Jose Alejandro Cornejo v. State ( 2007 )

Affirmed and Memorandum Opinion filed June 28, 2007

Affirmed and Memorandum Opinion filed June 28, 2007

In The

Fourteenth Court of Appeals

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NO. 14-06-00201-CR

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JOSE ALEJANDRO CORNEJO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

 Harris County, Texas

Trial Court Cause No. 1031056

M E M O R A N D U M   O P I N I O N

Appellant, Jose Alejandro Cornejo, was indicted for murder. A jury found appellant guilty of the lesser-included offense of aggravated assault with a deadly weapon and assessed punishment at twelve years= confinement.  On appeal, appellant challenges the legal and factual sufficiency of the evidence to support the jury=s rejection of his self-defense claim. Our disposition is based on law that is clearly settled in Texas jurisprudence. Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4. 

I.  Background

Appellant shared a one-bedroom apartment with Crispin Cerrano, Rene Catalan, and complainant, Jose Portillo.  On June 18, 2005, during the early morning hours, appellant and  Portillo were playing a dice game in the kitchen that had begun around 5or 6 p.m. on June 17, 2005.  Cerrano slept on the sofa nearby while Catalan slept in the bedroom.  Sometime after 2 a.m., Cerrano awoke to appellant and Portillo arguing about money Portillo had lost in the dice game. Cerrano saw Portillo throw a large, glass-encased candle at appellant.  The candle hit appellant=s face so hard that the glass broke.  Appellant pulled out a knife from his pocket and stabbed Portillo in the stomach.  Appellant left the apartment.  Catalan called the police.  Appellant was arrested near a wooded area where he often spent time.  Portillo died as a result of the stab wound. 

Appellant was indicted for murder. The jury rejected his self-defense claim and convicted him of aggravated assault with a deadly weapon.

II.  Estoppel as a Bar to Challenge Legal and Factual Sufficiency

As a preliminary matter, the State contends appellant is collaterally estopped from challenging the legal or factual sufficiency of the evidence on the lesser-included offense of aggravated assault because he requested a jury instruction for the lesser-included offense.^[1] See State v. Lee, 818 S.W.2d 778, 781 (Tex. Crim. App. 1991) (plurality op.), overruled on other grounds by Moore v. State, 969 S.W.2d 4, 9B10  (Tex. Crim. App. 1998); see also State v. Yount, 853 S.W.2d 6, 9 (Tex. Crim. App. 1993), overruled in part by McKinney v. State, 207 S.W.3d 366, 373-74 (Tex. Crim. App. 2006); Otting v. State, 8 S.W.3d 681, 686B87 (Tex. App.CAustin 1999, pet. ref=d), disapproved in part by McKinney, 207 S.W.3d at 372B74.  Apparently anticipating the State=s argument, appellant contends in his third issue that he is not collaterally estopped from challenging the legal and factual sufficiency of the evidence to support his conviction for aggravated assault and the jury=s rejection of his self-defense claim.  Appellant relies on opinions from this court and the First Court of Appeals questioning the application of the estoppel rule to legal sufficiency challenges to convictions for a lesser-included offense requested by the defendant.  See McKinney v. State, 177 S.W.3d 186, 192B94 (Tex. App.CHouston [1st Dist.] 2005), aff=d, 207 S.W.3d at 375; McClendon v. State, 167 S.W.3d 503, 508 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). 

After the parties filed appellate briefs with this court, the Court of Criminal Appeals in McKinney v. State, clarified  proper application of the estoppel rule. 207 S.W.3d at 373B74.  The court explained that it made little sense to preclude a defendant from challenging the legal and factual sufficiency of the evidence on appeal simply because the defendant requested and received an instruction on a lesser-included offense.  Id. at 374. The court confined application of the estoppel rule to cases that involve a challenge to sufficiency of the evidence as it relates to the sudden-passion element of voluntary manslaughter and arose before September 1, 1994.  Id. This case does not fall within the narrow exception defined by the court.^[2]

Accordingly, we sustain appellant=s third issue and consider his challenges to legal and factual sufficiency of the evidence. 

III.  Legal Sufficiency

In his first and second issues, appellant contends the evidence is legally insufficient to justify the jury=s implicit finding that he did not act in self-defense when he stabbed Portillo.  In response, the State contends the evidence is legally sufficient to support the jury=s implicit finding because appellant failed to establish that deadly force was immediately necessary for his protection.  We agree with the State. 

A.        Standard of Review

In reviewing legal sufficiency of the evidence to support the trier of fact=s  rejection of a self-defense claim, we do not determine whether the State presented evidence that refuted appellant=s self-defense evidence.  See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).  Rather, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found (1) the essential elements of the crime beyond a reasonable doubt and (2) against the defendant beyond a reasonable doubt on the self-defense issue. See id.  The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.  See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). 

B.        Applicable Law

The defendant bears the burden of producing some evidence to support his claim of self-defense.  See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton, 804 S.W.2d at 913).  However, once self-defense is raised, the State bears the burden to disprove the defense.  See id. The burden of persuasion is not one that requires production of evidence; rather it only requires that the State prove its case beyond a reasonable doubt.  See id.  Self-defense is a fact issue to be determined by the jury.  See Saxton, 804 S.W.2d at 913B14.  When the jury finds the defendant guilty, there is an implicit finding against the defensive theory.  See Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. 

Under the law of self-defense, a person is justified in using deadly force  (1) when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful deadly force and (2) if a reasonable person would not have retreated under the circumstances.  See Tex. Penal Code Ann. '' 9.31, 9.32(a) (Vernon 2003).  A person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another or uses or exhibits a deadly weapon during the commission of the assault.  See Tex. Penal Code Ann. '' 22.01(a)(1), 22.02(a)(1)-(2) (Vernon Supp. 2006).  

C.        Analysis

We conclude a rational jury could have found the essential elements of aggravated assault beyond a reasonable doubt and against appellant beyond a reasonable doubt on his self-defense claim. 

At trial, Cerrano testified regarding the events that he witnessed the morning of June 18, 2005.  Specifically, while sleeping on a sofa near the kitchen, he was awakened by an argument between appellant and Portillo.  Portillo was intoxicated and aggressive.  Appellant and Portillo  were arguing about money Portillo lost in a dice game.  Appellant was standing at the entrance to the kitchen. He was also approximately five feet from the front door. Cerrano saw Portillo throw a heavy, glass-encased candle that hit appellant in his face. Then appellant pulled a knife out of his right pocket, stabbed Portillo in the abdomen, and left the apartment.

Henry Palacios, a homicide investigator for the Harris County Sheriff=s Department, testified that he arrested appellant at the edge of a wooded area.  He found a glass-encased candle and a steak knife in appellant=s pockets.  Immediately after the arrest, Palacios communicated  Miranda rights in Spanish.   Then appellant stated, AHe hit me with a candle and this made me so mad; so I stuckCI stabbed him.@  Subsequently, appellant was submitted to a  videotaped interview at the police station.  The videotape was played and translated for the jury during Palacios=s testimony.  In the video, appellant stated that after losing the dice game, Portillo told him, AI=m going to take away the money from you.  I am going to eat you.@  Appellant explained that Agoing to eat you@ meant Ahe was going to kill me.@ When appellant asked him what he was going to do, Portillo told him, AI am going to get you with these [candles].@  Appellant further stated, ASo he ran like this and I followed him and I pulled out the knife and I hit him like this.@  When asked where Portillo was running to, appellant responded by explaining where they were standing.  During the videotaped interview, appellant agreed that he Agot upset@ when he was hit by the candle. 

At trial, appellant testified that he had been  acquainted with Portillo for about three years.  He observed that Portillo had a tendency to fight with others. He testified that they had been playing dice since about 5 or 6 p.m. the previous evening.  Portillo had invited someone named AHerman@ to play with them that evening. Portillo had fought with Herman in the past.  Portillo and Herman drank a twelve-pack of beer that night.  They fought again.  After Herman left, appellant and Portillo played for another hour and a half.  After Portillo lost and appellant told him that he did not want to play anymore, Portillo said, AOh, you=re not going to play?  Then I=m going to kill you.  I=m going to eat you.@  Portillo said he was going to hit him with the candle and Arob it [the money appellant won].@  Appellant thought  Portillo would Afinish me up@ after he threw the candle because kitchen knives were accessible.  Appellant testified that he pulled the knife to discourage Portillo from a continued attack.  He explained that he took the candle before leaving because he did not want Portillo to throw it again.

Dr. Ana Lopez, an assistant medical examiner at the Harris County Medical Examiner=s Office, testified that Portillo=s stab wound had a sharp angle and blunt angle to it, indicative of the characteristics of the steak knife.  She stated that Portillo had a blood alcohol level of .10, which is higher than the legal limit for driving while intoxicated.  She agreed that the candle could cause serious bodily injury or death.  Deputy Robbennott, of the Harris County Sheriff=s Department, the first officer to arrive at the scene, also testified that he thought the candle could be used as a deadly weapon. 

Appellant offers several reasons why the evidence is legally insufficient to justify the jury=s implicit finding that he did not act in self-defense.  First, appellant argues the testimony at trial showed Portillo was the initial aggressor.  But,  Cerrano and appellant both testified that the candle was on the floor after it struck appellant.  Moreover, appellant admitted that Portillo had no weapon in his hands when he was stabbed. Under Texas Penal Code section 9.32, ADeadly Force in Defense of a Person,@ there must be evidence that the force was immediately necessary for protection.  See  Tex. Penal Code Ann. ' 9.32(a).   Thus, a rational jury could have concluded that a reasonable person in appellant=s situation would not have believed deadly force was immediately necessary to protect himself from Portillo=s use of unlawful deadly force because   Portillo no longer had the candle, or any other weapon, in his hand.

Second, appellant contends that it was less reasonable for him to retreat because he was inside his own apartment.  However, both men lived in the apartment. Furthermore,  Cerrano and appellant testified Portillo was standing inside the kitchen, while appellant was standing near the kitchen door, giving  appellant a path of retreat.  Specifically, Cerrano stated appellant was about five feet from the front door.  A rational jury could have believed that a reasonable person in appellant=s situation would have retreated through the nearby front door.  Accordingly, a rational jury could have determined that a reasonable person in appellant=s situation would not have concluded that deadly force was immediately necessary for his protection. 

Similarly, a rational jury could have determined that appellant stabbed Portillo because he was Amad@ or Aupset.@ Officer Palacios testified that appellant admitted he was  mad. This evidence was corroborated by appellant=s statement, in the videotaped interview, that he was Aupset.@  Notwithstanding appellant=s  trial testimony that he was not Amad@ and did not tell officer Palacios that he was Amad,@ the jury as the trier of fact and exclusive judge of the credibility of the witnesses could decide what weight to give the testimony.  See Margraves, 34 S.W.3d at 919.  Third, appellant argues that in addition to attacking him with a deadly weapon,   Portillo threatened to rob him.  However, a rational jury could have concluded that, despite the attack with the candle and threat to take his money, a reasonable person would have retreated through the nearby front door. 

Fourth, appellant argues that he left the apartment as soon as possible, thinking he had temporarily halted Portillo=s aggression.  He suggests he was unaware that  Portillo was fatally wounded.  However, the jury could have reasonably concluded that appellant intended to cause Portillo serious bodily injury or death because he stabbed Portillo in a vital area of his body. 

Fifth, appellant asserts, without explanation, that there was no physical evidence contradicting his self-defense claim.  Moreover, he contends that Portillo had a history of violence and aggression.  However, the jury, as the trier of fact and exclusive judge of the credibility of the witnesses was entitled to determine what weight to give these factors.  See Margraves, 34 S.W.3d at 919.

In sum, we hold that a rational jury could find beyond a reasonable doubt that appellant did not act in self-defense when he stabbed Portillo in the abdomen. Accordingly, we find the evidence legally sufficient to support the jury=s rejection of appellant=s self-defense claim.  See Saxton, 804 S.W.2d at 914.  We overrule appellant=s first and second issues. 

IV.  Factual Sufficiency

In his fourth issue, appellant contends the evidence is factually insufficient to support the jury=s rejection of his self-defense claim.

A.        Standard of Review

When reviewing factual sufficiency to support rejection of a defense, we review all the evidence in a neutral light and determine whether (1) the State=s evidence taken alone is too weak to support the finding and (2) whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.  See Zuliani, 97 S.W.3d at 594; see also Watson v. State, 204 S.W.3d 404, 416B17 (Tex. 2006).  We will reverse a guilty verdict on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Watson, 204 S.W.3d at 417.  

B.        Discussion

Appellant contends the evidence is factually insufficient because the Aonly possible factor that could have influenced the jury to reject appellant=s self-defense claim was whether or not a reasonable person would have retreated under the circumstances.@ Appellant focuses on the fact that the jury requested a read-back of the following portion of his videotaped statement:  APortillo moved away from him and he stabbed him [Portillo].@  In this requested portion, appellant said, ASo, he ran like this and I followed him and I pulled out the knife and I hit him like this.@  Appellant contends the jury placed undue emphasis on this one portion of the evidence and disregarded the weight of other evidence. Specifically, appellant contends he was erroneously depicted as chasing Portillo in order to stab him.  However, the evidence shows that appellant was standing in a position to retreat because he was located at the kitchen door and five feet from the front door.  Moreover, appellant implicitly acknowledged that he was standing at the exit of the kitchen with nothing blocking his way to the front door.  When reviewing evidence, we must avoid intruding on the fact finder=s role as the sole judge of the weight and credibility of the witness testimony.   See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). 

Appellant also argues that Acalmly and quietly depart[ing]@ is Anot the real world.@  However, a rational jury could have concluded that a reasonable person under the circumstances, with the front door within close reach, would not have reacted by stabbing Portillo in the abdomen with a knife. 

Appellant further contends the jury when considering the videotaped statement, failed to consider the language barrier the fact that the interpreter could not translate unintelligible portions of the videotaped statement.  However, in our factual sufficiency analysis, we consider all the evidence to see if it meets the legal standard for factual sufficiency.  Any alleged failure to translate unintelligible portion of the videotaped statement is not material to our factual-sufficiency review.  The jury was also free to consider the language barrier in considering the weight to give the evidence.  Appellant also contends the State improperly argued that appellant had requested inclusion of the lesser-included offense of aggravated assault in the jury charge.  See Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon 2006) (providing that the jury shall not be advised that a party requested a particular charge).  Appellant concedes that he failed to preserve error on this point, but he argues that it should still be considered in our factual sufficiency review.  Appellant cites no authority for this proposition.

The jury was entitled to believe all of the State=s evidence and disbelieve all of the evidence introduced by appellant.  See Tucker v. State, 15 S.W.3d 229, 236 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  After reviewing the evidence in a neutral light, and giving due deference to the jury=s assessment of witness credibility, we conclude that the verdict is not against the great weight and preponderance of the evidence.  Accordingly, appellant=s fourth issue is overruled and the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed June 28, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Based on the record, it appears appellant requested the lesser-included offense instruction.

^[2]  The State makes an alternative argument that is premised on the Court of Criminal Appeals not having addressed the estoppel issue.  Because the high court has addressed this issue in a manner inconsistent with the State=s alternative argument, we conclude this argument lacks merit.