No. 14-06-00609-CR
Memorandum Opinion filed May 13, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 50489.
Panel consists of Justices FOWLER, FROST, and SEYMORE.
KEM THOMPSON FROST, Justice.
Appellant Eduardo Rodriguez appeals his murder conviction, claiming (1) legal and factual insufficiency of the evidence supporting the jury's rejection of his self-defense claim, and (2) harmful error in the trial court's failure to charge the jury on self-defense for multiple assailants. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2005, appellant attended a party with his brother Juan Rodriguez, Marina Bravo, Sergio Guerrero, and Jose Edgar Romano. Leodan Cruz, Wilfredo Cruz, Miguel Castorena, and Reynaldo Ayala were also at the party. Both groups left the party in two separate vehicles and drove to the Cruz residence. On the way, Castorena told those in his vehicle, Ayala, Wilfredo Cruz, and Leodan Cruz, that he anticipated an argument with Juan and appellant involving Castorena's wife or the truck Castorena bought from appellant's father. Testimony at trial indicated that Castorena's group arrived at the Cruz house first and sought weapons in anticipation of Castorena's predicted argument. Ayala hid a machete and grabbed a kitchen knife. Wilfredo got brass knuckles. The record is unclear regarding the order of events or how much time elapsed between events that night. After appellant's group arrived, appellant took Ayala's sunglasses. Ayala demanded their return and withdrew the kitchen knife from his pocket, keeping it at his side. Castorena took the knife from Ayala and then Guerrero took the knife from Castorena. At some point, Leodan picked up a brick, but he dropped it immediately when Guerrero, who was also holding a brick, suggested that they both drop the bricks. Soon after those incidents, Juan told his group to get weapons from their vehicle. The testimony regarding the ensuing melee was sporadic at best. Ayala testified for the State that appellant poked him with a baseball bat. Ayala grabbed the machete and swung it at appellant and appellant's group when they surrounded him. Appellant hit Ayala in the back of the head with the baseball bat. Ayala testified that after that encounter, he saw appellant run with the baseball bat in the direction where Leodan was later found unconscious. Ayala testified that he did not see Leodan with any weapons that night, but he did not see Leodan at all once they arrived at the Cruz residence. Ayala and Wilfredo later found Leodan unconscious; they did not find weapons around Leodan's body. Castorena testified for the State, but was deemed a hostile witness. Castorena testified that appellant was the only person that night who had a baseball bat. Castorena testified that appellant, with a baseball bat, and Bravo, with a golf club, hit him from behind on the back of his head, but he was not sure who hit him. At trial, Castorena could not recall seeing appellant and Bravo swinging something and hitting Leodan, who was lying on the ground with Romano bent over him; however, he recounted this information to police in a police statement several days following the incident. Wilfredo Cruz, Leodan's brother and appellant's only witness, testified that he saw Leodan with Romano and Bravo. Bravo was hitting her palm with the golf club. He testified that at one point, he saw appellant and an injured Castorena standing by Castorena's truck, where Leodan was eventually found. Wilfredo testified that later he saw appellant, Bravo, Romano, and Juan standing in the place where Leodan was later found. He did not see Leodan get hit and discovered Leodan only after the participants departed in the vehicles. Other than seeing the brick briefly in Leodan's hand earlier that night, Wilfredo did not see Leodan with any weapons. The only other account of the fight was appellant's written statement given to an investigator while appellant was in a juvenile detention center. Appellant's statement indicated that someone "rushed" at appellant, and Juan hit the person with his fists. Juan told his group to "get the bats," and Bravo handed appellant a screwdriver. Appellant explained how the events unfolded in his statement: [Leodan] ran at us with a knife, and I hit him in the head with the handle of the screw driver. [Leodan] was still standing and [Romano] hit [Leodan] in the back of the head with some brass knuckles. I saw a bat by the stack of bricks, and I picked it up. I then hit [Leodan] with the bat in the top of the head and he fell to the ground. When [Leodan] fell to the ground, [Romano] started hitting him with the brass knuckles in the head and I was kicking [Leodan] in the ribs. Nina then walked over to us and told us to stop hitting him. Juan came over and tried to roll him over.
After the fight was over, the groups dispersed in two vehicles. Police located both vehicles and found Romano, Juan, and appellant hiding in appellant's aunt's house. Police found Leodan unconscious in the yard. After paramedics arrived, Leodan was taken by Life Flight to a hospital. He died eight days later from what was described in the autopsy report as blunt head trauma. Police recovered a broken baseball bat, a machete, and a kitchen knife from the scene. No weapons were found around Leodan's body. Lab tests revealed Leodan's DNA on the end of the baseball bat. Appellant was charged by indictment with murder, to which he pleaded "not guilty." A jury found appellant guilty and assessed punishment at twenty years' confinement. II. ISSUES AND ANALYSIS
A. Is the evidence legally and factually sufficient to support the jury's finding that appellant did not act in self-defense?
Though appellant presents legal insufficiency and factual insufficiency as two separate issues, we review these issues together.
In two issues, appellant contends that the State failed to meet its burden of persuasion in disproving his evidence of self-defense and that the evidence did not support the jury's finding that appellant did not act in self-defense. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). Therefore, if any rational trier of fact could have found the essential elements of murder beyond a reasonable doubt and also could have found against appellant on the self-defense claim beyond a reasonable doubt, we must affirm. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. at 417. If this court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes, 991 S.W.2d at 271. In conducting a factual-sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). 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. PENAL CODE ANN. § 9.31(a) (Vernon 2003). In a self-defense claim, the defendant has the burden of production and must bring forth some evidence to support the particular defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). However, once the defense is raised, the State bears the burden of persuasion to disprove the defense. Id. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. The issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject any defensive evidence on the issue. Saxton, 804 S.W.2d at 914. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594. Appellant claims the evidence supports that he acted in self-defense. Appellant cites evidence that Leodan's group armed themselves first before appellant's group arrived and that Leodan's group acted as the initial aggressors when Leodan grabbed a brick and Ayala pulled the kitchen knife from his pocket. Moreover, appellant's written statement indicates that when appellant struck Leodan with the handle of a screwdriver, Leodan had rushed at appellant with a knife, and when Leodan did not fall, appellant hit him with a baseball bat. In reviewing the evidence in the light favorable to the verdict, we cannot conclude the jury was irrational in rejecting appellant's self-defense claim and convicting appellant of murder. See Saxton, 804 S.W.2d at 914. Although appellant presented evidence to show he acted in self-defense, other testimony and evidence contradicted appellant's account. Testimony reflects that Leodan was not armed when the fight broke out after Juan told his group to gather weapons. Neither the police, Ayala, or Wilfredo found weapons near Leodan's body. The only knife recovered was one found in a ditch along the road that appellant's group took when leaving. Because the jury may choose to believe or disbelieve witnesses' testimony, in the face of conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. See Turro, 867 S.W.2d at 47; Sharp, 707 S.W.2d at 614. The jury rationally could have believed the testimony of Ayala, Castorena, and Wilfredo, all of whom agreed that Leodan was unarmed that night, with the exception of the brick, which Leodan dropped almost immediately. See Saxton, 804 S.W.2d at 914; Denman v. State, 193 S.W.3d 129, 133 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). We hold that the evidence is legally sufficient to prove murder because a rational jury could have found against appellant on the self-defense issue beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914; Denman, 193 S.W.3d at133 (providing that appellant's testimony of self-defense is not enough to render evidence insufficient). We overrule appellant's first issue. After reviewing the evidence in a neutral light, we cannot conclude the guilty verdict is against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. See Zuliani, 97 S.W.3d at 595; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Although Wilfredo testified Leodan grabbed a brick and appellant's written statement supports this contention, it is uncontroverted that Leodan dropped the brick before the melee began. Ayala testified that he grabbed the machete only after he was surrounded by appellant and appellant's group. Furthermore, Ayala testified that he held the knife at his side, and Castorena quickly took it from him. Testimony showed Leodan to be unarmed when appellant's group got weapons. No weapons were ever recovered from Leodan or from around his body. The State produced evidence that appellant was the only one with a baseball bat, and the baseball bat recovered by police had Leodan's DNA on it. Even if appellant's written statement were taken as true that Leodan rushed at appellant with a knife, the jury is the sole judge of the weight and credibility of the evidence. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In assessing guilt, the jury impliedly found against appellant's self-defense theory. See Zuliani, 97 S.W.3d at 594; Tucker v. State, 15 S.W.3d 229, 235-36 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Thus, we cannot conclude that the State's proof of appellant's guilt is against the great weight and preponderance of the evidence; neither can we conclude that the State's proof is too weak to support the finding. See Zuliani, 97 S.W.3d at 595. Viewing the evidence in a neutral light, we hold that the evidence is factually sufficient. Accordingly, we overrule appellant's second issue. B. Did the trial court err in failing to charge the jury on self-defense as it applies to multiple assailants?
In his third issue, appellant claims the trial court reversibly erred in refusing his request for a jury instruction on self-defense against multiple assailants. A defendant is entitled to a charge on the right of self-defense against multiple assailants if there is evidence, viewed from the defendant's perspective, that he reasonably believed "`that he was in danger of an unlawful attack or a threatened attack at the hands of more than one assailant.'" Frank v. State, 688 S.W.2d 863, 868 (Tex.Crim.App. 1985) (quoting Wilson v. State, 140 Tex. Crim. 424, 145 S.W.2d 890, 893 (1940)). In determining whether evidence has been presented that raises the issue of a defensive charge, we must consider all of the evidence presented at trial regardless of whether it is "strong, weak, unimpeached, or contradicted." Booth v. State, 679 S.W.2d 498, 500 (Tex.Crim.App. 1984); see Frank, 688 S.W.2d at 868. A jury charge confined only to the right of self defense against a victim is too restrictive if evidence indicates that more than one person attacked the defendant. See Frank, 688 S.W.2d at 868. In support of his contention that he should have received an instruction on self-defense against multiple assailants, appellant cites evidence that he was threatened and attacked not only by Leodan with a knife and brick, but also by Ayala with a knife and a machete. Appellant also cites evidence that Wilfredo had brass knuckles and Castorena had a knife. Presuming without deciding that the trial court erred in not giving the instruction on multiple assailants, we conclude that the error was harmless. See Collier v. State, No. 14-00-00609-CR, 2002 WL 1824967, at *6 (Tex.App.-Houston [14th Dist.] Aug. 8, 2002) (not designated for publication), aff'd, No. 1647-02, 2003 WL 22508079 (Tex.Crim.App. Nov. 5, 2003) (not designated for publication). Appellant objected to the lack of the multiple-assailants instruction at trial; therefore, he is entitled to reversal if he can demonstrate that he suffered some actual, rather than theoretical, harm. See Dickey v. State, 22 S.W.3d 490, 492 (Tex.Crim.App. 1999). The presence of any harm, regardless of degree, is sufficient to require a reversal of the conviction. Id.; Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If appellant's written statement is to be believed, appellant claimed that he used force against Leodan, when Leodan attacked him with a knife, which is an act that, by itself, justified the use of deadly force. See Collier, 2002 WL 1824967, at *7; see also Dickey; 22 S.W.3d at 493 (Keller, J., concurring). Presuming without deciding that appellant was justified in his attack against Leodan, the trial court instructed the jury on appellant's right of self-defense against Leodan "to protect himself against [Leodan's] use or attempted use of unlawful force." However, in finding appellant guilty, the jury implicitly rejected appellant's self-defense theory against Leodan, which necessarily indicates that the jury also would have rejected a self-defense theory involving multiple assailants. See Dickey, 22 S.W.3d at 493; Collier, 2002 WL 1824967, at *7. Thus, even if the trial court erred in not submitting a multiple-assailants instruction, appellant has not demonstrated actual harm from this error. See Dickey, 22 S.W.3d at 492 (majority opinion); Collier, 2002 WL 1824967, at *7. We overrule appellant's third issue. Having overruled appellant's three issues, we affirm the trial court's judgment.