Opinion
No. 08-09-00101-CR.
July 21, 2010. DO NOT PUBLISH.
Appeal from the 205th District Court of Hudspeth County, Texas, (TC# 3964).
Before CHEW, C.J., McCLURE, and RIVERA, JJ.
OPINION
In two issues, Appellant challenges the legal sufficiency of the evidence to support his conviction for deadly conduct and alleges that the trial court erred in its charge to the jury. We affirm the trial court's judgment.
BACKGROUND
The Snyder home in Hudspeth County is located about 50 yards from the home of Terry Vestal, Appellant. On the evening of August 26, 2007, Timothy Bustamante and Zaki Riley were visiting the residents and other guests of the Snyder home, where they watched movies and had a few drinks. At approximately 10:30 p.m., Riley and Bustamante stepped outside the Snyder home, stood about one foot away from the screen door, and continued speaking to those inside as they discussed whether Bustamante would call a friend to pick him up or if he would leave with Riley. As they stood near the screen door at the Snyder home, Riley heard someone yelling profanity and racial slurs at them, telling them to shut up and stating, "[Y]ou-all need to go back where you came from, you don't belong in this country." Bustamante and Riley walked to the middle of the public road across from Appellant's home, and Bustamante, in an attempt to determine the problem, called Appellant by his first name, asked him why he was yelling and cursing at them, and told Appellant to come outside if he had a problem with them. Meanwhile, Appellant's racial slurs allegedly continued for approximately five to ten minutes. Bustamante testified that when he was in the center of the road, he was never within arm's reach of Appellant's fence, he never tried to climb Appellant's fence or get into Appellant's yard or home, and he never threatened Appellant with a gun or other weapon. Riley similarly testified that he and Bustamante were not close enough to touch the chain-link fence that enclosed Appellant's yard, they never tried or threatened to climb the fence or enter Appellant's yard or property, and stayed on the public roadway. The house was too dark to see Appellant's features, but Riley stated that he could see a silhouette. According to Bustamante, Appellant told the men that if they did not leave and go back where they came from, the next sound they would hear was going to be from Appellant's shotgun. Bustamante heard the sounds of a gun being cocked and fired, and testified that it sounded like a shotgun. With no cover nearby, Bustamante ducked and squatted low to the ground. Riley likewise testified that Appellant threatened to shoot the men saying, "[T]he next sound you're going to hear is the sound of my shotgun." Within seconds, Riley, who had military experience and was familiar with the sound of chambering a round of ammunition and the discharging of weapons, heard Appellant load ammunition into a gun and then fire it. Riley testified that, as he was without sufficient time to seek safety, he stood still, closed his eyes, and hoped for the best, knowing that whether he ducked or stood, a shotgun blast could strike him. Riley stated that he felt threatened by Appellant's statements and gunfire, and Bustamante testified that he thought the shot was directed at him, felt threatened, and was scared. Lee Bond, who had also been in the Snyder home, ran toward the men and yelled at them to get back inside the house, and Lucia Snyder placed a call to law enforcement. Lucia Snyder testified that she believed Appellant had fired at Bustamante and Riley, and did not run to where Bustamante was because she was afraid that Appellant would shoot at her. Riley helped Bustamante up from the ground and they quickly walked back to the Snyder home and told the others inside that Appellant had fired his gun at them. At least one other witness testified that Appellant's racial slurs continued after he fired the shotgun. Upon arriving at the scene, Riley and Bustamante informed Deputy Sheriff Lesaro Salgado that they were scared and had "hit the ground after they heard the shotgun blast." Deputy Salgado testified that this indicated to him that the men thought Appellant had fired at them, and then determined that Appellant had fired his gun in the direction of Bustamante and Riley. Deputy Salgado recovered a Remington "pump" shotgun from Appellant's home and arrested Appellant for shooting towards "a group of people." Appellant informed Deputy Salgado and a State Trooper, who had also responded to the location, that he had only fired his gun at a skunk. Appellant's son-in-law, John Worley, who was not present at the time Appellant fired the shotgun, testified that Appellant called him that evening and told him that he had fired a shotgun into a sandbag on the ground in an attempt to run off people who were trying to call him out into the street. Worley stated that Appellant did not like to be awakened and that the hole in the bedroom screen door at the side of Appellant's house was from the shotgun blast. Mr. Worley stated that he could hear people in the background yelling and cussing at his father-in-law, asking him to come out of the house and that they were going to "kick his ass." The telephone conversation concluded after police arrived. The following day, Mr. Worley went to Appellant's home and removed the remaining firearms from the house so they would not be stolen. Among the items admitted into evidence was a video recording of Appellant made on the night of the shooting, as well as photographs showing Appellant's bedroom screen door, the proximity of the homes, the road, yard, and fence that separated them. The photographs showed a hole in the lower of the two screens within the door and sand bags outside the door. No scientific or opinion evidence was presented to indicate whether the hole in the screen was made by a shotgun and, if so, whether the hole was made by shooting the gun either down toward the ground or in some other direction. At the conclusion of the evidence, and upon consideration of the trial court's draft jury charge, Appellant informed the trial court that he preferred that the charge contain an instruction addressing self-defense. The State opposed the inclusion of a self-defense application paragraph, noting that Appellant had not admitted that he had committed the offense, had not stated that he felt his life was in imminent danger of serious bodily injury or death before the shooting, and had never asserted that he acted in self-defense. The State staunchly reminded the trial court that Appellant had no self-defense claim for any events that occurred before he fired the shotgun because, at most, the evidence showed an exchange of words while Bustamante and Riley were in the middle of a public road, and there was no evidence showing that the two men had come close to Appellant's fence or yard. Appellant objected to the absence of the self-defense instruction from the court's charge to the jury, and the trial court granted Appellant's request to reopen his case-in-chief. Appellant then testified that he suffered from early-waking insomnia and was yelling at some cats in an attempt to quiet them when he heard people from the Snyder home yell back at him. Appellant stated that he "saw a group of people coming, but the weeds were so tall that [he] was mistaking weeds for people." Appellant stated that he was frightened and was afraid that the people were going to come over his fence. He continued:I was in — you know, about half drunk and I was in a stupor and so I just — I just took up my ["]teddy bear["] and told them that I had it, but they couldn't see because it was so black that [sic] I discharged into a sandbag at my feet so they could tell I had it. And that was the main reason I discharged that gun.On cross-examination, Appellant stated that he thought the police officers had arrived to help him that evening, said that he was only joking when he told the officers he was shooting at skunks, and claimed that he never shot his gun at anyone but wanted to ensure that the people outside knew he had the gun. The State questioned Appellant regarding a statement he had written in which he noted that he saw silhouettes approximately 15-20 feet in the street outside of his chain-link fence. Appellant testified that the statement regarding the silhouettes being outside the fence was a rough draft, that the punctuation was "wrong," and that he had intended to rewrite it. Appellant testified that the figures he saw never tried to climb his fence, enter his yard, or come into his home because "they knew" he had a .12-gauge shotgun. According to Appellant, he did not feel that he had threatened the men with his gun, but instead, had "warned" them by firing a warning shot into a sandbag. After first denying that it is a threat to tell someone, "[T]he next sound you hear is going to be that of my shotgun going off," Appellant conceded that it was, indeed, a threatening remark. He attempted to clarify the intent behind his actions and said, "I was trying to figure out how to get them out of my yard. You'd think letting off . . . a shotgun would do it." When it was noted that the two men were in the street rather than Appellant's yard, Appellant explained that he "always considered that part of the street [to be] my yard." Appellant admitted that he might have called the two men "niggers" several times and was not afraid of them at first. Appellant acknowledged that he only received verbal threats from the men. When Appellant was asked who he was threatening when he was videotaped in the police vehicle saying, "I am not forgetting this, you motherfuckers," he first answered, "[m]ight have been talking to my cats," and then stated he did not know to whom he was referring. Appellant claimed that he was in fear of his life and of being hurt but admitted that the men were outside the chain link fence to his property. Upon considering the draft jury charge again, the trial court included instructions regarding self-defense but, recognizing that both Appellant and the State were ambivalent about the application paragraph, omitted it without objection from either side. The charge was read to the jury on the following day without objection by Appellant. The jury convicted Appellant of deadly conduct and assessed punishment at two years' imprisonment.
DISCUSSION Standard of Review
When assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Sufficiency of the evidence is to be measured by the elements of the offense as defined by the hypothetically-correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. We give deference to "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19. In reviewing the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) ("it is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances"); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Guevara, 152 S.W.3d at 49. On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id. Our duty is to determine whether the explicit and implicit findings of the jury are rational in a light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992); Levario v. State, 964 S.W.2d 290, 294 (Tex. App.-l Paso 1997, no pet.). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). The introduction of conflicting evidence does not render evidence insufficient. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App 1996). We assume that the fact finder resolved conflicts in the evidence in favor of the jury's verdict. Id. Similarly, we presume that the trier of fact resolved any conflicting inferences in favor of the prosecution and must defer to that resolution. Id. Appellant was convicted of deadly conduct. A person commits the third-degree felony offense of deadly conduct if he knowingly discharges a firearm at or in the direction of one or more individuals. TEX. PENAL CODE ANN. §§ 22.05(b)(1) 22.05(e) (Vernon 2003). A person knowingly acts with respect to the nature of his conduct when he is aware of the nature of his conduct or the circumstances that exist. TEX. PENAL CODE ANN. § 6.03(b) (Vernon 2003). As we measure the sufficiency of the evidence by the elements of deadly conduct as defined by a hypothetically-correct jury charge for the case, Malik, 953 S.W.2d at 240, the evidence in this case must establish that Appellant knowingly discharged a firearm at or in the direction of Timothy Bustamante and Zaki Riley.Application
A. Legally-Sufficient Evidence
In his first issue, Appellant asserts that the evidence was legally insufficient to support a finding that he discharged his shotgun at or in the direction of Bustamante and Riley. We disagree. Appellant admitted that he fired his shotgun, "Teddy Bear," with the intent of driving Riley and Bustamante away from his yard, which he considered to include the public roadway abutting his property. We find this evidence legally sufficient to establish that Appellant knowingly discharged his firearm. TEX. PENAL CODE ANN. §§ 6.03(b), 22.05(b)(1) 22.05(e) (Vernon 2003); Malik, 953 S.W.2d at 240; Wheaton v. State, 129 S.W.3d 267, 273 (Tex. App.-orpus Christi 2004, no pet.) (evidence that trajectory of gunfire was aimed at the victim had she walked in front of the wall where the bullet hole was created, that defendant and victim had argued, that defendant had threatened to kill the victim if she left the house, and that defendant was in possession of a gun was legally sufficient to support deadly conduct finding). We next consider whether the evidence supports a finding that Appellant knowingly discharged the shotgun at or in the direction of Riley and Bustamante. The testimonial evidence indicated that Riley and Bustamante were in the middle of the public roadway, that Appellant was near his screen door, and that the two locations were separated by Appellant's fenced yard. The jury considered photographic and demonstrative evidence showing the proximity of Appellant's screen door, yard, and fence to the roadway abutting Appellant's property and leading toward the Snyder home. The jury considered the conflicting evidence regarding the direction in which Appellant fired his shotgun, including Appellant's testimony that he fired a "warning" shot at the sandbags near his door and the jury saw images of the screen door with a hole in it. Also before the jury for its consideration was Appellant's testimony that he was intoxicated and in a stupor, that he saw figures coming and was mistaking people for weeds, that he considered the street part of his yard, and had fired the gun to ensure "they" knew he had the gun. The jury heard testimony that Appellant was yelling profane and racial slurs at the men he saw, and Appellant admitted that he had referred to the men as "niggers." The jury also considered the contradictory evidence presented by the other witnesses, including Bustamante's statement that he ducked upon hearing Appellant shoot the gun and believed that Appellant fired at him. Riley stated that he did not take evasive action because he knew from his military experience that a shotgun blast could hit him regardless of what he did. Deputy Salgado testified that he determined Appellant had fired the shotgun at Riley and Bustamante, and Lucia Snyder testified that she did not go outside because she believed Appellant had fired at the two men and she did not wish to be shot. Looking at the events occurring before, during and after the commission of the offense in this instance, and relying on actions which show an understanding and common design to do the prohibited act, the combined and cumulative force of all the incriminating circumstances support the jury's conclusion that Appellant knowingly fired his shotgun, "Teddy Bear," at or in the direction of Riley and Bustamante, thus meeting the elements of deadly conduct. Malik, 953 S.W.2d at 240; Cordova, 698 S.W.2d at 111; Johnson, 871 S.W.2d at 186. Simply put, considering all the evidence in the light most favorable to the verdict, and based on all of the evidence and the reasonable inferences therefrom, we find that a rational juror could have found the essential elements of the offense of deadly conduct beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13; Powell, 194 S.W.3d at 506; Guevara, 152 S.W.3d at 49. Because the evidence is legally sufficient to support Appellant's conviction, we overrule Appellant's first issue on appeal.B. Jury-Charge Error
In his second issue, Appellant complains that the trial court erred by imposing a duty to retreat within the jury charge. We disagree.Standard of Review
Before the charge of the court is read to the jury, a defendant or his counsel must distinctly specify his objections to any errors of commission and omission in the charge or in failing to charge upon issues arising from the facts before the charge is read to the jury. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). In Almanza v. State, the Texas Court of Criminal Appeals recognized that Article 36.19 of the Texas Code of Criminal Procedure sets forth different standards of review for errors that are preserved by objection and those which are not. Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d 157, 159, 160, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). If error exists in the charge, we must determine whether sufficient harm resulted from the error as to require reversal. Almanza, 686 S.W.2d at 171; Torres v. State, 116 S.W.3d 208, 211 (Tex. App.-El Paso 2003, no pet.). Where, as here, no objection to the jury charge was made, before we may deem relief to be warranted, Appellant must show that he suffered egregious harm, that is, that he was denied a fair and impartial trial as a result of the complained-of error. Almanza, 686 S.W.2d at 171; Miramontes v. State, 225 S.W.3d 132, 145 (Tex. App.-El Paso 2005, no pet.); Torres, 116 S.W.3d at 211. In determining whether a jury-charge error resulted in egregious harm, we examine the charge as a whole, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; Miramontes, 225 S.W.3d at 145.Application
Appellant complains that the trial court erred in preparing the jury charge and improperly placed a duty upon him to retreat although he was in his house when the shotgun was fired. As Appellant failed to object to the charge upon this basis, we first determine whether error actually exists in the jury charge. Almanza, 686 S.W.2d at 171; Torres, 116 S.W.3d at 210-11. In support of his contention, Appellant directs us to sections 9.32(c) (d) of the Texas Penal Code, which currently provide:(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat. Tex. Penal Code Ann. §§ 9.32(c) (d) (Vernon Supp. 2009).These provisions remove the necessity for the finder of fact to consider the failure of the accused to retreat with regard to the use of force or deadly force in self-defense. However, sections 9.32(c) and (d) were not added to the Texas Penal Code and did not become effective until September 1, 2007. See Act of March 27, 2007, 80th Leg., R.S., ch. 1, § 3, § 5(a), § 6, 2007 Tex. Gen. Laws 1-2. Here, the elements of Appellant's deadly conduct offense occurred on August 26, 2007, several days before the effective date of the current provisions to which Appellant directs us. In short, sections 9.32 (c) and (d) are not applicable in this case. Consequently, we must evaluate Appellant's assertion of jury-charge error under the previous version of the statute as it existed on August 26, 2007, when the offense occurred. Id.; see Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.31, 1993 Tex. Gen. Laws 3586, 3598 and Act of May 27, 1995, 74th Leg. R.S., ch. 235, § 1, sec. 9.32, 1995 Tex. Gen. Laws 2141, 2142 (amended 2007 and currently codified as amended at TEX. PENAL CODE ANN. § 9.32 (Vernon Supp. 2009)); Davis v. State, 268 S.W.3d 683, 697 n. 3 (Tex. App.-Fort Worth 2008, pet. ref'd) (because elements of offense occurred prior to effective date of amendments to deadly-force-in-self-defense statute, analysis was conducted under previous statutory provisions). At the time the conduct occurred, section 9.32 of the Texas Penal Code provided:
(a) A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31;
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Tex. Penal Code Ann. § 9.32 (Vernon 2003).Therefore, the statute requires the fact finder to consider whether a reasonable person in Appellant's situation would not have retreated. TEX. PENAL CODE ANN. § 9.32(a)(2) (Vernon 2003). The trial court charged the jury regarding the use of deadly force in self-defense as follows:
AS TO THE LAW OF SELF-DEFENSE
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.
A person is justified in using deadly force against another if he is justified in using force against the other in self-defense; if a reasonable person in the actor's situation would not have retreated and 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 deadly force.
The use of force against another is not justified in response to verbal provocation alone; or if the actor provoked the other's use or attempted use of unlawful force, unless: the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter, and the other nevertheless continues or attempts to use unlawful force against the actor.
When a person is attacked, or an attempt is made to attack such a person, with unlawful force, and there is created in the mind of such person a reasonable expectation or fear of some bodily injury, then the law excuses or justifies such person in resorting to force to the degree that he reasonably believes is immediately necessary, viewed from his standpoint at the time, to protect himself from attack or attempted attack.
A person is under no obligation to retreat to avoid the necessity of repelling or defending, with force less than deadly force, against an attack or attempted attack by use of deadly force.
By the term "reasonable belief" as used herein is meant a belief that would be held by an ordinary and prudent person in the same circumstances as defendant.
You are instructed that you may consider all relevant facts and circumstances surrounding the assault, if any, and any previous relationship existing between the accused and the complaining witness, if any, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.The trial court's charge to the jury regarding the use of deadly force in self-defense comports with the statutory "retreat" provision of section 9.32(a)(2) that was in effect at the time the elements of the deadly conduct offense occurred here. Consequently, because we find that the trial court's charge was not erroneous, we need not conduct a harm analysis. Almanza, 686 S.W.2d at 171; Torres, 116 S.W.3d at 210-11. Appellant's second issue is overruled.