Lamb County Electric Cooperative, Inc. v. Public Utility Commission of Texas ( 2008 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-07-00434-CR
    Rodolfo Orive, Appellant
    v.
    The State of Texas, Appellee
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
    NO. D-1-DC-06-204579, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
    MEMORANDUM OPINION
    A jury found appellant Rodolfo Orive guilty of murder and assessed his punishment
    at forty years’ imprisonment. See Tex. Penal Code Ann. § 19.02 (West 2003). In two points of
    error, appellant contends that his trial counsel was ineffective and that the district court erred by
    overruling his motion for new trial without a hearing. We overrule these points of error and affirm
    the conviction.
    On the evening in question, several people including appellant were gathered on the
    grounds of an Austin middle school practicing dances for an upcoming quinceanera. A car drove
    past the school, and hand signs were exchanged between the occupants of the car and appellant. The
    driver of the car, Vidal Lopez, told his companions that he had had problems with appellant in the
    past. Although his friends urged him to drive on, Lopez decided to stop and confront appellant.
    When they saw Lopez stop, appellant and two of his friends, Froylan Padilla and Victor Sarmiento,
    ran to appellant’s car, retrieved a pistol belonging to Sarmiento, and returned to the rehearsal scene.
    After stopping, Lopez and two of his companions approached the quinceanera group
    and announced that Lopez wanted to fight appellant. Appellant accepted the challenge. It was
    agreed that this would be a “clean fight” with no weapons. The combatants and a number of
    spectators moved to the rear parking lot of the school, and the fight commenced. Lopez soon got
    the upper hand, forcing appellant to his knees and placing him in what was described as a head lock
    or choke hold. Some witnesses testified that appellant’s face was turning purple and that he
    appeared to have trouble breathing. Another witness testified that appellant’s life did not appear to
    be in danger, although he was clearly losing the fight. Appellant himself testified, “I couldn’t talk,
    I couldn’t breathe, I couldn’t do anything. I was afraid for my life.”
    At this point, Padilla walked over to the two fighters, pointed Sarmiento’s pistol at
    Lopez, and ordered him to release appellant. Lopez complied with this order. Appellant then stood,
    took the pistol from Padilla, and fatally shot Lopez just below his right eye. Appellant testified that
    he shot Lopez because he was “afraid for [his] life.” According to appellant, Lopez told him that
    “if we would not shoot him, he was going to do it to us,” and put his hand behind his back.
    Appellant testified that he believed that if he did not shoot Lopez, Lopez would shoot him. Other
    witnesses testified that they did not hear Lopez say anything to appellant, and there is no evidence
    that Lopez or anyone with him was armed. One witness testified that appellant told Lopez “you are
    now f---ed” before shooting him.
    Appellant and Padilla left the scene in a black car and drove to a house a few blocks
    away, where they were seen speaking to a man and walking to the side of the house before running
    away on foot. Police later found several bullets under the air conditioning unit at the side of this
    house. Near midnight, appellant and Padilla went to the home of Luz Marie Gallego, the mother of
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    appellant’s former girlfriend. Gallego testified that appellant “looked bad” and that “[h]e couldn’t
    speak very well.” Appellant told Gallego that he had “killed a guy” and was thinking of going to
    Mexico. Appellant and Padilla were arrested later that night when a Jeep Cherokee in which they
    were occupants was stopped for speeding. Both men gave false names to the officers. Several
    packed suitcases were found in the Jeep.
    There is evidence that the fight and resulting shooting were gang-related. Appellant,
    Padilla, and Sarmiento were wearing blue clothing at the middle school. Austin police officers
    familiar with gang activity testified that blue is a color favored by a gang known as the South Side
    Crips. Lopez was wearing red shoes, suggesting that he was a member of a different gang. One of
    the persons who was in the car with Lopez testified that on the night following the shooting,
    appellant called him on the telephone and told him that “I shouldn’t say anything and that I should
    tell my friends that they should say nothing either because if somebody went down on his side they
    were also going to go down on our side.”
    Appellant’s bedroom was searched following his arrest. The officer who conducted
    the search testified that the room was decorated primarily in blue and recalled finding seven or
    eight blue bandannas; there was testimony that members of the Crips wore such bandannas to show
    their gang affiliation. In a notebook, appellant had written “vistazo Bloods,” which the officer
    translated as “looking for blood,” and “BK all day every day.” The officer testified that “BK” was
    shorthand for “blood killer,” a term commonly used by Crips. In his own testimony, appellant
    denied being a member of the Crips or any other gang.
    In his first point of error, appellant contends that his trial counsel was ineffective
    because he did not ask for a jury charge on the affirmative defense of duress. See Tex. Penal Code
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    Ann. § 8.05 (West 2003). To prevail on this claim, appellant must show that counsel’s failure to
    request a duress instruction was an error so serious that counsel was not functioning effectively, and
    that the error prejudiced appellant’s defense to such a degree that he was deprived of a fair trial.
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); Hernandez v. State, 
    988 S.W.2d 770
    , 771-72
    (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel’s conduct fell within
    the wide range of reasonable professional assistance. Jackson v. State, 
    877 S.W.2d 768
    , 771
    (Tex. Crim. App. 1994).
    A defendant is entitled to an instruction on every defensive issue raised by the
    evidence, regardless of the strength of that evidence. Hayes v. State, 
    728 S.W.2d 804
    , 807
    (Tex. Crim. App. 1987). Appellant urges that, in this case, the duress defense was raised by his
    testimony describing Lopez’s threat to shoot him and his belief that Lopez would kill him if he did
    not shoot Lopez.
    The duress defense applies when “the actor engaged in the proscribed conduct
    because he was compelled to do so by threat of imminent death or serious bodily injury to himself
    or another.” Tex. Penal Code Ann. § 8.05(a) (West 2003). “Imminent” means something that is
    impending, not pending; something on the point of happening, not about to happen. Schier v. State,
    
    60 S.W.3d 340
    , 343 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Harm is imminent when
    there is an emergency situation and it is immediately necessary to avoid that harm; when a split-
    second decision is required without time to consider the law. 
    Id. A person
    is compelled to act
    within the meaning of the duress defense only if confronted by force or threat of force that would
    render a person of reasonable firmness incapable of resisting the pressure. Tex. Penal Code
    Ann. § 8.05(c).
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    We believe that appellant’s trial attorney could have reasonably concluded that
    appellant’s testimony did not raise the duress defense. The only compulsion testified to by appellant
    was his fear that Lopez was going to kill him. Counsel could have reasonably concluded that the
    trial court’s instructions to the jury on the use of deadly force in self-defense and in defense of a third
    person more closely conformed to appellant’s testimony, and that these defenses were more
    favorable to appellant than the duress defense because the State had the burden of disproving them.
    See Tex. Penal Code Ann. § 9.32 (West Supp. 2008), § 9.33 (West 2003). Moreover, in light of the
    jury’s implicit finding beyond a reasonable doubt that appellant did not shoot Lopez in self-defense
    or in defense of Padilla, there is no likelihood that the jury would have found by a preponderance
    of the evidence that appellant shot Lopez under duress. Appellant has not shown that trial counsel’s
    performance was ineffective. Point of error one is overruled.
    Appellant’s second point of error is that the trial court erred by failing to conduct a
    hearing on appellant’s motion for new trial, which was overruled by operation of law. See Tex. R.
    App. P. 21.8. A defendant is entitled to a hearing on his motion for new trial if the motion and
    supporting affidavits raise matters not determinable from the record on which he would be entitled
    to relief. Wallace v. State, 
    106 S.W.3d 103
    , 108 (Tex. Crim. App. 2003). A hearing is not required
    when the matters raised in the motion for new trial are subject to being determined from the record.
    Reyes v. State, 
    849 S.W.2d 812
    , 816 (Tex. Crim. App. 1993). The denial of a hearing on a motion
    for new trial is reviewed for an abuse of discretion. 
    Wallace, 106 S.W.3d at 108
    .
    Appellant’s motion for new trial alleged that the jury’s verdict was contrary to the law
    and the evidence, and that appellant’s trial counsel was ineffective for having failed “to establish
    facts, and to submit a jury charge on duress or self defense.” The supporting affidavit, by the
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    attorney representing appellant on appeal, recited that appellate counsel had discussed the case with
    appellant and believed that appellant “could establish grounds to submit a jury charge on duress or
    self defense. Mr. Orive explained that at the time of the incident he was in fear of imminent death
    [or] severe bodily injury.”
    The claim that the verdict was contrary to the law and the evidence was not supported
    by the affidavit and was in any event determinable from the record. Contrary to the allegations in
    the motion and affidavit, appellant testified at trial that he was in fear of imminent death when he
    shot Lopez, and this self-defense claim was submitted to the jury (as was the claim that he shot
    Lopez in defense of Padilla). As we have explained, appellant’s testimony did not raise the issue of
    duress, and neither the motion nor the affidavit claim that there was any other evidence warranting
    a duress instruction that counsel could have presented. On this record, the trial court has not been
    shown to have abused its discretion by allowing the motion for new trial to be overruled without a
    hearing. Point of error two is overruled.
    The judgment of conviction is affirmed.
    ___________________________________________
    Jan P. Patterson, Justice
    Before Justices Patterson, Waldrop and Henson
    Affirmed
    Filed: December 31, 2008
    Do Not Publish
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