Benny Cavazos Valverde v. State ( 2015 )

ACCEPTED
04-14-00338-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/1/2015 10:55:29 AM
KEITH HOTTLE
CLERK
No. 04-14-00338-CR
IN THE COURT OF APPEALS FOR THE
FILED IN
FOURTH JUDICIAL DISTRICT OF TEXAS, AT SAN ANTONIO
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
6/1/2015 10:55:29 AM
Benny Cavazos Valverde KEITH E. HOTTLE
Clerk
Appellant
v.
The State of Texas
Appellee
On Appeal in Case Number 2012CR3980, from the 290th District
Court of Bexar County, the Hon. Melisa Skinner, Judge Presiding
Brief on Appeal
Submitted by:
John G. Jasuta David A. Schulman
Attorney at Law Attorney at Law
State Bar Card No. 10592300 State Bar Card No. 17833400
lawyer1@johnjasuta.com zdrdavida@davidschulman.com
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
Attorneys for Benny Cavazos Valverde
Oral Argument Not Requested
Identity of Parties and Counsel
Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”),
the following is a complete list of the names and addresses of all parties to the
trial court’s final judgment and their counsel in the trial court, as well as
appellate counsel, so the members of the Court may at once determine whether
they are disqualified to serve or should recuse themselves from participating in
the decision of the case and so the Clerk of the Court may properly notify the
parties to the trial court’s final judgment or their counsel, if any, of the judgment
and all orders of the Court of Appeals.
Appellant
Benny Cavazos Valverde
TDCJ No. 1924413
Wallace Pack Unit
2400 Wallace Pack Road
Navasota, Texas 77868
Trial Counsel Appellate Counsel
Michael Sawyer David A. Schulman
SBN 17693800 SBN 17833400
Kirk Sherman John G. Jasuta
SBN 18243600 SBN 10592300
1111 Quintana Road 1801 East 51st St, Ste 365-474
San Antonio, Texas 78211 Austin, Texas 78723
State of Texas
Nicholas “Nico” Lahood
Criminal District Attorney
300 Dolorosa Street
San Antonio, Texas 78205
Trial Counsel Appellate Counsel
Wendy Wilson-Ortiz Laura E. Durbin
SBN 240003241 SBN 24068556
Alaina Altis
SBN 24006756
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Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Use of Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Point of Error Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Evidence to Sustain the Conviction is
Insufficient, Because the Evidence Supporting the
Jury's Rejection of Appellant's Self-Defense Claim is
Insufficient.
Facts Relevant to Point of Error. . . . . . . . . . . . . . . . . . . . . . . . 4
Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . 12
Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 13
i
Index of Authorities
Federal Cases:
Jackson v. Virginia, 443 U.S. 307 (1979).. . . . . . . . . . . . . 6-8
Texas Cases:
Allen v. State, 253 S.W.3d 260 (Tex.Cr.App. 2008). . . . . . . . . 6
Brooks v. State, 323 S.W.3d 893 (Tex.Cr.App. 2010). . . . . 6, 7
Clayton v. State, 235 S.W.3d 772 (Tex.Cr.App. 2007).. . . . . . 8
Hooper v. State, 214 S.W.3d 9 (Tex.Cr.App. 2007). . . . . . . 7, 8
Lancon v. State, 253 S.W.3d 699 (Tex.Cr.App. 2008).. . . . . 10
Miranda v. State, 350 S.W.3d 141
(Tex. App. - San Antonio 2011) . . . . . . . . . . . . . . . . . . . . 7
Morales v. State, 357 S.W.3d 1 (Tex.Cr.App. 2011).. . . . . . . . 6
Saxton v. State, 804 S.W.2d 910
(Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10
Zuliani v. State, 97 S.W.3d 589 (Tex.Cr.App. 2003). . . . . . 5, 6
ii
Use of Abbreviations
In this brief, Appellant’s references to the Amended Clerk’s
Record are “ACR” - e.g. (ACR 24), while the Reporter’s Record is
referred to as “RR” - e.g. (RR Vol. 3, PP. 122, 133).
Statement of the Case
The following is a brief general statement of the nature of the
cause or offense:
On May 23, 2012, a grand jury indicted Appellant with
one count of murder alleged to have occurred on
September 4, 2011 (ACR 24), and the State filed notice
of its intent to enhance punishment on February 19,
2013 (ACR 37-38). Appellant having elected to have the
trial court assess punishment if he were found guilty,
trial began on February 11, 2014 (RR Vol. 3, P. 1), and
the jury received the case on February 13, 2014 (RR Vol.
3, P. 1). After the jury announced it was unable to reach
a unanimous verdict (ACR 119), the trial court
sequestered the jury overnight (RR Vol. 5, P. 164). The
jury resumed deliberations and returned a guilty verdict
on Friday, February 14, 2014 (RR Vol. 6, P. 6).
Appellant pled true to the enhancement allegation (RR
Vol. 7, P. 9), and was sentenced to confinement for a
period of thirty [30] years, with no fine, judgment of
conviction being entered on March 20, 2014 (ACR 130).
The trial court certified Appellant retained the right to
appeal that same date (ACR 126).
iii
Appellant filed a Motion for New Trial on April 15, 2014
(ACR 132), and Notice of Appeal on April 17, 2014 (ACR
134). The trial court held a hearing on Appellant’s
motion for new trial on May 5, 2014, and summarily
overruled the motion (Vol. 9, P. 54).
Issues Presented
The following are the points upon which this appeal is
predicated:
The Evidence to Sustain the Conviction is
Insufficient, Because the Evidence Supporting the
Jury's Rejection of Appellant's Self-Defense Claim is
Insufficient.
iv
No. 04-14-00338-CR
IN THE COURT OF APPEALS FOR THE
FOURTH JUDICIAL DISTRICT OF TEXAS, AT SAN ANTONIO
Benny Cavazos Valverde, Appellant
v.
The State of Texas, Appellee
On Appeal in Case Number 2012CR3980, from the 290th District Court
of Bexar County, the Hon. Melisa Skinner, Judge Presiding
Brief on Appeal
TO THE HONORABLE FOURTH COURT OF APPEALS:
COMES NOW, Benny Cavazos Valverde, Appellant in the
above styled and numbered cause, by and through David A.
Schulman and John G. Jasuta, his undersigned attorneys of
record, and respectfully files this “Brief on Appeal,” and would
show the Court as follows:
Statement of Facts
Mike’s Tavern is a neighborhood pub on Culebra Road, in San
Antonio, which by the accounts of all the witnesses at trial, caters
1
to an older clientele (RR Vol. 3, PP. 122, 133; Vol. 4 PP. 34, 118,
242, 271). Appellant was a regular at the bar, whereas the
deceased, David Ramirez, was not (RR Vol. 3, P. 20).
The deceased entered the tavern around 11 p.m., and
immediately began exhibiting a particularly “ugly” and belligerent
attitude (RR Vol. 3, P. 115; Vol. 4, PP. 17, 39, 126, 134, 191).
When he arrived, the deceased was already intoxicated (RR Vol. 3,
PP. 139, 153), and post-mortem toxicology test revealed his blood
alcohol concentration was .127 and “still rising” (RR Vol. 4, PP. 93,
94).
Tavern personnel twice told the deceased they would escort
him out if he did not calm down (RR Vol. 3, PP. 164-165).
Nevertheless, he continued to make rude demands, but directed
his most vile and derisive remarks towards Appellant, an old
childhood acquaintance (RR Vol. 4, PP. 20, 41, 44, 132-138, 185,
203, 249). Appellant asked the deceased no less than three (3)
times to go drink elsewhere in the bar (RR Vol. 4, PP. 21, 23, 46,
138, 248], but he insisted on continuing to stand right next to
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Appellant, with only one man, Alvino Medellin, between them 9RR
Vol. 3, PP. 119, 179; Vol. 4, PP. 20, 127, 199).
The deceased’s behavior become more obnoxious, and,
ultimately, he peered around Medellin and threatened Appellant
by stating, “When I’m done with this beer, I have something for
you” (RR Vol. 4, PP. 156, 169, 259). The deceased then pointed
downward towards his waistband, where Appellant saw a distinct
bulge (RR Vol. 4, PP. 169, 259, 262). The deceased made this
verbal threat and gesture no less than three (3) times (RR Vol. 4,
PP. 260).
As the deceased emptied his beer, Appellant noticed that the
deceased “was going for that gun” (RR Vol. 4, PP. 263, 264). Acting
while in fear of serious bodily injury or death, Appellant grabbed
the deceased in something of a “bear hug” and reached for the
bulge (RR Vol. 4, PP. 264-266, 292). When he reached for the
bulge, Appellant discovered the deceased did, in fact, possess a
firearm and was trying to pull it out of his waist band (RR Vol. 4,
PP. 266, 293).
3
A brief struggle over the weapon ensued and the firearm
discharged, causing a contact wound a just beneath the
deceased’s left nipple (RR Vol. 4, P. 83-85), resulting in the
deceased’s heart being severely damaged (RR Vol. 4, P. 90). Images
taken at the scene depict complainant on the ground with an
empty or nearly empty beer bottle still clutched in his right hand
(RR Vol. 4, P. 41).
Point of Error Restated
The Evidence to Sustain the Conviction is Insufficient,
Because the Evidence Supporting the Jury’s Rejection of
Appellant’s Self-Defense Claim is Insufficient
Facts Relevant to Point of Error
There was no dispute but that when the deceased, David
Ramirez, entered Mike’s Tavern on the night in question, he was
very intoxicated and he using abusive language towards the staff
and other patrons. Similarly, it was not disputed that he was
extremely rude to Appellant, calling him several different
derogatory names in Spanish. There was never a dispute about
the shooting itself, as it was clear that there was a physical
4
struggle and a shooting, with Appellant emerging and the
deceased falling to the floor.
Summary of the Argument
The jury’s implied rejection of Appellant’s self-defense claim
was based on pure speculation, as it was completely unsupported
by the evidence.
Argument & Authorities
Upon raising a defense to prosecution, such as self-defense,
a defendant bears the burden of producing some evidence which
supports the claimed defense. Zuliani v. State, 97 S.W.3d 589,
594 (Tex.Cr.App. 2003); Saxton v. State, 804 S.W.2d 910, 913
(Tex.Cr.App. 1991). Once the defendant produces such evidence,
the burden shifts to the State, which bears the burden of
persuasion “to disprove the raised defense.” Zuliani, 97 S.W.3d at
594; Saxton, 804 S.W.2d at 913-914.
5
To prevail on a claim of self-defense, a defendant must prove
that:
Ø he would have been justified in using force against the
other person, and
Ù it was reasonable to believe that “deadly force [was]
immediately necessary [for protection] against the other’s
use or attempted use of unlawful deadly force.
Morales v. State, 357 S.W.3d 1, 7 (Tex.Cr.App. 2011). The
burden of persuasion does not require the production of evidence,
but it does require the State to persuade the jury beyond a
reasonable doubt that the defendant did not act in self-defense.
Allen v. State, 253 S.W.3d 260, 267 (Tex.Cr.App. 2008); Zuliani,
97 S.W.3d at 594. A jury verdict of guilt is an implicit finding
against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton,
804 S.W.2d at 914.
The legal sufficiency standard set out in Jackson v. Virginia,
443 U.S. 307 (1979), “is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is
6
required to prove beyond a reasonable doubt.” Brooks v. State,
323 S.W.3d 893, 895 (Tex.Cr.App. 2010). Because the State
carries the burden of persuasion to disprove self-defense beyond
a reasonable doubt, the appellate court reviews a challenge to the
sufficiency of the evidence supporting a jury’s rejection of a claim
of self-defense under the Jackson standard. Brooks, 323 S.W.3d
at 895; see also Miranda v. State, 350 S.W.3d 141, 147 (Tex.
App. - San Antonio 2011).
In evaluating sufficiency of the evidence under the Jackson
standard, an appellate court reviews all the evidence in the light
most favorable to the trial court’s judgment to determine whether
any rational jury could have found the essential elements of the
offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 912
(citing Jackson, 443 U.S. at 319). The reviewing court examines
legal sufficiency under the direction of the Brooks opinion while
giving deference to the responsibility of the jury “to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Hooper
7
v. State, 214 S.W.3d 9, 13 (Tex.Cr.App. 2007), citing Jackson,
443 U.S. at 318-319; see also Clayton v. State, 235 S.W.3d 772,
778 (Tex.Cr.App. 2007). Appellant submits that, even viewing all
of the evidence in the light most favorable to the jury's rejection of
self-defense, it is clear that a rational fact finder could not have
found beyond a reasonable doubt against Appellant on the
self-defense issue.
! While there is evidence that the deceased was demanding
and disrespectful to the tavern’s staff, there is no
evidence that the deceased was not demanding and
disrespectful to the tavern’s staff.
! While there is evidence that the deceased continually
insulted Appellant with derogatory remarks, there is no
evidence that the deceased did not direct derogatory
remarks towards Appellant, and there is no evidence that
Appellant directed derogatory remarks towards the
deceased.
! While there is evidence that the deceased threatened
Appellant, there is no evidence that the deceased did not
threaten Appellant, and there is no evidence that
Appellant threatened the deceased.
! While there is evidence that the deceased initiated the
altercation leading to his death, there is no evidence
indicating that he did not initiate the altercation and
there is no evidence that Appellant initiated it.
8
! While there was evidence that the deceased was carrying
the gun from which the fatal bullet was fired, there is no
evidence that the deceased was not carrying the gun and
there is no evidence that Appellant was carrying the gun.
The State’s theory was that it was Appellant, rather than the
deceased, who was angry that night, that Appellant carried a gun
into the tavern that night, and that Appellant “carried a gun on his
person in that bar on a regular basis” (RR Vol. 5, PP. 142-143).
The State’s claims, however, are without any evidentiary support.
There is no evidence that Appellant harbored or directed any
anger toward the deceased. Moreover, the State conceded that
“nobody” saw the defendant with a gun (RR Vol. 5, P. 143).
Additionally, the record is devoid of any evidence that Appellant
ever carried a gun into Mike’s Tavern. This was not a case of
competing evidence, some supportive of the self-defense claim and
some not. Rejection of the evidence supporting the self-defense
claim would leave nothing supporting a finding of guilt.
The only evidence before the jury demonstrated a series of
threats to initiate deadly violence by the deceased, and a self-
9
defensive reaction to the immediate threat by Appellant. This
evidence was never overcome by the State and, therefore, the
State’s factually unsupported argument cannot serve as the basis
of rejection of self defense.
Appellant acknowledges that the jury was free to accept or
reject the defensive issue. Lancon v. State, 253 S.W.3d 699, 707
(Tex.Cr.App. 2008); Saxton, 804 S.W.2d at 913-914. In this case,
however, there was no evidence which the jury could believe
instead of the evidence that Appellant acted in self-defense.
Taking away Appellant’s testimony, the evidence would only
show that one man, the deceased, was demanding of and
disrespectful to the tavern's staff, there is no evidence that the
deceased was not demanding and continually insulted another
man, Appellant, with derogatory remarks. The evidence showed
that the two men got into a physical struggle, a gun discharged
and the deceased was killed. Taking away Appellant’s testimony,
there would be nothing whatsoever showing who initiated the
struggle and who brought the gun into the tavern.
10
With or without Appellant’s testimony, it would be pure
conjecture to believe that Appellant brought the gun into the
tavern. The State produced no evidence supporting the allegations
in the indictment, other than there was a struggle and one man
ended up dead. The State produced no evidence of any aggressive
actions by Appellant and no evidence that Appellant brought the
gun which caused David Ramirez’s death into the tavern.
Conclusion
A rational fact finder could not have found beyond a
reasonable doubt against Appellant on the self-defense issue.
Consequently, the evidence to sustain the conviction is
insufficient, and Appellant is entitled to an acquittal.
Prayer
WHEREFORE, PREMISES CONSIDERED, Benny Cavazos
Valverde, Appellant in the above styled and numbered cause,
respectfully prays that this Honorable Court will review this brief,
and, upon submission of the case to the Court, will vacate the
11
Judgment of the court below and will remand this case to that
court for a new trial.
Respectfully Submitted:
____________________________________ ___________________________________
John G. Jasuta David A. Schulman
Attorney at Law Attorney at Law
State Bar Card No. 10592300 State Bar Card No. 17833400
lawyer1@johnjasuta.com zdrdavida@davidschulman.com
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
Attorneys for Benny Cavazos Valverde
Statement Regarding Oral Argument
Oral Argument is Not Requested.
12
Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 1,915 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
June 1, 2015, a true and correct copy of the above and foregoing
“Brief on Appeal” was transmitted via the eService function on the
State’s eFiling portal, to Laura Durbin (laura.durbin@bexar.org),
counsel of record for the State of Texas
______________________________________
David A. Schulman
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