Opinion
No. 04-16-00472-CR
04-19-2017
Yessica Y. PECINA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 15, Bexar County, Texas
Trial Court No. 491719
The Honorable Robert Behrens, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice AFFIRMED
A jury convicted appellant Yessica Y. Pecina of assault bodily injury. On appeal, she contends the evidence is legally insufficient to support the jury's implicit rejection of her defensive theories of self-defense and defense of property. We affirm the trial court's judgment.
BACKGROUND
The evidence shows Pecina and her husband, Tyler Green, as well as the complainant, Kelsey Kendrick, and Kendrick's boyfriend, Erik Perez, were living together as roommates in an apartment when Kendrick decided to move out of the apartment. Kendrick and Perez had recently ended their relationship, and according to Kendrick, she and Perez had agreed on a specific date for Kendrick to move out of the apartment. On that day, Kendrick and her father were packing boxes in the kitchen when Pecina removed some placemats from the kitchen table. Kendrick testified she told Pecina the placemats belonged to her and asked Pecina to return them. According to Kendrick, the placemats were originally owned by her parents, who gave them to her when she moved out of their house. Kendrick stated that when she reached for the placemats, Pecina said, "Don't touch me you stupid bitch," and slapped her across the back of the head. Kendrick testified she again reached for the placemats, and "[Pecina] just kind of — I guess what you would say in slang — went off on me. It was hair pulling, scratching, punching, slapping at my face." Kendrick stated that as Pecina attacked her, Tyler tried to stop the altercation, and as a result, she fell to the ground. Kendrick further testified that while she was on the ground, Pecina was "just going at me," specifically, "[p]unching, scratching, hair — you know, hair pulling." Kendrick stated she continually screamed for Pecina to stop and get off her, and eventually Pecina stopped. At that point, Kendrick's father ran to a neighbor's apartment and called the police. Meanwhile, Kendrick went to the bathroom to rinse off her face and noticed something was wrong with her eye. She stated it "felt like maybe an eyelash or sweat or dirt maybe from her nails or just whatever got in my eye" and as a result, her depth perception was altered.
The jury next heard testimony from Bexar County Deputy Enrique Cepeda, the deputy dispatched to the apartment. He stated that when he arrived, Pecina and Kendrick had been separated. He immediately noticed bruises and scratches on Kendrick's face and called for medical attention. Specifically, he testified Kendrick's left eye was very red. He also testified Pecina did not appear to have any injuries. Deputy Cepeda stated he then interviewed everyone at the location and learned about the placemat dispute. Deputy Cepeda further testified Kendrick told him the placemats belonged to her. He also stated, however, that he did not ask Pecina whether the placemats belonged to her. When asked whether he could determine who the aggressor in the altercation was, Deputy Cepeda testified that based on his interviews with everyone and the injuries he observed on Kendrick, he believed Pecina was the aggressor. As a result, he arrested Pecina for assault bodily injury.
The jury also heard testimony from Pecina. Pecina testified that when she arrived at the apartment after work, she was surprised to find Kendrick and Kendrick's father at the apartment packing. When asked how the dispute arose, Pecina stated, "I just went up to the table and got my placemats because they were putting their stuff on the table and all over --." According to Pecina, the placemats belonged to her. Pecina stated that when she removed the placemats, Kendrick accused her of stealing them. Kendrick called her "bad words" and tried to grab the placemats. Pecina testified that after Kendrick tried to grab the placemats, she "rolled [the placemats] in a bundle" and walked away. Kendrick again reached for the placemats. Pecina stated that at that point, her husband "got in front of me because he saw that [Kendrick] was coming — looking aggressive towards me." According to Pecina, Tyler was protecting her from Kendrick.
On cross-examination, Pecina further testified that when Kendrick reached for the placemats a second time, Kendrick was trying to hurt her and she was justified in defending herself. Pecina admitted, however, that Kendrick did not touch her when she reached for the placemats, but "was in front of me ... look[ing] aggressive trying to go like that." She added that Kendrick was "trying to reach to hit me when she was trying to reach for [the placemats]." Pecina further added that at some point, Kendrick and Tyler fell to the ground and Kendrick started hitting Tyler. Pecina explained she tried to stop Kendrick from hitting Tyler, and as a result, Kendrick began hitting her. Thereafter, "we started fighting each other."
In addition to Pecina's testimony, the jury heard testimony from Tyler. According to Tyler, he and his wife owned the placemats. He testified the placemats had been in their possession before they lived with Kendrick and Perez. With regard to the altercation, Tyler testified Kendrick moved toward Pecina "like she was going to strike [her]." As a result, he moved in front of Pecina, and then Kendrick started swinging at him and Pecina. Tyler stated that when Kendrick began swinging, he pushed Kendrick back and "[t]he last thing I remember at that point was after I pushed her, I was on the floor on top of her." Tyler could not recall exactly how he and Kendrick ended up on the floor. On cross-examination, when asked whether Kendrick touched him or Pecina before he pushed Kendrick, Tyler stated he did not know. According to Tyler, he decided to push Kendrick because "she had the intent" to do something physical to him or Pecina.
After the parties rested, Pecina requested jury instructions on the defensive theories of self-defense and defense of property. The trial court granted the requested instructions; however, the jury found Pecina guilty of assault bodily injury, implicitly rejecting the defensive theories. Pecina then perfected this appeal.
ANALYSIS
In one issue on appeal, Pecina contends the evidence is legally insufficient to support the jury's implicit rejection of her defensive theories. Specifically, she contends the State failed to meet its burden of persuasion to disprove her claims of self-defense and defense of property.
Standard of Review
In reviewing the legal sufficiency of the evidence, we examine all of the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). Under this standard, we must defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (emphasis in original). We may not re-evaulate the weight and credibility of the evidence and substitute our own judgment for that of the jury; instead, we must presume the jury resolved any inconsistencies in the testimony in favor of the verdict and defer to that resolution. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.3d 459, 461 (Tex. Crim. App. 1991); Baez v. State, 486 S.W.3d 592, 594 (Tex. App.—San Antonio 2016, pet. ref'd.).
Applicable Law
Section 9.31(a) of the Texas Penal Code ("the Code") defines the defensive theory of self-defense. TEX. PENAL CODE ANN. § 9.31(a) (West 2011). Under section 9.31(a), "a person is justified in using force against another when and to the degree the actor reasonably believes force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Id. The use of force by the actor against another is not justified if the actor provoked the other's use of unlawful force unless the actor abandons the encounter. Id . § 9.31(b)(4).
Section 9.41(a) of the Code defines the defensive theory of defense of one's own property. Id . § 9.41(a). Under section 9.41(a), "a person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property." Id .
A defendant bears the initial burden of production with regard to a defensive theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d at 914. This requires the defendant to produce some evidence that supports the particular defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. Once the defendant meets this burden by producing some evidence, then the State bears the burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913-14. The burden of persuasion is not one that requires the production of evidence; rather, the burden requires the State to prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. When the defendant is found guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.
Application
In this case, the jury heard conflicting testimony about how the incident started. In support of her self-defense theory, Pecina testified she was justified in defending herself because she believed Kendrick was trying to hurt her. When describing how Kendrick tried to hurt her, Pecina stated Kendrick was "coming — looking aggressive towards me." She described Kendrick as "trying to reach to hit me when she was trying to reach for [the placemats]." However, Pecina did not testify that she believed the use of force was immediately necessary to protect herself from Kendrick at that point. See TEX. PENAL CODE ANN. § 9.31(a) (indicating actor's use of force against another is justified only if actor reasonably believes it is immediately necessary to protect herself against other's use of force). Rather, Pecina testified she used immediate force against Kendrick in order to stop Kendrick from hitting Tyler. In Pecina's own words, Kendrick "fell on the floor trying to hurt Tyler and I went to push her away." Thus, when viewing the evidence in the light most favorable to the verdict, a rational jury could have reasonably determined that Pecina's use of force was not justified because it was not immediately necessary to protect herself — but rather Tyler — from Kendrick's use of force. See id.; see also Hooper, 214 S.W.3d at 13; Saxton, 804 S.W.2d at 913-14.
The jury also heard testimony that Pecina provoked Kendrick's use of force. See TEX. PENAL CODE ANN. § 9.31(b)(4) (indicating actor's use of force is not justified if actor provoked other). Kendrick testified Pecina slapped her across the back of the head when she attempted to reach for the placemats. Kendrick further testified that when she reached for the placemats a second time, Pecina "went off" on her, pulling her hair as well as scratching and slapping her face. Similarly, the jury heard evidence from Deputy Cepeda, who testified that based on his interviews and Kendrick's injuries, he believed Pecina was the aggressor. Again, when viewing this evidence in the light most favorable to the verdict, a rational jury could have reasonably determined Pecina was not justified in using force against Kendrick because Pecina provoked Kendrick's use of force by slapping Kendrick across the back of her head and "[going] off" on her See id.; see also Hooper, 214 S.W.3d at 13; Saxton, 804 S.W.2d at 913-14. Although Pecina denied provoking Kendrick, the jury is the sole judge of the credibility of the witnesses and could have chosen not to believe Pecina's testimony supporting her self-defense theory. See Chambers, 805 S.W.3d at 461; Baez, 486 S.W.3d at 594. As pointed out by the Texas Court of Criminal Appeals, we must presume the jury resolved any conflicts in the evidence in favor of the State and defer to that resolution. See Isassi, 330 S.W.3d at 638.
As to defense of property, the jury heard conflicting testimony regarding whether Pecina was in lawful possession of the placemats and therefore, justified in using force against Kendrick to prevent Kendrick from taking Pecina's property. See TEX. PENAL CODE ANN. § 9.41 (indicating person in lawful possession of property is justified in using force against another to stop interference with property). Here, the jury heard testimony from both Pecina and Tyler that Pecina owned the placemats. The jury also heard testimony from Kendrick, who testified she owned the placemats and described the placemats as originally belonging to her parents. Again, viewing the evidence in the light most favorable to the verdict, a rational jury could have reasonably determined Pecina was not justified in using force against Kendrick because the jury could have reasonably believed Pecina was not in lawful possession of the placemats. See id.; see also Hooper, 214 S.W.3d at 13; Saxton, 804 S.W.2d at 913-14. In this case, the jury could have reasonably believed the placemats belonged to Kendrick. Even assuming arguendo that Pecina lawfully owned the placemats, the jury could have reasonably determined Pecina's use of force was not immediately necessary to stop Kendrick from interfering with the placemats. See TEX. PENAL CODE ANN. § 9.41. At no point did Pecina testify she reasonably believed force was immediately necessary to stop Kendrick from removing the placemats; rather, Pecina testified the use of force was immediately necessary to protect Tyler from Kendrick.
With regard to Pecina's contention that the State failed to meet its burden of persuasion to disprove her defensive theories, we disagree. We recognize the burden of persuasion does not require the production of additional evidence; rather, the burden requires the State to prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. The jury's rejection of Pecina's defensive claims hinges on the credibility of the witnesses. In this case, the jury chose not to believe Pecina's testimony that she acted in self-defense or defense of her property when she used force against Kendrick. As stated above, when viewing the evidence in the light most favorable to the verdict, the jury could have rationally rejected Pecina's defense claims and found each element of the charged offense was proven beyond a reasonable doubt. See Hooper, 214 S.W.3d at 13; Saxton, 804 S.W.2d at 913-14. Accordingly, we overrule Pecina's sole issue on appeal.
CONCLUSION
Based on the foregoing, the trial court's judgment is affirmed.
Marialyn Barnard, Justice Do Not Publish