Guerra, Pedro v. State ( 2000 )

NUMBER 13-99-036-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

PEDRO GUERRA

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 370th District Court of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Dorsey

A jury convicted appellant, Pedro Guerra, of murder, attempted murder, and aggravated assault and assessed his punishment at sixty years in prison for all three offenses. By five points of error appellant complains of charge error, improper jury argument, improper admission of evidence, and he challenges the sufficiency of the evidence. We affirm.

I. Facts

About June 29, 1996 Manuel Vasquez and appellant drove past Juan Cabrera's house in Elsa, Texas. Juan was in front of his house, and appellant told him that he "was going to go down." Two days later Vasquez and appellant again drove past Juan's house. Juan was in front of the house, and appellant pointed a gun out the window and stated, "Damn bastard, you're going down." Later that day Juan was driving Rafael Rodriguez, Efrain Garza, Randy Rodriguez, and Arthur Salazar to his home. As they drove near Vasquez' house rocks were thrown at Juan's car. Everybody got out of Juan's car and approached the house. Appellant, Vasquez, and some other people were in front of the house. An argument ensued, and the people in Juan's group began throwing sticks and pipes at appellant and Vasquez. Vasquez went into his house and returned with a .22 rifle. Appellant took the rifle and shot Efrain three times. When Juan tried to help Efrain, appellant shot Juan twice, killing him. Appellant also shot Randy one time.

Appellant did not testify during the guilt/innocence phase and did not call any witnesses to testify for him during guilt/innocence.

II. Charge Error

By point one appellant asserts that the trial court erred by including a "Provoking the Difficulty" instruction in each of the three charges on guilt/innocence. He argues that there was no evidence to support the inclusion of the instruction.

The doctrine of provocation acts as a limitation or total bar on an accused's right to self-defense. Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998). The rule states that if the accused provoked another to make an attack on him, so that the accused would have a pretext for killing⁽¹⁾ the other under the guise of self-defense, the accused forfeits his right of self-defense. Id.

A charge on provocation is required when there is sufficient evidence (1) that the accused did some act or used some words which provoked the attack on him, (2) that the act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the accused would have a pretext for inflicting harm upon the other. Id., at 513. An instruction on provocation should only be given when there is evidence from which a rational jury could find every element of provocation beyond a reasonable doubt, viewing the evidence in the light most favorable to giving the instruction.. Id., at 514. The first element--that the accused did some act or used some words which provoked the attack on him--triggers the inquiry into whether the issue of provocation may be present in the case. Id. If the evidence allows an inference beyond a reasonable doubt that the victim attacked the accused in response to something that the accused did or said, this will be sufficient to allow the jury to find the first issue in the affirmative. Id., at 514, 516. This finding can be made through inference relying on circumstantial evidence. Id., at 515.

The evidence showed that prior to the shooting appellant had told Juan that he was going to go down, called him a bad name, and pointed a gun at him. Shortly afterwards rocks were thrown at Juan's car as he drove passed Vasquez's home. Although no one actually saw appellant throw the rocks he was in front of the house where the rocks came from. The jury was aware that appellant had insulted Juan and had threatened him just hours before the rocks were thrown. Thus the jury could reasonably conclude that appellant was involved in throwing the rocks. When a confrontation arose between Juan and his friends and appellant and his friends, appellant killed Juan and wounded Randy and Efrain. We conclude that the evidence allows an inference beyond a reasonable doubt that the victims attacked appellant in response to something that appellant said or did. Thus the evidence is sufficient to allow the jury to find the first element in the affirmative.

The second element--that the accused's acts or words were reasonably calculated to provoke the attack--ensures that an accused will not lose the right of self-defense over acts or words which cause an unwarranted attack. Id., at 517. An act is reasonably calculated to cause an attack if it is reasonably capable of causing an attack, or if it has a reasonable tendency to cause an attack. Id. This can be determined from circumstantial evidence. Id.

Calling someone a bad name, threatening that person, and throwing rocks at the person's vehicle are acts which are reasonably capable of causing an attack, or have a reasonable tendency to cause an attack. See e.g., Bateson v. State, 80 S.W. 88, 93 (Tex. Crim. App. 1904) (jury's belief that accused called deceased a son of a bitch would suffice to provoke assault by deceased) (cited with approval in Smith, 965 S.W.2d at 517). Thus the evidence is sufficient to allow the jury to find the second element in the affirmative.

The third element requires that the act was done, or the words were used, for the purpose and with the intent that the accused would have a pretext for killing the victim. Even though a person does an act which provokes an attack by another, if he had no intent that the act would have such an effect as part of a larger plan of doing the victim harm, he does not lose his right of self-defense. Id., at 518. Intent is a matter of fact to be determined from all of the circumstances. Id. Some provoking acts may be of such a character that they carry the inference of intent with them. Id.

The evidence of appellant's prior threats toward Juan, along with the rock throwing, is sufficient for a rational jury to properly conclude that appellant had the requisite intent and that he was trying to provoke or inspire Juan and his friends to attack him so that he would have a pretext for killing Juan. Viewing the evidence in the light most favorable to giving the instructions we hold that the trial court did not err by giving the provocation instructions because a rational jury could have found every element of provocation beyond a reasonable doubt.⁽²⁾ We overrule point one.

III. Jury Argument

By point two appellant complains of six instances where the State made improper remarks during closing argument at the guilt/innocence phase. A proper jury argument must fall within four general areas: summation of the evidence; reasonable deduction from the evidence, answer to opposing counsel's argument, and a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). Error exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. Id.

In the first instance the State argued that appellant intended to kill the victims, or knew the result of what his actions would be by "hitting them where he hit them." Appellant objected that the State was asking the jury to convict on a theory not set forth in the indictment. The court overruled the objection. The State was making a reasonable deduction from the evidence, arguing that based upon where appellant had shot the victims, he was trying to kill them or injure them.

In the second and third instances the State told the jury that it had to prove its case beyond a reasonable doubt, but that its burden at appellant's juvenile certification hearing⁽³⁾ was probable cause. Appellant objected that the State was shifting the burden of proof, and the trial court sustained the objection. The State may not misstate or shift the burden of proof. See Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990). However this argument was not so extreme or manifestly improper that it amounted to reversible error. See Guidry, 9 S.W.3d at 154.

In the fourth instance the State argued that the shooting was planned. Appellant objected on the basis that there was no evidence that the shooting was planned. The court overruled the objection. Although there is no direct evidence that appellant had planned the shooting, there was evidence that appellant had threatened Juan and that when rocks were thrown at Juan's car this gave appellant the opportunity to shoot him and his friends. A reasonable deduction from this evidence is that appellant had planned to kill Juan.

In the fifth instance the State commented that a State's witness was instructed about what he could and could not say. Defense counsel objected that the State was striking at appellant over counsel's shoulders. The trial court sustained the objection, instructed the jury to disregard the remark, but denied the motion for mistrial. The State may not strike at the accused over the shoulders of his counsel or accuse counsel of bad faith and insincerity. McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). Generally an instruction to disregard a comment in jury argument will cure the error. Id. Reversible error occurs only when statements to the jury are so extreme, manifestly improper, or inject new and harmful facts into the case that they deprive the accused of a fair and impartial trial. Id.

The record in this case showed that after the court denied the mistrial the State's attorney explained to the court that she was talking about herself and that she did not indicate that defense counsel had done anything improper. We hold that the instruction to disregard cured the error, if any, and that the trial court did not err by denying the motion for mistrial.

In the final instance appellant asserts that the State improperly argued intent contrary to the court's charges. He complains of the following argument:

If you do not believe that he intended to kill, or knowingly if he -- it is, is either intent. It is not just intent. It is intentionally or knowingly. But Defense counsel conveniently leaves out the knowingly. It is intentionally or knowingly. Did he intend to do it? Did he walk up to them or aim in their direction with the intent to cause the result? He either intended to do it or he should have known.

Appellant objected on the basis that the argument was "outside the charge." The trial court sustained the objection and told the jury, "[Y]ou are guided by the instructions, and that closing arguments by both sides are merely their rendition of what they believe the evidence is showing." We hold that the argument was not so extreme or manifestly improper that the instruction could not have cured the error. We overrule point two.

IV. Sufficiency of the Evidence

By point three appellant attacks the legal sufficiency of the evidence to support his convictions, claiming there is no evidence to show that he intended to kill the victims. When reviewing the legal sufficiency of the evidence we apply the test set forth in Jackson v. Virginia, 443 U.S. 307 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). A jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the weapon's use. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

Appellant was convicted of Juan Cabrera's murder and the attempted murder of Efrain Garza. Concerning these offenses the charges required the jury to find from the evidence beyond a reasonable doubt that at the time appellant shot at them he intended to cause their deaths. He was also convicted of the aggravated assault of Randy Rodriguez. A conviction for this offense did not require an intent to kill.

The evidence showed that appellant had threatened Juan prior to the shooting. When Juan and Efrain approached appellant at Vasquez's house appellant aimed the rifle at Efrain and shot him three times at close range. When Juan tried to help him, appellant killed Juan. It was reasonable for the jury to infer appellant's intent to kill Juan and Efrain. We hold that the evidence is legally sufficient to support appellant's convictions for murder and attempted murder. We overrule point three.

V. Extraneous Offenses

By point four appellant asserts that the trial court erred by admitting evidence of extraneous offenses at the guilt/innocence phase. The trial court, over appellant's objections, allowed two witnesses to testify about the two instances when appellant had told Juan Cabrera that he was going down. The court instructed the jury that they were to consider this testimony for the limited purpose of proof regarding motive, or absence of mistake or accident.

Rule 401 of the Texas Rules of Evidence states that relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. This rule is qualified by Rule 403 which states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Tex. R. Evid. 403. Rule 404(b) states that evidence of other crimes, wrongs or acts may be admissible for purposes such as proof of motive or absence of mistake or accident. Tex. R. Evid. 404(b).

The issue in the case was whether appellant was acting in self-defense when he shot the victims. The evidence concerning appellant's prior threats towards Juan are relevant to show his motive for shooting the victims and that he did not shoot them by accident or mistake. Because the jury, due to the limiting instructions, could consider the evidence for these reasons only, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. We hold, therefore, that the trial court did not err by admitting testimony of the extraneous offenses into evidence. We overrule point four.

VI. Hearsay

By point five appellant asserts that in three separate instances the trial court erred by admitting hearsay testimony. In the first instance Rafael Rodriguez testified about the time when appellant pointed the gun out the window of Manuel Vasquez's car and told Juan that he was going down. When appellant had said this to Juan, Juan was with Rodriguez and someone named Patty. The State's attorney asked Rodriguez if anybody had said anything after appellant had made the threat. Over appellant's hearsay objection Rodriguez testified that Patty told Juan to call the police. The State offered the testimony as an excited utterance.

Rule 803(2) of the rules of evidence provide that a statement is not excluded by the hearsay rule if it is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. R. Evid. 803(2). In order for the utterance to be admissible the statement must be the product of a startling occurrence, the declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence, and the statement must be related to the circumstances of the startling occurrence. See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).

In the instant case the evidence showed that Patty's statement was the product of a startling occurrence, that she was dominated by the fear or excitement of the occurrence when she made the statement, and her statement was related to the circumstances of the occurrence.

In the second instance Irene Balli testified that her husband, Rafael, was at the scene when the shooting had occurred. Minutes after the shooting Irene asked him what had happened. Over appellant's hearsay objection Irene recounted what her husband had told her about the shooting. The State offered the testimony as an excited utterance. The evidence showed that Rafael's statement was the product of a startling occurrence (the shooting), that he was dominated by the fear and excitement of the shooting when he made the statement, and his statement was related to the circumstances of the shooting.

In the third instance the evidence showed that Officer Garcia arrived at the scene shortly after the shooting and talked to one of the victims. Garcia testified that the victim told him: "That Pete [appellant] was responsible for whatever happened." Because appellant did not object to this testimony it is not preserved for our review. Tex. R. App. P. 33.1(a)(1)(A). We overrule point five.

We affirm the trial court's judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 17th day of August, 2000.

1. In Smith the court said that although we address the issue in terms of intent to kill the victim the law equally applies to a forfeiture of right to self-defense of any degree of harm that the accused intends to inflict upon the victim. For instance if the accused uses provocation with intent to assault the victim, and provokes an attack and makes an assault, then self-defense is lost regarding the assault. Id., at 512-13.

2. The Smith Court noted that a reviewing court does not have the responsibility to decide if the evidence actually established that the accused provoked the difficulty with the intent to harm the deceased. That question is properly within the province of the jury as judge of credibility and finder of fact. Smith, 965 S.W.2d at 519-20.

3. Appellant allegedly committed the offenses when he was a juvenile. At a prior proceeding he was certified to stand trial as an adult.