Ramon Sanchez, Jr. v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-024-CR RAMON SANCHEZ, JR., APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY NO. 364,626, HONORABLE DAVID CRAIN, JUDGE PRESIDING (1) This appeal is taken from a conviction for reckless conduct. Tex. Penal Code Ann. § 22.05 (West 1989). Appellant waived trial by jury. In a bench trial the trial court found appellant guilty and assessed his punishment at confinement in the county jail for one hundred and eighty days and a fine of fifteen hundred dollars. The imposition of the sentence was suspended. Appellant was placed on probation for two years subject to certain conditions. Appellant advances four points of error. In the first two contentions, appellant challenges the sufficiency of the evidence to sustain the conviction because the State failed to prove beyond a reasonable doubt that he did not act (1) in self-defense or (2) in defense of a third person. In his third point of error, appellant contends that the trial court erred in forcing him to proceed with the cross-examination of Robert Martinez without the production of Martinez's written pretrial statement to the police. In his last contention, appellant urges that the trial court erred in sustaining objections to certain questions propounded by appellant, the answers to which would have demonstrated the reasonableness of his belief that he was justified in acting in defense of a third person. He claims the trial court's action denied him his constitutional rights to due process of law, the right to confront witnesses against him, and the effective assistance of counsel. We will affirm the conviction. Section 22.05 of the Texas Penal Code provides: (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury . . . (b) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded. (c) An offense under this section is a Class B misdemeanor. Tex. Penal Code Ann. § 22.05 (West 1989). The information charged in pertinent part that appellant on or about October 16, 1991, "did then and there recklessly engage in conduct that placed Robert Martinez in imminent danger of serious bodily injury by knowingly pointing a firearm in the direction of another, to wit: Robert Martinez." The instant offense arose out of a situation where appellant and another young man, Joseph Martinez, were vying for the affections of a sixteen-year-old girl, S___ S___. S___ S___ had been the girlfriend of Joseph Martinez, but had broken off the relationship. Appellant did not want Joseph Martinez to have any contact with S___ S___. Robert Martinez, age 15, the stepbrother of Joseph and the complaining witness, was the State's principal witness. Robert testified that on the afternoon of October 16, 1991, Joseph asked him to go to S___ S___'s house at 1500 Eva Street and tell her to come to the Martinez house at 204 West Monroe Street. It appears that S___ S___'s nearby house could be reached by walking down an alley. Robert walked down the alley and as he approached S___ S___'s house, he saw appellant on the front porch. Appellant then went to his car, opened the trunk, pulled out a shotgun, loaded and pumped it. Robert ran down the alley. Appellant caught up with him. Appellant poked the loaded shotgun barrel into Robert's back several times and told Robert that he would kill Joseph and the stepfather (Robert Rivera) the next time that he saw them. Appellant made no response to Robert's request that appellant not shoot him. At the time, Joseph was on the back porch of the Martinez house. Appellant called to Joseph to come "there." Eventually, Robert began to walk to the Martinez house. When he got there, the police were called. Before the arrival of the police, Robert saw appellant driving his car up the alley. Twenty-year-old Joseph Martinez corroborated much of Robert's testimony. He acknowledged that he sent Robert as a messenger to S___ S___. He walked part of the way down the alley with Robert. He was able to see appellant take the shotgun from appellant's car. When Robert began to retreat, Joseph returned to the Martinez house. He was able to see appellant poke Robert in the back with the shotgun barrel. He heard appellant yelling for him to come "there." When Robert was able to separate himself from appellant and reached the house, Joseph called the police. Testifying in his own behalf, appellant stated he was at S___ S___'s house on the occasion in question when he heard someone approaching the house. Fearful, because of previous threats and confrontations with Joseph Martinez and the stepfather, Robert Rivera, and having knowledge of an assault upon S___ S___ by Joseph, appellant went to his car and retrieved his shotgun which he loaded and pumped. Appellant then learned that the approaching individual was neither Joseph Martinez nor Robert Rivera. He escorted Robert Martinez back to the alley. Appellant claimed he either carried the shotgun over his shoulder or at "arm's length." He admitted that the shotgun "swung" at the end of his arm and may have poked Robert in the back while they were walking. Appellant acknowledged that he had called out to Joseph to come "there," but Joseph did not accept the invitation. Robert began to run and he and Joseph disappeared into the Martinez house. Appellant related that he had driven up the alley before the incident, not afterwards. On direct examination, appellant admitted that he was trying to make an impression on "these people" because to his knowledge they had a violent past "and, therefore, to impress upon them that if they wanted to be violent with me, I may have to be violent with them." The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the court's judgment, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). The standard for review is the same in both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991); Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990). In a trial before the court, the trial judge is the trier of fact, the judge of the credibility of the witnesses and the weight to be given to their testimony. The trier of fact is entitled to accept or reject any or all of the testimony of any witness. Bellah v. State, 653 S.W.2d 795, 796 (Tex. Crim. App. 1983); Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); see also Wright v. State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1980). The elements of reckless conduct as defined by section 22.05 of the Penal Code are: (1) a person (2) recklessly (3) engages in conduct (4) that places another in imminent danger of serious bodily injury. Bell v. State, 693 S.W.2d 434, 438 (Tex. Crim. App. 1985). The information included these elements and added "by knowingly pointing a firearm in the direction of another to wit: Robert Martinez." See Tex. Penal Code Ann. § 22.05(b) (West 1989). Viewing the evidence in the light most favorable to the trial court's judgment, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. We understand appellant to disagree only to the extent that he claims that the State failed to prove beyond a reasonable doubt that he (1) did not act in self-defense or (2) in defense of a third party. See Tex. Penal Code Ann. §§ 9.31, (2) 9.33 (West 1974). Self-defense and defense of a third party are justifications excluding criminal responsibility. Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979), cert. denied, 446 U.S. 944 (1980). These are affirmative defenses which the defendant must prove by a preponderance of the evidence. Tex. Penal Code Ann. § 2.04(a) (West 1974). Saxton v. State, 804 S.W.2d 910, 912 n.5, 913 n.7 (Tex. Crim. App. 1991); Nance v. State, 807 S.W.2d 855, 864 (Tex. App.--Corpus Christi 1991, pet. ref'd). Thus, the defense has the burden of production in the first place. Once the burden of producing sufficient evidence to raise the defenses has been met, the burden of proof shifts to the State to "disprove" the defenses beyond a reasonable doubt. This latter burden is called the burden of persuasion. Saxton, 804 S.W.2d at 913-14. For the prosecution to "disprove" a defense means no more than to rebut or to show in the sense of countering by argument, or at its option, evidence. Id. at 917 n.8 (Clinton, J. dissenting). Thus, the State is not required to affirmatively produce evidence to refute self-defense or defense of a third party theories, but rather to prove its case beyond a reasonable doubt. Id. at 913; Nance, 807 S.W.2d at 864. In the instant case, were the issues of self-defense and defense of a third party raised by the evidence? Generally, the defenses of self-defense and defense of a third party require the accused to admit the commission of the offense to justify or excuse his actions. See Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986); Graf v. State, 807 S.W.2d 762, 767 (Tex. App.--Waco 1990, pet. ref'd); cf. Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990) (holding that Sanders speaks too generally in deciding that all defenses are in nature of confession and avoidance). Here, appellant entered a plea of not guilty and testified that he was not guilty of reckless conduct. We need not rely, however, upon any admission. The evidence shows that appellant was in control of the situation, that he followed Robert Martinez with a loaded shotgun, poking Martinez in the back. Martinez was an unarmed, 15-year-old boy who was trying to get away and return home. Appellant's testimony failed to describe any use or attempted use of unlawful force by Robert Martinez or by Joseph Martinez, the brother who was on the porch of the Martinez house. The evidence also fails to show how appellant's poking of Robert Martinez with a shotgun was "immediately" done to protect himself from the unarmed Martinez. The third party apparently was S___ S___. Her whereabouts during the incident is not clear from the record. Joseph Martinez indicated at one point that he saw her on the porch of her house. The defense of a third party is raised only if the actor reasonably believes that his intervention is immediately necessary to protect the third person. McDonald v. State, 597 S.W.2d 365, 367 (Tex. Crim. App.), cert. denied, 449 U.S. 1010 (1980); Nance, 807 S.W.2d at 863; Constancio v. State, 643 S.W.2d 153, 154 (Tex. App.--Austin 1982, no pet.). We conclude that appellant did not sustain his burden of production. The defensive issues were not raised by the evidence. If it can be argued otherwise, we observe that self-defense and defense of a third party are fact issues to be determined by the trier of fact. In addition to finding all of the elements of reckless conduct, the trial court as a rational trier of fact, could have found against appellant on the issue of the defenses beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914; see also McGee v. State, 852 S.W.2d 551, 557 (Tex. App.--Tyler 1992, pet. ref'd). The first two points of error are overruled. (3) In his third point of error, appellant contends that the trial court erred when it forced him, over objection, to proceed with the cross-examination of Robert Martinez without the production of his statement. During the cross-examination of Martinez, it was established that he had given a sworn statement to the police. Appellant's counsel requested a copy of the statement, apparently for the purposes of cross-examination and possible impeachment. See Tex. R. Crim. Evid. 614. The trial court ordered that the statement be given to defense counsel. A brief recess was taken. When the trial resumed, the prosecutor stated that he did not have such statement in his possession. He had given the defense counsel a copy of the offense report. He then stated that a supplement attached thereto set out verbatim the statement given by the witness. The prosecutor suggested the contents of the statement could be authenticated through the witness. At this point, the trial court ordered the bailiff to check with the Austin Police Department and to obtain a copy of the statement if one was available. The bailiff also was instructed to have any available statement read to him over the telephone so that it could be compared to the statement attached to the offense report. The trial court noted that the trial might have to be continued to obtain the testimony of witnesses who were in jail, and that Robert Martinez could be recalled for further cross-examination if the need arose. The trial court ordered the proceedings to go forward. Appellant's counsel objected that "under Rule 612(a), (4) I don't think we can proceed without that statement." The trial court overruled the objection. The record is silent as to whether the statement was ever obtained. No such statement is found in the record. See Tex. R. App. P. 50(d). Appellant's complaint on appeal is not that he was denied the statement for purposes of cross-examination, but concerns the refusal of the trial court to halt the proceedings until such statement, if available, was produced. The matter was within the sound discretion of the trial court conducting the proceedings. Appellant does not cite authority or present argument showing an abuse of discretion. See Tex. R. App. P. 74(f). On appeal, appellant relies solely upon rule 614(a) concerning the production of statements of witnesses, but the rule is not germane to any required cessation of the trial proceedings. Moreover, appellant's trial objection on the basis of rule 612(a) does not comport with the complaint or authority cited on appeal. Nothing is presented for review. Rejac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). The third point of error is overruled. In his fourth point of error, appellant urges that the trial court erred by sustaining the State's objections to questions the answers to which would have demonstrated the reasonableness of his belief that he was justified in acting in defense of S___ S___. In a multifarious vein, appellant, in the same point of error, complains that the court's action violated his federal and state constitutional rights to due process of law, the right to confront the witnesses against him, and the right of effective assistance of counsel. These latter claims are not briefed. No authority is cited and no argument advanced. Nothing with regard to these claims is presented for review. Tex. R. App. P. 74(f); see also Kelley v. State, 817 S.W.2d 168, 175 (Tex. App.--Austin 1991, pet. ref'd). As to appellant's initial complaint under this point, we observe that appellant sets out four questions in his brief. Only two of these questions propounded to appellant or S___ S___, defense witnesses, went unanswered because of the State's objections. As to these two questions, appellant failed to perfect his bill of exception. Tex. R. Crim. Evid. 103(a)(2); Tex. R. App. P. 52(b). We are unable to appraise appellant's contentions as to these questions. Nothing is presented for review. As to the other two questions set forth in the brief, one was answered "yes" without objection. The other question directed to appellant was whether he had ever known Joseph Martinez to injure anyone with a B.B. gun. The question was answered "yes" before the State's objection was sustained. It appears that the trial court sustained the objection on the basis of relevancy. See Tex. R. Crim. Evid. 401 & 402. Appellant has not shown that the question was relevant or that a substantial right of his was affected by the evidentiary ruling. Tex. R. Crim. Evid. 103(a). The error, if any, was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2). The fourth point of error is overruled. The judgment is affirmed. John F. Onion, Jr., Justice Before Justices Jones, Kidd and Onion* Affirmed Filed: March 30, 1994 Do Not Publish * Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988). 1. The judgment was signed by Judge Crain. The statement of facts reveals that the trial on the merits was tried before the Honorable Wilfred Aguilar, Judge of County Court at Law No. 5, Travis County, Texas. 2. Section 9.31(1) provides in pertinent part: "a person is justified in using force against another when and to the degree he reasonably believes that force is necessary to protect himself against the other's use or attempted use of unlawful force." 3. Appellant does seek to rely upon section 9.04 of the Texas Penal Code since it was his stated purpose to impress "these people" that he would use deadly force against them if the need arose. Section 9.04 reads: The threat of force is justified when the use of force is justified by this chapter. For the purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force. Tex. Penal Code Ann. § 9.04 (West 1974). Appellant's reliance upon the statute is misplaced. An actor is justified in threatening force only when he is justified in using force. Appellant's reliance upon prior confrontations with Rivera, a communicated threat from Rivera, an angry telephone call with Evan Martinez (Joseph's mother), which appellant initiated, and appellant's knowledge of a prior assault upon S S by Joseph does not call for a different result. 4. Tex. R. App. P. 612(a) deals with examining a witness concerning a prior inconsistent statement. At the point of the objection, it had not been established that Robert Martinez had given a prior inconsistent statement.