Julian Villegas v. State ( 2019 )

Opinion issued May 30, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00109-CR
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JULIAN VILLEGAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1531887
MEMORANDUM OPINION
A jury convicted Julian Villegas of murder after finding that Villegas
intentionally or knowingly caused the death of Anthony Johnson by shooting
Johnson with a firearm. See TEX. PENAL CODE § 19.02(b). The trial court assessed
Villegas’s punishment at 45 years’ confinement. In four issues, Villegas contends
the trial court made erroneous evidentiary rulings relevant to his self-defense claim
and erroneously instructed the jury on his defensive theory. We affirm.
Background
After a night of drinking and cocaine use at an after-hours club in Houston, a
group of men, some of whom had met for the first time at the club, decided to go to
a restaurant for food and additional drinks. Villegas, Anthony Johnson, and Rogelio
Martinez were in the group, and all the men appeared to be having a good time. No
one acted aggressively. When the group decided to leave the restaurant a few hours
later, Martinez waited inside for about four minutes to tip the waitress.
As Martinez exited the restaurant, he observed Villegas standing outside an
open passenger-side door of Johnson’s Chrysler, which Johnson had driven to the
restaurant. Johnson also was standing outside the Chrysler, leaning against
Martinez’s truck parked in the next space. Martinez explained that, in this posture,
Villegas and Johnson were facing one another and did not appear to be arguing.
Although he could not see Villegas’s hands, Martinez noted that Johnson’s hands
were empty. As Martinez reached the driver’s side door of his truck, he heard the
first of four shots ring out and saw Johnson fall to the ground.
Martinez panicked and locked the doors to his truck, as Villegas banged on
the rear driver-side window, indicating that he wanted Martinez to let him inside the
truck. Martinez denied Villegas entry into the truck but allowed another man, who
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was with the group and whom Martinez knew was not involved in the shooting, to
enter through the passenger door. Martinez drove off, observing Johnson still down
on the ground. Martinez felt compelled by a guilty conscience to return to the scene
of the shooting a short while later. He dialed 911 en route.1 When Martinez arrived
back at the restaurant, Villegas had fled and Johnson had stopped breathing.
Emergency responders were unable to revive Johnson, and Johnson died from his
gunshot wounds. A medical examiner later identified six gunshot wounds on
Johnson’s body, only two of which were from bullets that entered the front side of
Johnson’s body, and declared Johnson’s death a homicide.2
Law enforcement officers investigating Johnson’s death found a Crown Royal
bag, two bank cards, an identification card, and a small plastic bag containing
cocaine next to Johnson’s body. According to the testimony of one of the
investigating officers, the cocaine was packaged in the manner used by drug dealers
to make small sales of cocaine; however, no cash was found. Also not at the scene
of the shooting was the gun used or any cartridges, bullets, and casings expelled
from the gun.
1
Another restaurant patron who was not associated with Martinez’s and Villegas’s
group that night had also called 911.
2
In the opinion of the State’s expert, these injuries were consistent with Johnson
being shot from the front, turning away, and then being shot in the back as he fell to
the ground.
3
As the scene was being investigated, Houston Police Department Officer J.
Mejia was dispatched to a call for a hit-and-run car accident. Mejia was given a
description of the vehicle involved—a Chrysler. Not long after she was dispatched,
Mejia and her partner observed a Chrysler with body damage nearby. The driver of
the Chrysler attempted to avoid the officers by pulling into a commercial warehouse
area. Mejia and her partner followed the Chrysler into the warehouse area,
positioning their patrol vehicle so as to block the Chrysler’s exit. They then activated
their emergency lights and attempted to initiate a traffic stop. The driver, however,
refused to comply. When Mejia exited her patrol car and yelled for the driver to exit
the Chrysler, the driver ignored her command and nearly struck Mejia as he drove
the Chrysler past the patrol car and out of the area. Mejia and her partner pursued
but eventually lost track of the Chrysler.
Later that same night, Mejia was called to the scene of another car accident.
This time, the Chrysler she earlier pursued had struck a tree, and its driver had fled
on foot. Other responding officers had located the driver, later identified as Villegas,
at a home nearby and successfully given chase. Mejia observed that Villegas, at
times, appeared to be calm, but, at other times, was uncooperative and cursed, spit,
and yelled at the officers. She recalled Villegas yelling that he was “Tango Blast.”
And she perceived he was intoxicated. During his arrest, Villegas informed the
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arresting officers that he was in possession of a gun and had shot someone who
pointed a gun at him because he feared for his life.
The investigation at the scene revealed that the Chrysler Villegas crashed
belonged to Johnson. From the Chrysler’s front passenger seat, police recovered a
semi-automatic pistol, a magazine, and identification cards. A second gun, a gun
holster, a digital scale, plastic baggies, and marijuana were also found in the
Chrysler.
A grand jury indicted Villegas for murdering Johnson by shooting him with a
firearm. Villegas pleaded not guilty, and, at trial, he argued that he acted in self-
defense. Villegas’s argument centered on characterizing Johnson as the first
aggressor. Villegas testified at trial that he was in the group of men who had partied
together at the after-hours club and then went together for food and drinks at the
restaurant. Like Martinez, Villegas believed that everyone was getting along. He
indicated that he had enjoyed getting to know Johnson and used cocaine with
Johnson in the restaurant’s bathroom.
According to Villegas, he was smoking a cigarette in the restaurant’s parking
lot, near Martinez’s parked truck, when he saw Johnson begin to argue with another
man. Villegas believed the argument was drug related. When the other man walked
away from Johnson, Johnson became angry, opened the back passenger-side door of
his Chrysler, retrieved a gun from a Crown Royal bag located inside a backpack,
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loaded the gun, “pulled” the gun, and ordered Villegas to move toward him. Villegas
stated that, when he hesitated to comply with Johnson’s command, Johnson turned
the gun toward Martinez. Because he was within arm’s length of Johnson, Villegas
reached for the gun and attempted to wrestle it away from Johnson. Johnson was
shot in the ensuing struggle. By Villegas’s count, Johnson shot himself four times
and Villegas fired the final two shots as Johnson was falling to the ground. Villegas
admitted that he picked up the gun’s magazine and the bullet casings from the ground
before fleeing the scene in Johnson’s Chrysler.
The jury implicitly rejected Villegas’s self-defense claim, finding him guilty
of murder. Villegas appealed.
Admission of Evidence
Villegas’s first three issues concern the trial court’s handling of the evidence.
In his first and second issues, Villegas contends the trial court erred in (1) excluding
evidence relevant to his claim of self-defense, i.e., evidence that Johnson previously
was convicted of a weapons-related offense, and (2) admitting evidence from which
the jury could infer that he was affiliated with a gang, i.e., his statement to arresting
officers that he was “Tango Blast.” We address these complaints in turn.
A. Standard of review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); Jabari
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v. State, 273 S.W.3d 745, 751 (Tex. App.—Houston [1st Dist.] 2008, no pet.). An
abuse of discretion occurs only when the trial court’s decision was so clearly wrong
as to lie outside the zone within which reasonable persons might disagree. Walters,
247 S.W.3d at 217.
When considering non-constitutional error, even if evidence is erroneously
admitted or excluded, we must disregard the error unless it affects a substantial right.
See Potier v. State, 68 S.W.3d 657, 662–64 (Tex. Crim. App. 2002) (en banc)
(observing that erroneous exclusion of evidence “rarely rise[s] to the level of
denying the fundamental constitutional rights to present a meaningful defense,” and
explaining that constitutional rights are implicated only when exclusion of evidence
effectively prevents defendant from advancing defensive theory or excluded
evidence is critical); see also TEX. R. APP. P. 44.2(b) (“Any other [non-
constitutional] error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.”).
An error affects a defendant’s substantial rights only when the error had a
substantial and injurious effect or influence on the jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had only a slight influence on
the verdict, the error is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.
App. 1998). Important factors include the nature of the evidence supporting the
verdict, the character of the alleged error, and how the error might be considered in
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connection with other evidence in the case. Bagheri v. State, 119 S.W.3d 755, 763
(Tex. Crim. App. 2003); Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002). “More specifically, the reviewing court should consider whether the State
emphasized the error, whether the erroneously admitted evidence was cumulative,
and whether it was elicited from an expert.” Bagheri, 119 S.W.3d at 763. Evidence
of guilt can be a factor in a harm analysis. See Motilla, 78 S.W.3d at 356–57.
B. Error, if any, in the exclusion of testimony about Johnson’s prior
conviction was not preserved
Villegas claimed self-defense, arguing at trial that the shooting occurred when
he was forced to wrestle a firearm away from Johnson. In his first and second issues,
Villegas complains that the trial court prevented him from fully developing his self-
defense theory by refusing to allow cross-examination of Johnson’s wife about
Johnson’s conviction in 2000 for unlawfully carrying a weapon. According to
Villegas, evidence of Johnson’s prior weapons-related conviction was admissible
under Rules of Evidence 405(a) and 405(b) to show that Johnson was known for
carrying a weapon and, thus, was the aggressor. See TEX. R. EVID. 405(a) (governing
admission of character evidence), 405(b) (stating methods of proving character with
specific instances of conduct in cases in which a person’s character or trait is
essential element of claim, charge, or defense).
To preserve these evidentiary complaints for appellate review, Villegas was
required not only to make an offer of proof and obtain a ruling, which he did, but
8
also to state the grounds for the ruling he desired “with sufficient specificity to make
the trial court aware of the complaint.” See TEX. R. APP. P. 33.1(a)(1); Reyna v. State,
168 S.W.3d 173, 177 (Tex. Crim. App. 2005). “[I]t is not enough to tell the judge
that evidence is admissible. The proponent [of the evidence], if he is the losing party
on appeal, must have told the judge why the evidence was admissible.” Reyna, 168
S.W.3d at 177; see Martinez v. State, 91 S.W.3d 331, 335–36 (Tex. Crim. App.
2002) (recognizing that “the party complaining on appeal . . . about a trial court’s
admission, exclusion, or suppression of evidence must, at the earliest opportunity,
have done everything necessary to bring to the judge’s attention the evidence rule or
statute in question and its precise and proper application to the evidence in question”)
(internal quotations omitted).
When asked directly by the trial court why he sought to elicit testimony from
Johnson’s wife about Johnson’s prior conviction, Villegas responded:
[T]he door was opened by the State asking her questions about had she
ever seen him [Johnson] with any weapons . . . and she said no. . . .
Leaving the impression with the jury that Mr. Johnson never had any
firearms, where he has been convicted, and I think I should be able to
ask her hadn’t she heard that he’s been convicted . . . of unlawfully
carrying a weapon.
In other words, he argued that the evidence of Johnson’s prior conviction was
admissible to correct a false impression created by the State in its direct examination
of Johnson’s wife. He did not offer either Rule 405(a) or Rule 405(b) as a basis for
the admission of the evidence. Because Villegas did not urge that the evidence was
9
admissible under Rule 405(a) or 405(b), he has waived his complaint about the
admissibility of the excluded evidence under those rules. See Johnson v. State, 803
S.W.2d 272, 292–93 (Tex. Crim. App. 1990), overruled on other grounds, Heitman
v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); see also Clark v. State, 881
S.W.2d 682, 694 (Tex. Crim. App. 1994) (rejecting appellant’s argument for
admission of evidence on appeal because he “did not clearly articulate” the basis for
admission in trial court and, thus, did not afford trial court “the opportunity to rule
upon [his] appellate rationale”).
Even had Villegas preserved his complaints for our review, the record does
not show harm and, as a result, any error in the exclusion of testimony about
Johnson’s prior conviction would not be reversible. See TEX. R. APP. P. 44.2(b). This
Court will not overturn a criminal conviction for non-constitutional evidentiary error
if, after examining the record as a whole, the Court has fair assurance that the error
did not influence the jury, or had but a slight effect. See Johnson, 967 S.W.2d at 417.
We have that assurance in this case because the State conceded in closing argument
that the gun used to shoot Johnson likely belonged to Johnson, not Villegas.
Specifically, the State told the jury: “Although the gun wasn’t registered to anybody,
it doesn’t make a lot of sense that [Villegas] brought it there. . . . It is more likely,
right, that the gun was in [Johnson’s] vehicle[.]” This concession eliminated the need
for Villegas to show that Johnson had a reputation for carrying a gun, and thereby
10
rendered any adverse effect from the jury’s ignorance of Johnson’s prior conviction
only slight.
We overrule Villegas’s first and second issues.
C. Error, if any, in the admission of extraneous conduct was harmless
In his third issue, Villegas argues that the trial court erred in overruling his
objection to Officer Mejia’s testimony that she recalled Villegas yelling that he was
“Tango Blast.” According to Villegas, this testimony suggested to the jury that he
was affiliated with a gang and, thus, was inadmissible extraneous-offense evidence
that served only to inflame the jury. Assuming without deciding that Officer Mejia’s
testimony referencing “Tango Blast” was inadmissible, we hold that its admission
was harmless because it did not affect Villegas’s substantial rights. See Robinson,
236 S.W.3d at 269.
The record does not explain the meaning of “Tango Blast.” Although courts
in other cases have been able to look to testimony defining the term as a gang with
origins in the prison system, the evidence presented to the jury did not include any
such testimony. See, e.g., Lara v. State, No. 05-17-00467-CR, 2018 WL 3434547,
at *7 (Tex. App.—Dallas July 17, 2018, pet. ref’d) (mem. op., not designated for
publication) (summarizing detective’s testimony explaining that “Tango Blast” is
name of “criminal street gang” that “began as a prison gang”); Gonzalez v. State,
No. 01-16-00490-CR, 2017 WL 3429428, at *2 (Tex. App.—Houston [1st Dist.]
11
Aug. 10, 2017, no pet.) (summarizing peace officer’s testimony that “Tango Blast”
is gang known for “thefts, assaults, robberies, home invasions, burglaries, and
murders”). As the State points out, Officer Mejia was the only witness to reference
“Tango Blast” at trial. No testimony or other evidence provided the jury with any
context for identifying “Tango Blast” as a gang or suggested to the jury that Villegas
had a gang affiliation. And the State did not emphasize Villegas’s statements
identifying himself as “Tango Blast” at any point during the trial.
On this record and with due consideration for the evidence of Villegas’s
guilt—including Martinez’s eyewitness testimony about the shooting, Villegas’s
own testimony acknowledging his role in Johnson’s death, the forensic evidence
contradicting Villegas’s version of events, and the forensic evidence indicating that
two bullets recovered from Johnson’s body were fired from a handgun like the one
recovered from the Chrysler after Villegas’s arrest—Officer Mejia’s isolated
reference to “Tango Blast” could have had only a slight influence on the jury’s
verdict implicitly rejecting his claim of self-defense. Accordingly, we conclude that
any error in the admission of Officer Mejia’s testimony is harmless, and we overrule
Villegas’s third issue. See TEX. R. APP. P. 44.1
Jury Instruction
In his fourth issue, Villegas argues that the trial court should have submitted
a jury instruction under Section 9.32(b)(1)(C) of the Penal Code, which establishes
12
a presumption of reasonableness for an actor’s belief that the use of deadly force is
immediately necessary. TEX. PENAL CODE § 9.32(b)(1)(C).
A. Standard of review
The trial court must give the jury a written charge that sets forth the law
applicable to the case. TEX. CODE CRIM. PROC. art. 36.14; Oursbourn v. State, 259
S.W.3d 159, 179 (Tex. Crim. App. 2008). In considering a party’s contention that
the trial court erred in its charge to the jury, we must determine whether the charge
was erroneous and, if so, whether the error was harmful. Celis v. State, 416 S.W.3d
419, 423 (Tex. Crim. App. 2013). “Not all jury-charge errors require reversal.”
Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (discussing standard
for showing harm set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1985) (op. on reh’g)). When, as here, a charge complaint has been preserved, the
standard for evaluating harm is whether “the error appearing from the record was
calculated to injure the rights of the defendant,” which the Texas Court of Criminal
Appeals has construed as “some harm.” Celis, 416 S.W.3d at 423 n.3. This analysis
requires a reviewing court to consider: (1) the jury charge as a whole, (2) the
arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors
present in the record. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013).
13
B. Error, if any, in the omission of a jury instruction on the presumption of
reasonableness was harmless
Section 9.32(b)(1)(C) of the Penal Code provides that an actor’s belief that
deadly force was immediately necessary is presumed to be reasonable if he “knew
or had reason to believe that the person against whom the deadly force was used . . .
was committing or attempting to commit” aggravated kidnapping, murder, sexual
assault, aggravated sexual assault, robbery, or aggravated robbery. TEX. PENAL
CODE § 9.32(b)(1)(C). If sufficient evidence exists of the facts giving rise to a
statutory presumption favoring the defendant, “the existence of the presumed fact
must be submitted to the jury unless the court is satisfied that the evidence as a whole
clearly precludes a finding beyond a reasonable doubt of the presumed fact.” Id.
§ 2.05(b)(1); see Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011).
Even if the omission of a jury instruction on the presumption of
reasonableness was error, we can only reverse the trial court’s judgment on this basis
if Villegas suffered “some harm” from the error. Considering the charge in its
entirety, we note that the trial court properly instructed the jury that Villegas was
justified in using deadly force if he reasonably believed that deadly force was
immediately necessary to protect himself or a third person against Johnson’s use or
attempted use of deadly force. The charge further instructed the jury:
When a person, or third person, is attacked with unlawful deadly force,
or he reasonably believes he, or the third person, is under attack or
attempted attack with unlawful deadly force, and there is created in the
14
mind of such person a reasonable expectation or fear of death or serious
bodily injury to himself or the third person, then the law excuses or
justifies such person in resorting to deadly force by any means at his
command to the degree that he reasonably believes immediately
necessary, viewed from his standpoint at the time, to protect himself or
the third person from such attack or attempted attack.
The charge did not, however, instruct the jury that in certain circumstances it
must presume that Villegas had a reasonable belief that deadly force was
immediately necessary. This factor generally weighs in favor of actual harm. See
Villareal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (agreeing with
intermediate appellate court’s conclusion that jury charge weighed in favor of harm
because “[n]othing in the charge alerted the jury that it must presume [appellant] had
a reasonable belief that the use of deadly force was necessary”); see also Haye v.
State, No. 01-15-01057-CR, 2017 WL 444462, at *5 (Tex. App.—Houston [1st
Dist.] Feb. 2, 2017, pet. ref’d) (mem. op., not designated for publication). If the jury
had been provided with a presumption-of-reasonableness instruction, however, the
jury reasonably could have concluded that the presumption did not apply given
Martinez’s testimony that Johnson’s hands were empty when the shooting started,
which contradicted Villegas’s testimony about Johnson as the first aggressor and the
two men’s struggle over the gun. Thus, although this factor may weigh more heavily
in favor of harm in another case, its weight here is minimal. See Villareal, 453
S.W.3d at 433 (affording incomplete charge less weight because complete charge
would have also permitted the jury to conclude that presumption was inapplicable
15
based on facts of case); Haye, 2017 WL 444462, at *5 (concluding that failure to
give presumption-of-reasonableness instruction did not weigh heavily in favor of
finding harmful error because jury could have concluded presumption did not apply).
With respect to the arguments of counsel, we note that both sides addressed
Villegas’s self-defense claim in closing argument. The State argued that Villegas’s
self-defense claim lacked merit because the physical evidence did not support his
version of events and that Villegas’s testimony on the issue was not credible
(especially considering that he may have been intoxicated when the shooting
occurred given the drinking and drug use that preceded Johnson’s death). Although
the State generally contested Villegas’s self-defense claim, it did not directly
challenge the reasonableness of his professed belief that Johnson posed a threat to
Villegas or others if the events had transpired as Villegas testified. See Villareal, 453
S.W.3d at 441–42 (holding that counsel’s arguments did not weigh in favor of
finding harm because they did not center on reasonableness of defendant’s belief
that use of deadly force was immediately necessary). Instead, the State’s case
focused on whether Johnson was the first aggressor.
Defense counsel urged the jury to believe Villegas’s testimony about his
struggle to wrest the gun away from Johnson. He told the jurors that anyone who
saw “somebody whip out a gun” would be concerned. He argued that a person,
including Villegas here, would not be unreasonable to act to prevent harm to himself
16
or others. Defense counsel also argued that the physical evidence supported
Villegas’s account of the shooting, including the evidence that police recovered the
Crown Royal bag from which Villegas testified Johnson pulled the gun. According
to defense counsel, “little bitty things like that” added up to show the credibility of
Villegas’s testimony. Considering that the arguments of counsel included discussion
of Villegas’s decision to use deadly force, we conclude this factor weighs in favor
of finding actual harm.
But any harm that can be gleaned from the arguments of counsel is
outweighed by the strength of the evidence against Villegas. See Johnson v. State,
981 S.W.2d 759, 763 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (observing
that “state of the evidence . . . is the most important factor in the analysis”). “When
the evidence is overwhelming, it is obviously less likely the jury was influenced by
an erroneous jury instruction than by the weight of the probative evidence itself.” Id.
Our review of the entirety of the evidence leads us to conclude that the jury
reasonably could have rejected Villegas’s claim of self-defense. Martinez’s
eyewitness account supported a conclusion that Villegas, not Johnson, reached for
the gun inside the Chrysler. According to Martinez, Johnson was leaning against
Martinez’s truck and was not holding a weapon. The physical evidence likewise
undermined Villegas’s self-defense claim, including the number of shots to
Johnson’s back. And Villegas acknowledged the shooting, as well as the drinking
17
and drug use that preceded it and his attempts to dispose of any evidence against him
and to evade arrest.
After considering the relevant factors, we conclude that Villegas did not suffer
any actual, as opposed to theoretical, harm as a result of any alleged error in the
omission of a presumption-of-reasonableness jury instruction. See Reeves, 420
S.W.3d at 816 (citing Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App.
2008)). Accordingly, we overrule Villegas’s fourth issue.
Conclusion
Having overruled all Villegas’s issues, we affirm the trial court’s judgment of
conviction.
Sarah Beth Landau
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).
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