Edward Romero v. State ( 2015 )

ACCEPTED
04-14-00500-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/10/2015 5:23:56 PM
KEITH HOTTLE
CLERK
No. 04-14-00500-CR
In the
Fourth Court of Appeals District of Texas
San Antonio, Texas
EDWARD ROMERO,
Appellant
v.
STATE OF TEXAS,
Appellee
Trial Cause No. 2013-CR-3128
On appeal from the 186th District Judicial District Court
Bexar County, Texas
APPELLEE STATE’S BRIEF
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
NATHAN E. MOREY
Assistant Criminal District Attorney
State Bar No. 24074756
CRIMINAL DISTRICT ATTORNEY’S OFFICE
Oral Argument Waived Bexar County, Texas
101 West Nueva, Suite 720
San Antonio, Texas 78205
Voice: (210) 335-2414
Fax: (210) 335-2436
Email: nathan.morey@bexar.org
Attorneys for the State of Texas
ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
IDENTITY OF THE PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State
supplements the following individual(s) to the list of parties and counsel:
Nathan E. Morey
Assistant Criminal District Attorney and
Counsel for the State on Appeal
State Bar No. 24074756
101 West Nueva, Suite 720
San Antonio, Texas 78205
Voice: (210) 335-2414
Fax: (210) 335-2436
Email: nathan.morey@bexar.org
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
TABLE OF CONTENTS
Identity of the Parties and Counsel ........................................................................... ii
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................. iv
Statement of the Case.................................................................................................1
Issue Presented ...........................................................................................................2
Sole Issue: Was the jury’s verdict rejecting self-defense supported by
sufficient evidence? ..........................................................................2
Statement of Facts ......................................................................................................3
Summary of the Argument.........................................................................................4
Argument....................................................................................................................5
Standard of Review............................................................................................5
Applicable Law: Aggravated Assault and Self-Defense ...................................6
Application of the Law to the Present Record...................................................6
The trial court correctly instructed the jury on self-defense. ............................7
Prayer .........................................................................................................................9
Certificate of Service ...............................................................................................10
Certificate of Compliance ........................................................................................10
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
INDEX OF AUTHORITIES
Statutes:
TEX. CODE CRIM. PROC. art. 44.02 .........................................................................1
TEX. PENAL CODE § 2.03(d) ..................................................................................8
TEX. PENAL CODE § 9.31.......................................................................................8
TEX. PENAL CODE § 9.31(a) ..............................................................................6, 8
TEX. PENAL CODE § 9.31(b)(1) .............................................................................8
TEX. PENAL CODE § 9.31(b)(4) .............................................................................8
TEX. PENAL CODE § 9.32(a) ..................................................................................8
TEX. PENAL CODE § 12.42(d) .................................................................................1
TEX. PENAL CODE § 22.01(a)(1) ............................................................................6
TEX. PENAL CODE § 22.02(a)(1) ............................................................................6
TEX. PENAL CODE § 22.02(a)(2) ........................................................................1, 6
Cases:
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) ..........................................................5
Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007) ..........................................................5
Hayes v. State,
728 S.W.2d 804 (Tex. Crim. App. 1987) ..........................................................6
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) ..............................................................5
Jackson v. Virginia,
443 U.S. 307 (1979)...........................................................................................5
Miranda v. State,
350 S.W.3d 141 (Tex. App.—San Antonio 2011, no pet.) ...............................7
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
Saxton v. State,
804 S.W.2d 910 (Tex. Crim. App. 1991) ..........................................................6
Rules:
TEX. R. APP. P. 9.4(i)(2)(B) ................................................................................10
TEX. R. APP. P. 9.4(i)(3) ......................................................................................10
TEX. R. APP. P. 9.5(b)..........................................................................................10
TEX. R. APP. P. 26.3 ...............................................................................................1
TEX. R. APP. P. 38.2(a)(1)(A) ............................................................................... ii
TEX. R. APP. P. 38.2(a)(1)(B) .................................................................................3
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
TO THE HONORABLE FOURTH COURT OF APPEALS:
Now comes the State of Texas, by and through Nicholas “Nico” LaHood,
Criminal District Attorney of Bexar County, Texas, and the undersigned assistant
criminal district attorney, with the filing of the following brief.
STATEMENT OF THE CASE
Edward Romero, hereinafter referred to as Appellant, was convicted by a
jury for assaulting Melissa Romero with a deadly weapon (C.R. at 7; VI R.R. at
58). See TEX. PENAL CODE § 22.02(a)(2). After finding that Appellant was a
habitual felon, the trial court pronounced a life sentence on June 2, 2014 (I
Punishment R.R. at 1, 75) and entered a judgment of conviction with a certification
of the right to appeal (C.R. at 87–88, 89). See id. at § 12.42(d). Appellant filed a
notice of appeal on July 17. 2014 and this Court subsequently granted a motion
extending the filing deadline. See TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP.
P. 26.3.
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
ISSUE PRESENTED
Sole Issue: Was the jury’s verdict rejecting self-defense supported by
sufficient evidence?
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
STATEMENT OF FACTS
Supplemental citations to the record are included under each point of error
below. See TEX. R. APP. P. 38.2(a)(1)(B).
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
SUMMARY OF THE ARGUMENT
Sole Point of Error: The jury erred in not finding Appellant “not guilty” based on
the Appellant’s assertion of self-defense.
State’s Response: The only evidence supporting Appellant’s self-defense claim
is thin, circumstantial evidence. On the other hand, there is
ample direct and circumstantial evidence that both supports
Appellant’s guilt and defeats his self-defense claim. The
jury rationally rejected the former and accepted the latter.
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
ARGUMENT
Standard of Review
The prosecution must present sufficient evidence to enable a “rational trier
of fact” to find, beyond a reasonable doubt, that a defendant is guilty of each
element of the charged offense. Jackson v. Virginia, 443 U.S. 307, 324 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). A reviewing court
should “defer to the jury’s credibility and weight determinations because the jury is
the sole judge of the witnesses’ credibility and the weight to be given their
testimony.” Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (citing
Jackson, 443 U.S. at 319). When the record reflects conflicts in the evidence, a
reviewing court should “presume that the factfinder resolved the conflicts in favor
of the prosecution.” Clayton, 235 S.W.3d at 778 (citing Jackson, 443 U.S. at 326).
Circumstantial evidence should be reviewed in the same manner as direct evidence
and circumstantial evidence alone can be sufficient to support a verdict of guilt.
Clayton, 235 S.W.3d at 778 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007)).
When reviewing a jury’s rejection of a defendant’s claim of self-defense, a
court must “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
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
found against [the defendant] on the self-defense issue beyond a reasonable
doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
Applicable Law: Aggravated Assault and Self-Defense
A person commits aggravated assault by either intentionally, knowingly or
recklessly causing serious bodily injury; or by intentionally, knowingly or
recklessly causing bodily injury while using or exhibiting a deadly weapon. See
TEX. PENAL CODE §§ 22.01(a)(1), 22.02(a)(1) & 22.02(a)(2). A person is justified
in using force against another “when and to the degree the actor reasonable
believes the force is immediately necessary to protect the actor against the other’s
use or attempted use of unlawful force. Id. at § 9.31(a). The reasonableness of the
actor’s belief and appropriateness of the level of force used are questions of fact to
be resolved by the jury. Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App.
1987).
Application of the Law to the Present Record
In this case, the jury only heard one side of the story. Melissa testified that
Appellant entered her apartment through the window and attacked her with a knife
(IV R.R. at 85–94, 182–83). The doctor who treated her that night testified that
she received wounds to her neck and arm that put her life in jeopardy (V R.R. at
170–76). The only evidence suggesting Appellant acted in self-defense was
medical records indicating that Appellant had some cuts on his hands; however, the
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
records characterized those cuts as “superficial” and “self-inflicted” (V R.R. at
184, 186). During the jury charge conference, the trial court responded to
Appellant’s request for a self-defense instruction: “All right. I’m going to let it in.
But the only reason I’m going to put it in there is because it’s so easy for it to be an
issue on appeal later on.” (VI R.R. at 7).
Appellant’s argument is largely premised on the fact that Melissa was
impeached with her prior statements and the circumstances of her relationship with
Appellant. However, the legal sufficiency standard of review does not allow this
Court to second guess the jury’s determination of whether a particular witness was
telling the truth. Looking at the record in the light most favorable to the verdict,
this Court must find that the conviction is supported by legally sufficient evidence.
Miranda v. State, 350 S.W.3d 141, 149 (Tex. App.—San Antonio 2011, no pet.)
(concluding that jury’s rejection of self-defense was supported by legally sufficient
evidence and declining to reconsider witness credibility).
The trial court correctly instructed the jury on self-defense.
Though he does not raise a separate point of error, Appellant complains that
the trial court incorrectly instructed the jury on the law of self-defense.
Appellant’s hand-written notations in his appendix suggest that the trial court erred
by phrasing the second part of the application portion of the self-defense
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
instruction in the disjunctive instead of the conjunctive (C.R. at 70–71). Appellant
does not cite to any authority to support his position.
Once a defensive issue is raised by the evidence, “the court shall charge that
a reasonable doubt on the issue requires that the defendant be acquitted.” TEX.
PENAL CODE § 2.03(d). However, the law of self-defense is a dense statute filled
with many conditions and presumptions. Id. at § 9.31.
Based on the trial court’s charge, if the jury found beyond a reasonable
doubt that Appellant’s “use of deadly force was in response to verbal provocation
alone” (C.R. at 71), then they would have been required to find Appellant guilty.
This is consistent with the law of self-defense. See id. at § 9.31(b)(1). Likewise, if
the jury found beyond a reasonable doubt that Appellant “did not reasonably
believe that the use of force and degree of force used were immediately necessary
to protect himself against Melissa Romero’s use or attempted use of deadly force”
(C.R. at 70–71), then they would have been required to find Appellant guilty. This
is consistent with the law of self-defense. See id. at §§ 9.31(a) & 9.32(a). Still, if
the jury found beyond a reasonable doubt that Appellant provoked Melissa and did
not abandon the encounter (C.R. at 71), then they would have been required to find
Appellant guilty. This is consistent with the law of self-defense. See id. at §
9.31(b)(4). Because a single finding beyond a reasonable doubt on each one of
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
these issues was sufficient to support a verdict in favor of the State, the trial court
did not err by phrasing these issues in the disjunctive.
The trial court correctly charged the jury and the evidence enabled them to
rationally convict Appellant of aggravated assault. Accordingly, Appellant’s sole
point of error should be overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee State prays the Court
overrule Appellant’s point of error and affirm the trial court’s judgment of
conviction and sentence.
Respectfully submitted,
NICHOLAS “NICO” LAHOOD
Criminal District Attorney
Bexar County, Texas
/s/ Nathan E. Morey
NATHAN E. MOREY
Assistant Criminal District Attorney
State Bar No. 24074756
101 West Nueva Street, Suite 720
San Antonio, Texas 78205
Voice: (210) 335-2414
Fax: (210) 335-2436
Email: nathan.morey@bexar.org
Attorneys for the State of Texas
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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief
CERTIFICATE OF SERVICE
I, Nathan E. Morey, hereby certify that, pursuant to Texas Rule of Appellate
Procedure 9.5(b), a true and correct copy of the above and forgoing brief was
mailed to William Baskette on Wednesday, March 11, 2015.
CERTIFICATE OF COMPLIANCE
I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate
Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above response contains 1,918 words
according to the “word count” feature of Microsoft Office.
/s/ Nathan E. Morey
NATHAN E. MOREY
Assistant Criminal District Attorney
State Bar No. 24074756
101 West Nueva Street, Suite 720
San Antonio, Texas 78205
Voice: (210) 335-2414
Fax: (210) 335-2436
Email: nathan.morey@bexar.org
Attorney for the State of Texas
cc: WILLIAM L. BASKETT
Attorney at Law
State Bar No. 01871400
110 West Nueva Street
San Antonio, Texas 78204
Voice: (210) 930-1200
Fax: (210) 282-2917
Email: …
Attorney for Appellant
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