No. 05-03-01697-CR
Opinion Filed July 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-57432-JT. Affirm.
Before Justices BRIDGES, RICHTER, and LANG.
MARTIN RICHTER, Justice.
Heriberto Salas appeals his jury conviction for murder arguing in a single issue that the trial judge committed charge error by limiting his self-defense claim. Finding no error, we affirm.
Background
Salas was charged with the murder of Raul Rodriguez, the estranged husband of Salas's girlfriend, Nelida Santos. At trial, Salas did not dispute that he was carrying a gun the night of the murder or that he shot Rodriguez four times and caused Rodriguez's death. Instead, he argued he shot Rodriguez in self-defense. Indeed, several witnesses, both for the State and the defense, testified Rodriguez was "upset" because of Salas's and Santos's relationship, had "harassed" Salas for several months and vandalized his car, and had threatened to kill both Salas and Santos. Several witnesses also testified "it was known" that Rodriguez owned a gun. On the night of the murder, Rodriguez confronted and assaulted Santos at a carwash. Salas, aware Santos was meeting with Rodriguez, but disapproving of the meeting, drove by the carwash and saw Santos's car and police officers there. Not seeing Santos, Salas called his sister, who was a friend of Santos, and asked if Santos was at his sister's house. His sister replied that she was not, but Salas drove to his sister's house anyway to look for her "around there." There, he saw Rodriguez's car. According to the State's witnesses, Salas approached Rodriguez's car and asked to speak to him. According to Salas, he simply asked someone standing outside where Rodriguez was because he did not want to get out of his car if Rodriguez was there. Rodriguez then approached him, and Salas asked him where Santos was. Salas got out of his car and the two began talking. Moments later, they began to argue and Rodriguez began shoving Salas. Witnesses separated Salas and Rodriguez, and Salas tried to walk away. However, Rodriguez chased after him and the two began fighting. One of the witnesses, a friend of Rodriguez, urged Salas to leave, but when he did not, told Rodriguez to "go ahead, f- him." This witness also threw a beer bottle at Salas, hitting him on the head. At some point, Rodriguez placed his hands in his pockets. Believing Rodriguez was about to pull out his gun, Salas pulled out his gun and shot Rodriguez twice. Rodriguez fell to the ground but was still alive and, according to Salas, appeared to still be "reaching for something." Fearing Rodriguez would shoot him, Salas again shot Rodriguez twice. According to one witness, as Salas shot Rodriguez "the second time around," he stated to Rodriguez "you're not going to f- with me anymore." The jury was instructed on self-defense but was also given, over Salas's objection, an instruction limiting Salas's self-defense claim pursuant to section 9.31(b)(5) of the Texas Penal Code. See Tex. Pen. Code Ann. § 9.31(b)(5)(A) (Vernon 2003). That instruction directed the jury to find against Salas's self-defense claim if it found Salas "sought an explanation from or discussion with" Rodriguez concerning their differences while unlawfully carrying a handgun. Id.; § 46.02. It is this instruction which forms the basis of Salas's complaint of charge error. Discussion
We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). When reviewing a challenge to the jury charge, we must first determine whether error actually exists in the charge. See Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If we find error and, as in this case, error has been properly preserved, we will reverse the conviction upon a showing of "some harm." Id. Under sections 9.31 and 9.32 of the Texas Penal Code, a person is justified in using deadly force against another (a) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful force and (b) if a reasonable person in the same situation would not have retreated. Tex. Pen. Code Ann. §§ 9.31(a), 9.32(a). The penal code also provides, however, several instances in which a person is not justified in using force. See id. § 9.31(b). One such instance, and the one upon which the jury in this case was instructed, is when the person seeks an explanation from or discussion with the other person concerning their differences while unlawfully carrying a weapon. See id. § 9.31(b)(5)(A), § 46.02. On appeal, we will find a jury instruction on this self-defense limitation proper when (1) self-defense is an issue, (2) evidence exists from which a jury could find beyond a reasonable doubt that the defendant sought an explanation from or discussion with the victim concerning their differences, and (3) the defendant was unlawfully carrying a weapon. See Smith v. State, 965 S.W.2d 509, 514 (Tex.Crim.App. 1998); Bumguardner v. State, 963 S.W.2d 171, 175 (Tex.App.-Waco 1998, pet. ref'd). In making this determination, we view the evidence in the light most favorable to giving the instruction. Smith, 965 S.W.2d at 514. In arguing the judge committed error by limiting his self-defense claim, Salas does not dispute he was unlawfully carrying a weapon. Rather, he maintains that although evidence was presented showing he asked to talk to Rodriguez when he saw Rodriguez's car while searching for Santos, that evidence "did nothing to prove that [he] . . . `sought an explanation from or discussion with [Rodriguez] concerning [their] differences.'" (emphasis included). We disagree. Viewing the evidence under the light most favorable to giving the instruction, the record reflects Salas was in a relationship with Santos, Rodriguez's estranged wife, and Rodriguez was upset by this, had "harassed" Salas and vandalized Salas's car, and had threatened to kill both Santos and Salas. The record further reflects Salas disapproved of Santos meeting Rodrgiuez at the carwash, became concerned for Santos, asked to speak to Rodriguez when he saw Rodriguez at his sister's house, and, as he shot Rodriguez "the second time around," stated to him "you're not going to f- with me anymore." From all this evidence, we conclude a rational jury could have found beyond a reasonable doubt that Salas and Rodriguez had their differences and Salas "sought an explanation from or discussion with" Rodriguez concerning their differences. See Bumguardner, 963 S.W.2d at 175-76 (instruction to jury to reject defendant's self-defense claim if it found defendant had sought to discuss with victim, defendant's wife's boyfriend, their differences properly given where evidence showed defendant and victim had fought earlier in day over wife and later, defendant confronted victim again and killed him). Accordingly, we conclude no charge error occurred. We resolve Salas's sole issue against him. We affirm the trial court's judgment.