for the allegation that the venire member should have been excluded because it was "self-evident that the venireman was a potential witness in the case," that is the sum and substance of the complaint. Being inadequately briefed and waived, it leaves us guessing at the pertinent evidence the "potential witness" had.
Issue Five
Next appellant complains of the trial court's failure to instruct the jury to disregard appellant's status as a pretrial detainee. Allegedly, it so promised. Yet, he did not object to the omission or solicit the instruction at the charge conference. Nor does he argue or attempt to illustrate here that the instruction was law applicable to the case or otherwise mandated by law. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (stating that "[s]ubject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case"). Had he shown it to be so, then the trial court would have been obliged to submit it sua sponte. See Redd v. State, No. 14-08-01089-CR, 2009 Tex. App. LEXIS 9461, at *5 (Tex. App.—Houston [14th Dist.] Dec. 15, 2009, no pet.) (mem. op., not designated for publication) (stating that a trial court must sua sponte prepare a jury charge that accurately sets out the law applicable to the specific offense charged). And, to the extent it had the obligation to act sua sponte then there would have been no need to preserve the complaint by requesting the instruction. Thus, it was not preserved for review.
Issue Six
Next, appellant complains of the trial court's omission from its charge of instructions on consent, mutual combat, and self-defense. He believed himself entitled to them because the victim of the assault admitted to being the initial aggressor. We overrule the issue.
Claiming mutual combat may preclude a claim of self-defense. See Caminorreal v. State, 372 S.W.3d 479, 482 (Tex. App.—Corpus Christi 2012, no pet.) (so stating).
At the time of the assault, appellant and the victim were at the kitchen table in an RV. They engaged in a verbal argument, resulting in the victim throwing her paper cup filled with Dr. Pepper at appellant. It struck him in his face. He arose from the table, wiped his face, approached the victim, threw her to the ground, kicked her in the torso, wrapped his arm around her neck, grabbed her hair, and struck her head against the floor. The victim was pregnant at the time with appellant's child.
When a defendant claims the defense of consent or mutual combat, there must exist evidence of an antecedent agreement to fight before the court is obligated to submit an instruction on the matter. Davis v. State, 533 S.W.3d 498, 513-14 (Tex. App.—Corpus Christi 2017, pet. ref'd). Appellant cites us to no such agreement. Nor can we reasonably discern one from the aforementioned scenario, even if viewed in a light favorable to appellant. See Reed v. State, No. 02-15-00173-CR, 2016 Tex. App. LEXIS 9490, at *14-15 (Tex. App.—Fort Worth Aug. 26, 2016, no pet.) (mem. op., not designated for publication) (observing that mutually fighting was not proof of an agreement to fight, nor was evidence of the victim being mad, throwing things, and kicking the accused); Miller v. State, 312 S.W.3d 209, 212 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (stating that where evidence, viewed in a light favorable to the appellant, supports the defense of consent, then an instruction is required). Indeed, a pregnant woman throwing a soda at the unborn child's father during a verbal altercation alone is not provocation of the kind which may be construed as an invitation to engage in physical combat. See Miller, 312 S.W.3d at 212-13 (holding the instruction required given victim's testimony that he "'kind of wanted [George] to hit [him]'"; "'was all jazzed up' and 'in an aggressive mood'"; and "they were 'in the heat of combat'" when the accused struck him). Thus, the trial court was not obligated to instruct the jury on consent or mutual combat.
As for self-defense, a key element is that the use of force be immediately necessary. Juarez v. State, No. 03-04-00248-CR, 2005 Tex. App. LEXIS 6460, at *7-8 (Tex. App.—Austin Aug. 11, 2005, no pet.) (mem. op., not designated for publication). So too must the defendant have a reasonable belief that it is immediately necessary. Taylor v. State, No. 07-99-0343-CR, 2000 Tex. App. LEXIS 5391, at *8 (Tex. App.—Amarillo Aug. 10, 2000, pet. ref'd) (not designated for publication). Appellant having had time to first rise and wipe his face of the dripping soda and then approach the victim hardly denotes evidence of a reasonable belief that immediate force was necessary to thwart the absence of any other attack from the victim.
We affirm the judgment and convictions.
Per Curiam Do not publish.