Opinion
No. 04-15-00245-CR
05-11-2016
Julio Alejandro ZUNIGA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR0936
Honorable Raymond Angelini, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
A jury found appellant, Julio Alejandro Zuniga, guilty of murder and assessed punishment at fifteen years' confinement. In two issues on appeal, appellant asserts the evidence is legally insufficient to support the jury's implicit rejection of his claim (1) that he acted in self-defense and (2) that he acted in defense of a third person. We affirm.
BACKGROUND
A jury found appellant guilty of the November 3, 2013 murder of Billy Schaff. The forensic pathologist testified Schaff suffered from three gunshot wounds: two shots to the back of his right upper arm, which did not cause any significant injury, and a third shot that entered his right upper ear and went into his skull and brain resulting in Schaff's death. She said the appearance of the three wounds suggested the bullets first went through something—like a car windshield—before hitting Schaff's body.
San Antonio Homicide Detective Andrew Howard testified regarding his interrogation of appellant about the events that lead to the shooting death of Schaff. After he was shot, Schaff crashed his car a few houses away from a house located at 9719 Gold Dust in Bexar County. Howard testified the shooting actually occurred at the Gold Dust house. Howard said several witnesses in the neighborhood who heard the shooting were interviewed. Through these neighbors, Howard learned Aimee Aubin-Dubowik lived at the Gold Dust house. Aimee was not present at the scene when the shooting was being investigated, but Howard learned she had, at one point in time, dated Schaff. Howard soon developed appellant, who also was not present at the scene, as a suspect, obtained an arrest warrant, and eventually interrogated appellant at the Bexar County Jail.
Appellant did not testify in his behalf at trial, but his interrogation was recorded and played for the jury. During the interrogation, appellant permitted Detective Howard access to text messages on appellant's cell phone. The phone contained text messages between appellant and Schaff from the early morning of the day Schaff was killed. The texts begin with sexualized taunts between the two men, and then devolve to the following texts:
Schaff: U don't do shit i [sic] am a beast you better ask aimee [sic].
Appellant: I hunt beasts.
Schaff: I'll be comeing [sic] the game is stepped up bang bang bitch [sic].
. . .
Schaff: Bang bang bang bang im [sic] comeing [sic] u can count on it bitch.
Also, during the interrogation, appellant gave the following explanation of the events leading to his shooting Schaff. Appellant said that the night before the shooting, he, Aimee, and other friends went to a bar. Schaff, who was also at the same bar, began to taunt and threaten appellant and Aimee. Appellant said he was scared because he knew Schaff was a member of a gang. Appellant said that after he and his friends left the bar, they went to another bar. When they later returned to Aimee's house, appellant believed he had to protect himself; therefore, he loaded a shotgun and placed it in his car. Appellant and Aimee then drove to the home of other friends, where they stayed until about 3:00 a.m. at which time they returned to Aimee's house. Later that day, appellant brought the shotgun inside Aimee's house and they again went out. When he and Aimee returned to her house, they went to sleep. Appellant said they had been asleep for about thirty minutes when they were awakened by something "coming through the [bedroom] window." Appellant said he could hear Schaff outside and then he saw Schaff at the window. Appellant said he was scared when he heard "bangs," which he thought were gun shots. Appellant got his shotgun and went to the front door of the house, where he opened the door and fired at Schaff who was standing on the street. He saw Schaff get into his car, he saw the car move away, and he fired a second time at the car's engine. Appellant said he fired at the car's engine to stop Schaff from leaving. Appellant insisted Schaff pointed "something" at him.
After firing the shotgun the second time, appellant shut the door and went to look for Aimee inside the house. He told Aimee they had to leave because he did not know if Schaff would come back. When appellant and Aimee left her house, appellant said he saw Schaff's car, which had rolled to the side of the road a few houses up the street away from Aimee's house.
When asked if he would have done anything different, appellant told the detective he would not have fired the second shot. When asked what he was trying to accomplish, appellant said he wanted to "spook [Schaff] off" so that he and Aimee could leave. When asked why he did not wait for the police, appellant said he was afraid. Appellant insisted he did not shoot his gun in anger. Appellant said "[i]f it wasn't him [Schaff], it would have been me."
Howard said no weapon was found in Schaff's car.
Aimee was the only witness called by the defense. Aimee said she had known Schaff for almost fifteen years, but they only started dating in early 2013 and Schaff eventually moved into Aimee's house on Gold Dust. She described Schaff as someone who could be very joyful, but who also had a "dark side" and could be violent. She said Schaff threatened her and often hit her. Aimee said Schaff treated her like his possession, she was not a person, and she belonged to him. Aimee and Schaff stopped dating in September 2013. Although she had made Schaff leave her house, she said he would come by every day, bang on her bedroom window, and call her name. She said he would come to her house at 3:00 a.m. or 4:00 a.m. in the morning. Aimee testified Schaff came to her house in mid-September 2013 and took her air-conditioning window unit. She said she did not replace the window, and instead, just put wooden planks over the window opening. She said she was afraid of Schaff. Aimee said Schaff told her he did not want her to be with appellant or anyone else; he wanted her "isolated."
Aimee testified she met appellant about a month before the November 2013 shooting. Aimee said that on the evening before the shooting, she saw Schaff at the bar she went to with appellant and others, and Schaff acted like he was jealous. She felt "intimidated" by Schaff, worried, and scared as she and the others left the bar and walked to their car. She described Schaff as "pretty irate." Aimee said appellant showed her a few of the text messages from Schaff, but appellant did not appear afraid.
Aimee testified that on the morning of the shooting, she and appellant were awakened by the sound of Schaff hitting the boards on her window and calling her name. She thought he pushed the boards aside and reached into her bedroom. When Aimee heard Schaff hit the board over the window, she was scared and she ran to a back bedroom where the windows were not covered with burglar bars and, therefore, she and appellant could get out of the house, "hop the fence," and run away from Schaff. She remembered asking appellant to come with her, but appellant said "[i]t's going to be okay." Aimee described appellant as calm and rational and not intimidated by Schaff. Aimee said she was terrified. She said she heard "more yelling and whatnot, and then [she] heard two shots and a crash, and that was it." When Aimee and appellant left her house, she drove a car she thought belonged to either appellant or his friend. At some point she realized the back window of the car was broken. Later, she found a brick in the back that Schaff had thrown through the window.
Although Aimee testified she could not hear specifically what appellant and Schaff said to each other, she was shown the statement she gave to the police after the shooting. In her statement, she said that when Schaff was outside her house, he threatened to burn the house down and kill her. In her statement she also said she saw Schaff try to come through her window and that is when she ran into another room.
As she and appellant drove away from her house, Aimee said she did not know Schaff had been shot and she "was freaking out" because she thought Schaff would blame her for his crashing his car. As she and appellant drove away, Aimee said appellant said "I hope I didn't shoot him." She asked appellant if Schaff shot at her house and appellant replied, "I don't know." She said appellant seemed calm.
The jury also saw a surveillance video taken from the camera of one of Aimee's across-the-street neighbors. At about time-stamp 28:35, Schaff parked his car in Aimee's driveway and, for several minutes, walked around the front of her house and approached her front door and window. At about the 32:10 mark, Schaff walked back to his car, and then walked to another car in the driveway and threw something through the back window of the car. Schaff then returned to his car and got inside. The front door of the house can be seen opening and, between the 32:25 mark and the 32:28 mark, Schaff reversed out of Aimee's driveway and what appears to be a flash can be seen from the front door of the house. Schaff's car pulled into the street and moved forward down the street out of the camera's view. At about the 32:30 mark, what appears to be another flash can be seen from the front door of the house. At about the 35:36 mark, Aimee and appellant got into their car, backed out of her driveway, and drove in the opposite direction from where Schaff had crashed his car.
APPLICABLE LAW
Appellant does not challenge the sufficiency of the evidence to support the jury's finding of the essential elements of murder beyond a reasonable doubt. Instead, he challenges the sufficiency of the evidence to support the jury's rejection of his self-defense and defense of a third person claims.
A. Self-Defense
To prevail on a claim of self-defense with the use of deadly force, a defendant must prove: (1) he would have been justified in using force against the other person; and (2) it was reasonable to believe that "deadly force [was] immediately necessary [for protection] against the other's use or attempted use of unlawful deadly force." TEX. PENAL CODE ANN. § 9.32(a) (West 2011). "[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Id. at § 9.31(a). The use of force against another is not justified in response to verbal provocation alone. Id. at § 9.31(b)(1).
"A person has the right to defend himself from apparent danger to the same extent as he would if the danger were real." Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Thus, under certain circumstances, a person may use deadly force against another, even if the other was not actually using or attempting to use unlawful deadly force. See Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. App. 1976); Dugar v. State, 464 S.W.3d 811, 818 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd).
The only requirement is that the person must be justified by acting against the danger "as he reasonably apprehends it." See Hamel, 916 S.W.2d at 493; see also Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984) (noting defendant would be entitled to a self-defense instruction if he reasonably believed his brother was using or attempting to use unlawful force, and it was "immaterial" that the defendant was not in fact attacked by his brother). The reasonableness of a defendant's belief that force is immediately necessary is viewed from the defendant's standpoint at the time that he acted. See Kolliner v. State, 516 S.W.2d 671, 674 (Tex. Crim. App. 1974); Dugar, 464 S.W.3d at 818.
B. Defense of a Third Person
A person is justified in using force against another to protect a third person if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under section 9.31 in using force to protect himself against the unlawful force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes his intervention is immediately necessary to protect the third person. TEX. PENAL CODE at § 9.33.
C. Standard of Review
Once a defendant produces some evidence raising the issues of self-defense and defense of a third person, the State bears the burden of persuasion to show beyond a reasonable doubt that the defendant's actions were not justified. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). To meet its burden of persuasion, the State is not required to produce additional evidence. Saxton, 804 S.W.2d at 913. If the jury finds the defendant guilty, it has made an implicit finding against any defensive theory raised by the defendant. Id. at 914; see also Zuliani, 97 S.W.3d at 594.
When a defendant challenges the legal sufficiency of the evidence to support the jury's implicit rejection of his defense claims, we do not look to whether the State presented evidence that refuted appellant's defense testimony. Saxton, 804 S.W.2d at 914; see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Instead, we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and also would have found against appellant on the defense issues beyond a reasonable doubt. Id.
Finally, a jury is entitled to resolve any inconsistencies in the evidence, and is free to accept or reject some or all of any witness testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Zuniga v. State, 393 S.W.3d 404, 413 n.2 (Tex. App.—San Antonio 2012). We defer to the jury's determinations of witness credibility and weight of the evidence, and may not substitute our judgment for that of the fact finder. See Brooks v. State, 323 S.W.3d at 899; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury"); Zuniga, 393 S.W.3d at 413 n.2.
DISCUSSION
In this case, the jury had before it appellant's testimony that he feared for his life, he feared for Aimee's life, and he did not intend to shoot Schaff. The jury also heard Aimee's testimony that she wanted appellant to leave from the back of the house with her but he refused, and he appeared calm and rational and not intimidated by Schaff. The jury viewed the security camera video from Aimee's neighbor that clearly showed appellant twice fired his weapon after Schaff got into his own car and was driving away from the Gold Dust house.
The jury also was able to consider appellant's actions after the shooting. The jury heard appellant's explanation for why he and Aimee left her house after the shooting—he was scared and he did not know if Schaff would return to Aimee's house. But, "[e]vidence of flight evinces a consciousness of guilt." Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007); see also Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) ("a factfinder may draw an inference of guilt from the circumstance of flight"). Appellant's flight from the house constitutes an additional piece of incriminating circumstantial evidence. And, in this case, an inference of guilt based on flight was heightened by the conflict within appellant's own testimony: he first stated he shot at Schaff's car to "spook [Schaff] off," but he later testified he shot at the engine of Schaff's car to stop Schaff from leaving.
Viewing all the evidence in the light most favorable to the prosecution and deferring to the jury's determination of credibility, we conclude the jury rationally could have found each element of the offense was proven beyond a reasonable doubt, and rationally could have rejected appellant's self-defense and defense of a third person claims.
CONCLUSION
We overrule appellant's issues on appeal and affirm the trial court's judgment.
Sandee Bryan Marion, Chief Justice Do not publish