Miguel Orlando Renteria A/K/A Michael Orlando Renteria v. State

11th Court of Appeals Eastland, Texas Opinion Miguel Orlando Renteria a/k/a Michael Orlando Renteria Appellant Vs. Nos. 11-02-00062-CR & 11-02-00063-CR -- Appeals from Palo Pinto County State of Texas Appellee The jury convicted appellant on two charges of aggravated assault with a deadly weapon and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 20 years for each conviction. The jury imposed an additional fine of $5,000 in Cause No. 11-02-00063-CR. Appellant brings three issues on appeal. We affirm. The two charges of aggravated assault arise from an altercation occurring over the course of one evening between appellant and the female victim. Appellant and the victim had been involved in a romantic relationship for a brief period prior to the assault. The altercation occurred at the victim=s house. The record reflects that appellant had been staying at the victim=s house prior to the altercation. The victim was the only witness to the altercation who testified. Appellant arrived at the victim=s house sometime after dark on the night in question. When she confronted appellant regarding misrepresentations that he had purportedly made to her regarding his work history, an argument subsequently ensued. The victim asked appellant to leave her house numerous times during the argument, but he refused. She eventually told appellant, AIf you don=t stop [badgering me], I=m going to pop you in the mouth.@ He then climbed on top of her and choked her. After the victim fell to the floor, appellant struck the victim several times with his fists. The victim testified that she briefly escaped appellant=s attack by running into a bedroom. She attempted to call the police, but she was unable to complete the call because appellant ripped the phone cord from the wall. He then shoved the muzzle of a shotgun into her mouth as the struggle resumed. The victim was able to remove the gun=s barrel from her mouth immediately before appellant fired the gun. Appellant then dragged the victim to the living room, at which time he began striking her in the face with the butt of the shotgun. The attack eventually stopped. The victim testified that appellant then asked her to help him find his shoes. The victim attempted to run out of the back door of the house at this point, but appellant caught her and dragged her back into the living room. He then threw her down on a love seat; pointed the shotgun at her head; and told her that, if she got up again, he would blow her brains out. After pacing around the house and making a telephone call on another phone, appellant left the shotgun on a bathroom counter and walked into a bedroom. The victim then grabbed the shotgun and began firing it as appellant approached her, at which point appellant fled the house. A neighbor assisted the victim in calling the police. Appellant ran to another neighbor=s house and called the police from there. The record reveals that the victim suffered numerous facial fractures as a result of the assault and required extensive reconstructive surgery to repair the damage. The indictment in Cause No. 11-02-00062-CR alleges that appellant intentionally or knowingly threatened the victim with imminent bodily injury and that he used or exhibited a deadly weapon, to-wit: a firearm, during the commission of the offense. The indictment in Cause No. 11-02-00063-CR alleges that appellant intentionally, knowingly, or recklessly caused bodily injury to the victim by hitting her in the face and that he used or exhibited a deadly weapon, to-wit: a firearm, during the commission of the offense. Appellant argues in his first issue that the two convictions constitute multiple punishments for the same offense in violation of his double jeopardy protections. He acknowledges in presenting this contention that he did not raise a claim of double jeopardy at the trial court level. We must, therefore, determine if appellant is permitted to present his double jeopardy claim for the first time on appeal. The Court of Criminal Appeals recently addressed the presentation of a double jeopardy claim for the first time on appeal in Gonzalez v. State, 8 S.W.3d 640 (Tex.Cr.App.2000). The court held that a double jeopardy claim can be presented for the first time on appeal when: (1) the undisputed facts show that the double jeopardy violation is clearly apparent on the face of the record and (2) the enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, supra at 643. Our review of the record does not reveal a double jeopardy violation clearly apparent on the face of the record. As set forth below, we find that no double jeopardy violation occurred. Double jeopardy is prohibited under both the United States Constitution[1] and the Texas Constitution.[2] The double jeopardy clause embodies three essential guarantees: (1) it protects against a successive prosecution for the “same offense” after acquittal; (2) it protects against a successive prosecution for the “same offense” after conviction; and (3) it protects against multiple punishments for the “same offense.” See Iglehart v. State, 837 S.W.2d 122, 126-27 (Tex.Cr.App.1992). When a defendant is convicted of two or more crimes in a single trial, only the multiple punishment clause is implicated. See Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Cr.App.1990). The United States Supreme Court articulated the test used for determining the “same offense” for purposes of double jeopardy analysis in Blockburger v. United States, 284 U.S. 299 (1932). The Blockburger test asks whether each offense contains an element not contained in the other; if not, they are not the "same offense," and double jeopardy bars additional punishment and successive prosecution. See Mallett v. State, 65 S.W.3d 59, 68 (Tex.Cr.App.2001). Cause No. 11-02-00062-CR alleged that appellant committed the offense of aggravated assault by threatening the victim. See TEX. PENAL CODE ANN. 22.01(a)(2) (Vernon Supp. 2002). Cause No. 11-02-00063-CR alleged that appellant committed the offense of aggravated assault by causing bodily injury to the same victim. See TEX. PENAL CODE ANN. 22.01(a)(1) (Vernon Supp. 2002). Even though the two offenses have the same name and are defined within the same statute, they involve different elements. As such, they do not constitute the same offense under the Blockburger test. Moreover, the evidence does not indicate a single instance of conduct. See Ervin v. State, 991 S.W.2d 804, 814 (Tex.Cr.App.1999). Appellant threatened the victim with imminent bodily injury after his physical attack upon her concluded. Appellant’s first issue is overruled. Appellant complains in his second issue of the trial court denying his offer of testimony from the victim’s former husband regarding the victim’s alleged violent character. Appellant contends that the evidence was admissible to establish that the victim was the first aggressor. The Court of Criminal Appeals recently held in Torres v. State, 71 S.W.3d 758, 760 (Tex.Cr.App.2002), that a defendant “who raises the issue of self-defense” may introduce evidence of the victim’s violent character under TEX.R.EVID. 404(a)(2). The raising of any issue of self-defense is, therefore, a prerequisite to the admission of evidence regarding the victim’s violent character. Torres v. State, supra at 761 (“Before a specific, violent act is introduced, however, there must be some evidence of a violent or aggressive act by the [victim] that tends to raise the issue of self-defense.”) The trial court determined that appellant had not raised an issue of self-defense at the point in the proceedings when appellant sought to offer evidence of the victim’s violent character. A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Cr.App.2001). On the other hand, if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue. See Ferrel v. State, supra at 591. TEX. PENAL CODE ANN. 9.31(a) (Vernon Supp. 2002) provides that 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. In order to raise the issue of self-defense in an assault case, the evidence must indicate that the defendant used force to counter force and that the defendant’s use of force was reasonable. See Clifton v. State, 21 S.W.3d 906, 907 (Tex.App. Fort Worth 2000, pet’n ref’d). Viewing the evidence in the light most favorable to appellant, the issue of self-defense was not raised. As noted previously, appellant did not testify at trial. There was no evidence that appellant was trying to protect himself from the victim’s use or attempted use of force at the time of the altercation. The victim’s statement that she would “pop” appellant in the mouth if he did not stop badgering her did not raise an issue of self-defense because the use of force against another is not justified in response to verbal provocation alone. See TEX. PENAL CODE ANN. 9.31(b)(1) (Vernon Supp. 2002). Appellant’s second issue is overruled. Appellant’s third issue attacks the admission of two photographs depicting the victim’s injuries after the altercation. A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Cr.App.2001). An appellate court will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, supra at 615. Appellant first argues that the photographs were not relevant because the indictments did not allege that he committed aggravated assault by causing serious bodily injury. However, the indictment in Cause No. 11-02-00063-CR did allege that appellant caused bodily injury to the victim by hitting her in the face. Accordingly, the photographs were relevant because they evidenced the fact that appellant caused bodily injury to the victim’s face. Photographs are generally admissible where verbal testimony about the same matters is admissible. Emery v. State, 881 S.W.2d 702, 710 (Tex.Cr.App.1994). Appellant further argues that the probative value of the photographs were outweighed by their prejudicial effect. When determining whether the trial court erred in admitting relevant photographs into evidence, our review is limited to determining whether the probative value of the photos is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or needless presentation of cumulative evidence. See TEX.R.EVID. 403; Jones v. State, 944 S.W.2d 642, 651 (Tex.Cr.App.1996), cert. den’d, 522 U.S. 832 (1997); Long v. State, 823 S.W.2d 259, 271 (Tex.Cr.App.1991). The two photographs in question are 5" x 7" in size. One photograph depicts the victim’s face while the victim is wearing a neck collar and padding to stabilize her head. The other photograph depicts a close-up of the victim’s left eye. Both of the photographs reveal that the victim sustained serious facial trauma. However, the photographs do not appear to be enhanced in any way. Moreover, they are no more gruesome than the facts of the offense itself. Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Cr.App.1995). Our review of the record does not indicate that the trial court abused its discretion in admitting the photographs into evidence. Appellant’s third issue is overruled. The judgments of the trial court are affirmed. PER CURIAM August 15, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]U.S. CONST. amend. V provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [2]TEX. CONST. art. I, ' 14 provides: No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.