Opinion
No. 05-10-00583-CR
Opinion issued November 29, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F09-56231-Q.
Before Justices MORRIS, O'NEILL, and FILLMORE.
OPINION
A jury convicted Santiago Barrera Rubio of murder. Now on appeal, he complains the evidence against him is legally insufficient, the trial court erred in submitting a jury instruction on provoking the difficulty, and he received ineffective assistance of counsel. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Appellant shot the deceased in a bootleg house where men gathered to drink liquor and use drugs at all hours of the day and night. Angel Castillo heard the shooting while he was lying down in a bedroom of the house. He came out and found the deceased's body on the floor. The deceased already appeared to be dead. Castillo had seen appellant and the deceased drinking at the house earlier that night. Appellant had gotten into an argument with someone else, and Castillo had taken that man home. When Castillo returned to the house at approximately 2:00 a.m., appellant was no longer there. Castillo ate and then laid down on a bed because his head was hurting. While he was on the bed, he heard one gunshot followed by the sound of something heavy falling to the floor. Then he heard several more gunshots. Castillo locked himself in the bedroom. He thought that a robbery was occurring. He grabbed a shotgun that was in the bedroom and hid under the bed for approximately 20 minutes. After that, he heard the sounds of cars starting and had the impression that people were leaving. When he emerged from the bedroom, no one was left in the house but the deceased on the floor. Castillo did not recognize him at that time. Outside, he saw a car with its lights on. Castillo ran through the neighborhood with the shotgun, screaming for someone to call the police. He thought someone was chasing him. He broke into a house by throwing the shotgun through the window. When an officer arrived, Castillo ran to the squad car and took the officer to the deceased's body. Castillo admitted that he had previously been convicted of theft and delivery of a controlled substance. Sabas Liberato testified that he had also been at the bootleg house the night of the offense. He claimed he had been sleeping on a sofa in the house during the shooting. He testified that the shooting woke him up but he did not see who did it. He also claimed he never saw any fighting or guns at the house while he was there. Liberato stated that after the shooting, he walked out of the house without ever seeing the deceased's body. Approximately eight months after the offense, Dallas police officer Eduardo Ibarra spoke with appellant in a videotaped interview. Appellant told Ibarra that before the offense he was aware the deceased carried a gun. He and the deceased had previously been in a fist fight. After the fight, appellant claimed, the deceased warned him that they would fight again and he would not be hitting appellant just with his hands. Appellant stated that people had warned him to "watch his back" because the deceased had said he was going to kill him. According to appellant's interview with Ibarra, he was at the bootleg house with his nephew Adam Rubio when the deceased arrived. Appellant gave Ibarra several different and contradictory versions of how the shooting took place. In the first, appellant said that while he was bending down to get a beer, the deceased pulled out a .38 caliber gun and appellant rushed to get it out of his hand. Appellant claimed that the deceased had aimed the gun at him, so when he took it from him he immediately shot the deceased in the chest. Then, appellant claimed, he left the scene. When asked about the SKS assault rifle he owned, appellant said that he had it in the car on the date of the offense. He stated that while he was wrestling with the deceased, his nephew brought the SKS inside the house and leaned it against a nearby wall. Appellant then stated that he grabbed the assault rifle and shot the deceased twice in the chest. Appellant later claimed that his nephew had brought in the assault rifle before the deceased pointed his .38 at him. In that retelling, appellant stopped wrestling the deceased over the .38, grabbed the SKS, shot the deceased twice in the chest, then left with the deceased's gun. Still later in the interview, appellant said that he had shot the deceased in the head after he shot him in the chest. Ultimately, appellant admitted to Ibarra that his wife had warned him not to go back to the bootleg house with the SKS. Appellant said that he was drunk at the time and that he went there "to ask [the deceased] if he actually wanted to kill me. . . ." Appellant stated that he went to the house with the intent to have a confrontation with the deceased. At that point in the interview, appellant also admitted that he — rather than his nephew — had been the person who had brought the SKS into the house. Appellant stated, "Well I just thought, well, we'll both get to fight it out once and for all. . . . And if he kills me, let him kill me once and for all." When asked again why he went to the bootleg house, knowing the deceased was there, appellant stated that he "went to have a fight with [the deceased]." He continued, "Either he kills me or I kill him once and for all." When asked if he went with the intent to kill the deceased, appellant said, "Well to kill him no. I just went there for the two of us to have a fight. You know, one against the other." Appellant initially told Ibarra that he threw the two guns into a river, but he later admitted that they were hidden in his brother's house. The brother agreed to allow police to search his house and led them to the location of both guns. Shell casings from both of the firearms were found at the scene of the offense, but neither gun could be determined definitively to be the murder weapon. The deceased's autopsy revealed that he had sustained five gunshot wounds to the head, and none to the chest. It appeared from the gunpowder stippling around several of the wounds that the shooter was one to three feet away at the time of at least three of the shots, which would be consistent with the shooter in a standing position over the deceased on the ground. One of the shots, which only grazed the deceased, appeared to have been shot from a distance of greater than three feet. The deceased's blood alcohol level was over the legal limit for driving, and there was methamphetamine in his system as well. Appellant's nephew, Adam Rubio, testified for the defense. He admitted that they were drinking together the night of the offense but denied that they took any illegal drugs. He claimed that appellant had bent down to get a beer when the deceased walked into the bootleg house and pulled out his gun. Rubio said to his uncle, "[W]atch it because you're going to be shot at." Then, according to Rubio, appellant moved to the side, grabbed his rifle, and "beat [the deceased] at the shot." Rubio denied seeing his uncle take the deceased's gun or shoot him three times in the head after the initial shot. He claimed he fled the scene after his uncle shot the deceased with the rifle. Castillo testified that appellant's nephew had threatened him that if he said "anything" at trial, "it was going to go bad on me."Discussion
In his first issue, appellant complains the evidence is legally insufficient to support the jury's rejection of his self-defense claim. In a legal sufficiency challenge, we review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must give deference to "the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather 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 self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). In this case, the evidence clearly showed that appellant shot the deceased. The only issue was whether appellant's claim of self-defense, supported by the testimony of his nephew, was credible. When given the opportunity to explain his self-defense justification, however, appellant did so in several different versions. Moreover, given the family relationship, appellant's nephew could have a bias affecting his testimony about appellant. It was the jury's role to assess witness credibility in the case. Deferring to the jury's determination, we conclude the evidence is legally sufficient to support appellant's conviction. We resolve appellant's first issue against him. In his second issue, appellant complains the trial court erred in submitting to the jury an instruction limiting the self-defense justification if the jury believed appellant had provoked the difficulty. Generally, "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." Tex. Penal Code Ann. § 9.31(a) (West 2011). One limitation on the right to self-defense is the doctrine of provocation, also known as "provoking the difficulty." See Smith v. State, 965 S.W.2d 509, 512 (Tex.Crim.App. 1998). Under the penal code, the use of force against another is generally not justified if the actor provoked the other's use or attempted use of lawful force. See Tex. Penal Code Ann. § 9.31(b)(4). The doctrine of provocation, however, requires an element of intent that is not explicit in the penal code. See Mendoza v. State, 349 S.W.3d 273, 279 (Tex. App.-Dallas 2011, no pet.). A charge on provocation is required when there is sufficient evidence that (1) the defendant did some act or used some words which provoked the attack on him, (2) such act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Smith, 956 S.W.2d at 513. A provocation instruction should be submitted to the jury only "when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt." Id. at 514. A defendant may have a desire that the deceased will attack him, or he may seek the deceased with the intent to provoke a difficulty, but the defendant must go further and do or say something which actually provokes the attack before he will lose his right to self-defense. Smith v. State, 965 S.W.2d 509, 514 (Tex. Crim. App. 1998). The elements of provocation are fact questions for the jury. See Thomas v. State, 750 S.W.2d 324, 325 (Tex. App.-Dallas 1988, pet. ref'd). Our inquiry is whether "a rational jury could have found provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to giving the instruction." Id. Here, among appellant's contradictory statements to Ibarra about the shooting is appellant's admission that he returned to the bootleg house with the assault rifle, knowing the deceased would be there. His wife had warned him not to return with the rifle. Yet he persisted in going to the house to ask the deceased if he actually wanted to kill him. He admitted his intent was to have a confrontation with the deceased. Appellant stated, "Well I just thought, well, we'll both get to fight it out once and for all. . . . And if he kills me, let him kill me once and for all." He later clarified, "Either he kills me or I kill him once and for all." Viewing this evidence in the light most favorable to the jury receiving the provocation instruction, we conclude a rational jury could have found every element of provocation beyond a reasonable doubt. See Fink v. State, 97 S.W.3d 739, 742 (Tex. App.-Austin 2003, pet. ref'd); Rodrigquez v. State, 641 S.W.2d 669, 673 (Tex. App.-Fort Worth 1982), aff'd, 710 S.W.2d 60 (Tex. Crim. App. 1986). By this evidence, appellant returned to the bootleg house looking for a fight with the deceased and believing that when the fight was over one of them would be dead. The trial court did not err in including this instruction in the jury charge. We resolve appellant's second issue against him. In his third issue, appellant complains he received ineffective assistance of counsel. He alleges that his trial counsel may have failed to object adequately to the provocation instruction discussed above and failed to request an instruction on his right to arm himself and seek an explanation from the deceased. Because we have already determined the trial court did not err in giving the provocation instruction, we will address appellant's second allegation only. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland requires a two-step analysis whereby appellant must show both that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability the result of the proceedings would have been different. Id. It is appellant's burden to prove ineffective assistance, and he must overcome the strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). Appellant complains that counsel should have requested an instruction on his right to arm himself and seek an explanation from the deceased. Years ago, if the State requested and received a provocation jury instruction, the defendant was entitled to a jury instruction explaining that he was permitted to arm himself and seek an explanation from the deceased without abridging his right to claim the justification of self-defense. See McGowan v. State, 188 S.W.3d 239, 241 (Tex. App.-Waco 2006, pet. ref'd). Since that time, however, the court of criminal appeals has ruled,. . . generally speaking, neither the defendant nor the State is entitled to a special jury instruction relating to a statutory offense or defense if that instruction (1) is not grounded in the Penal Code, (2) is covered by the general charge to the jury, and (3) focuses the jury's attention on a specific type of evidence that may support an element of an offense or defense. In such a case, the non-statutory instruction would constitute a prohibited comment on the weight of the evidence.Walters v. State, 247 S.W.3d 204, 212 (Tex. Crim. App. 2007). Accordingly, because the "right to arm" instruction is not found in the penal code, it should not be given. See McGowan, 188 S.W.3d at 242. Counsel could not have been ineffective for failing to request an impermissible jury instruction. Accordingly, we resolve appellant's third issue against him. We affirm the trial court's judgment.