Opinion
NUMBER 13-15-00134-CR
09-01-2016
ELIZABETH VERA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Garza
A jury convicted appellant, Elizabeth Vera, of aggravated assault, a second-degree felony offense. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2), (b) (West, Westlaw through 2015 R.S.). The jury assessed punishment at two years' imprisonment, suspended the sentence, and placed appellant on community supervision for five years. By two issues, appellant contends: (1) the trial court erred in failing to instruct the jury regarding a defense-of-property instruction, see id. § 9.41(b) (West, Westlaw through 2015 R.S.); and (2) her counsel was ineffective for failing to request or object to the omission of a defense-of-property instruction. We affirm.
I. BACKGROUND
The following facts were taken from the trial testimony. Appellant's common-law husband, Mario Morin, Sr. ("Mario"), whom she lived with for many years, died in October 2013. At his funeral, appellant permitted Mario's son, Mario Morin, Jr. ("Morin"), to lead Mario's funeral procession on one of Mario's motorcycles. A few months after the funeral, Morin had not returned the motorcycle. Appellant asserts that Mario left all of his property, including the home where they resided, to her. She therefore contends that the motorcycle belongs to her. Morin contends that Mario had agreed to sell him the motorcycle on a payment-plan basis.
After the funeral, appellant attempted to recover the motorcycle by calling Morin several times; however, he did not return the motorcycle. In early November, appellant learned of an incident in which Morin came by her residence and spoke to James Torres, who was at her home helping with some yard work. Morin told Torres to leave and threatened to come back and "F [appellant] up." Shortly thereafter, appellant purchased a gun for protection.
On December 13, 2013, while out driving, appellant saw Morin on the motorcycle. Appellant's account of what happened next differs from Morin's. Appellant testified that she honked at him, and he shot her "the finger." Morin pulled into a parking lot; appellant followed and called 911. Appellant denied "rear-ending" Morin; rather, she stated that he kept applying the brakes in front of her. In the parking lot, appellant stated she pulled out a gun after she saw that Morin had a gun. Appellant stated that Morin ran to the side of a building and hid his gun. She denied pointing her gun at Morin. During the 911 call, appellant told the operator that she and Morin both had a gun.
Morin testified that after Mario died, appellant began selling some of his property, including two other motorcycles, a truck, and a boat. Morin stated that, about six months before Mario died, he agreed to sell Morin the motorcycle on a purchase-plan basis. They agreed on a purchase price of $8,000; Morin had made five monthly payments of $350.
A few weeks after Mario died, Morin saw a man, later identified as Torres, sitting on appellant's porch drinking a beer. Morin asked Torres to leave. Morin testified that he was on parole for drug offenses and therefore was prohibited from carrying a gun.
Morin was riding the motorcycle home from work when appellant honked at him from behind and rear-ended him. Morin pulled into a parking lot. Appellant followed, used her truck to pin him against another vehicle, and pulled out a gun. Appellant was shouting that Morin had stolen the motorcycle. She threatened to shoot him if he did not run and leave the motorcycle. Morin testified that he felt threatened. Morin denied that he pulled a gun on appellant or threatened her with a gun.
James Jason Basaldu testified that he was sitting in his car in a parking lot in front of a laundromat on December 13, 2013. He saw a man riding a motorcycle—Morin—pull into the parking lot. A woman driving a truck (appellant) followed Morin and attempted to pin him between two vehicles. Appellant, still seated in her truck, was waving a handgun around. Basaldu approached appellant, showed her his military I.D., and requested her registration documents for the handgun. Basaldu stated that appellant's demeanor was "hostile and threatening." Appellant was pointing the gun in Morin's direction. According to Basaldu, Morin was "definitely scared" and took shelter behind Basaldu's vehicle. Morin did not act aggressively and stayed behind the vehicle until 911 responders arrived.
Lillian Penick, an officer with the Corpus Christi Police Department, testified that she responded to the 911 call in the parking lot. While the officers were en route to the scene, they were told by the dispatcher that appellant had a gun and was pointing it at Morin. When the officers arrived, appellant was still in her truck and was screaming that she wanted her motorcycle back. She kept repeating that the motorcycle belonged to her late husband and she wanted it back. Appellant did not mention that Morin had pulled a gun on her. Appellant was arrested.
Raul Ramirez, an officer with the Corpus Christi Police Department, testified that he accompanied Officer Penick in responding to the 911 call. Officer Ramirez stated that Morin appeared to be "scared" and "just kind of shaken up." Appellant was "yelling about a motorcycle." The officers recovered a handgun and a Taser from appellant's vehicle. No gun was found on Morin.
Jaime Torres testified that in early November 2013, he was outside at appellant's home. Appellant had asked Torres for help trimming tree branches and doing yard work. After finishing the yard work, Torres opened a beer while waiting for his wife and appellant to return to the house. Morin pulled up to the house and asked, "who the Fuck are you?" Morin also said, "that bitch got to go, too." Morin said he was going to return with his "Calaveras home boys" and "fuck her up and whoever is here." Torres stated that when he told appellant about the incident, she was scared.
At the close of evidence, the trial court asked defense counsel, "you're asking for self-defense?" and counsel answered affirmatively. Both sides stated "no objection" to the charge. During closing argument, the defense argued that appellant loaded her gun and pointed it at Morin in self-defense. The State argued that appellant's self-defense claims were not credible because she did not tell the investigating officers that Morin had a gun.
The jury found appellant guilty. Following a punishment hearing, the jury assessed punishment.
II. DEFENSE-OF-PROPERTY INSTRUCTION
By her first issue, appellant argues that the trial court erred in failing to include a defense-of-property instruction in the jury charge.
A. Standard of Review and Applicable Law
"Our first duty in analyzing a jury-charge issue is to decide whether error exists. Then, if we find error, we analyze that error for harm." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). The degree of harm required to reverse the trial court's judgment depends on whether the appellant objected to the charge before it was given to the jury. Id. Under Almanza v. State, if the defendant has properly objected to the charge, we need only find "some harm" to reverse the trial court's judgment. Id. at 743-44 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). If the defendant fails to object, however, or states that he has no objection to the charge, "we will not reverse for jury-charge error unless the record shows 'egregious harm' to the defendant." Id. In determining whether egregious harm exists, we examine the charge in its entirety, the state of the evidence, the argument of counsel, and any other relevant information in the record. Id.
"Almanza, however, does not apply to defensive issues, which may be forfeited if not preserved at trial." Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim. App. 2013) (citing Posey v. State, 966 S.W.2d 57, 60-61 (Tex. Crim. App. 1988); Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002)). "Defensive issues are those 'on which instructions are not mandated by any statute.'" Id. "They involve strategic decisions and tactics generally left to the lawyer and the client." Id. Thus, a trial judge has no duty to instruct a jury sua sponte on unrequested defensive issues. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). "A defendant cannot complain on appeal about the trial judge's failure to include a defensive instruction that he did not preserve by request or objection: he has procedurally defaulted any such complaint." Id.; see also Williams v. State, 273 S.W.3d 200, 223 (Tex. Crim. App. 2008) ("[A] party can forfeit the right to complain about the omission of a defensive issue because the defensive issue must be requested before the trial court has a duty to place it in the charge, and so no 'error' occurs absent a request.").
We find no authority concluding that the defense of defense-of-property is mandated by statute as part of the law of aggravated assault, nor has appellant cited us to any. See Zamora, 411 S.W.3d at 513. We conclude that appellant forfeited any right to complain about the absence of a defense-of-property instruction. See id. We overrule appellant's first issue.
III. INEFFECTIVE ASSISTANCE
By her second issue, appellant contends her counsel was ineffective for failing to object to the charge.
A. Standard of Review and Applicable Law
"To obtain a reversal of a conviction under the Strickland test, a defendant must show that: (1) counsel's performance fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome of the proceeding." Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Deficient performance means that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 687). "The prejudice prong of Strickland requires showing 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 248 (quoting Strickland, 466 U.S. at 694). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694). "[E]ach case must be judged on its own unique facts." Davis, 278 S.W.3d at 353.
The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that his actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing court will not second-guess legitimate tactical decisions made by trial counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court should presume that trial counsel's performance was constitutionally adequate . . . ."). Counsel's effectiveness is judged by the totality of the representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes, 216 S.W.3d at 851. An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.
To show counsel was ineffective for failing to request a jury instruction, an appellant must show that he was entitled to the instruction. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); see also Peek v. State, No. 11-12-00319-CR, 2015 WL 1778952, at *6 (Tex. App.—Eastland Apr. 16, 2015, pet. ref'd) (mem. op., not designated for publication). A trial counsel's failure to request an instruction to which an appellant was not entitled is not ineffective assistance. Cummings v. State, 401 S.W.3d 127, 132 (Tex. App.—Houston [14th Dist. 2011, pet. ref'd). It is not ineffective assistance to fail to request a jury instruction when trial counsel reasonably could have determined that the instruction was not applicable to the case. See Aldaba v. State, 382 S.W.3d 424, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd); see also Little v. State, No. 14-13-00832-CR, 2014 WL 7172403, at *3 (Tex. App.—Houston [14th Dist.] Dec. 16, 2014, no pet.) (mem. op., not designated for publication).
B. Discussion
Where, as here, an alleged owner of property (appellant) has already been dispossessed of property and is attempting to regain possession at the time force is used, section 9.41(b) of the penal code is implicated.
Section 9.41(b) provides:
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
TEX. PENAL CODE ANN. § 9.41(b) (emphasis added). Thus, the instruction is only applicable to appellant if she used force "immediately" or "in fresh pursuit" after she was dispossessed of the motorcycle. Id.; see Hernandez v. State, 914 S.W.2d 218, 224 (Tex. App.—El Paso 1996, pet. ref'd) (holding evidence was insufficient to warrant instruction on defense-of-property because was no evidence of imminent criminal mischief); see also Pozzerle v. State, No. 14-14-00610-CR, 2015 WL 5935585, at *1 (Tex. App.—Houston [14th Dist.] Oct. 13, 2015, no pet.) (mem. op., not designated for publication) (finding appellant who used force to recover cell phone stolen earlier in the day was not entitled to defense-of-property instruction because he did not act immediately or in fresh pursuit) (citing Ordonez v. State, No. 14-10-00132-CR, 2010 WL 5395808, at *3 (Tex. App.—Houston [14th Dist.] Dec. 21, 2010, no pet.) (mem. op.) (not designated for publication) (finding appellant who used force to recover vehicle was not entitled to defense-of-property instruction because he did not act immediately or in fresh pursuit where complainant had been in possession of vehicle for approximately three months); Salley v. State, No. 14-97-00656-CR, 2000 WL 552193, at *3 (Tex. App.—Houston [14th Dist.] 2000, pet. ref d) (mem. op.) (not designated for publication) (finding appellant's use of force was not immediately after or in fresh pursuit after dispossession when he walked down to his van, retrieved a shotgun, returned upstairs, and shot the complainant who had refused to return appellant's revolver); Hall v. State, No. 01-88-00511-CR, 1989 WL 21835, at *2 (Tex. App.—Houston [1st Dist.] 1989, no pet.) (not designated for publication) (finding appellant who used force in an attempt to recover a wrecker approximately one hour after it was taken did not act "immediately or in fresh pursuit")). Here, by appellant's own testimony, Morin had been in possession of the motorcycle for almost two months, from late October to mid-December 2013. Therefore, appellant did not use force "immediately" or "in hot pursuit" after she was dispossessed of the motorcycle. See TEX. PENAL CODE ANN. § 9.41(b); see also Pozzerle, 2015 WL 5935585, at *1. Accordingly, appellant was not entitled to a defense-of-property instruction, and her counsel was not ineffective for failing to request it. See Cummings, 401 S.W.3d at 132. We overrule appellant's second issue.(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
IV. CONCLUSION
We affirm the trial court's judgment.
DORI CONTRERAS GARZA,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 1st day of September, 2016.