Felipe Rubio Gaspar v. State ( 2010 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00050-CR
______________________________
FELIPE RUBIO GASPAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 22386
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
OPINION
Noemi Jiminez,1 her four children, and her current boyfriend, Pedro Guzman, were all
sleeping in Jiminez’s darkened bedroom. Awakened by Guzman’s scream, Jiminez saw her
former boyfriend, Felipe Rubio Gaspar, 2 on top of Guzman and thought Gaspar was hitting
Guzman with his fists. She pulled Gaspar off of Guzman, but Gaspar ―got up and kept just going
back after [Guzman].‖ As the struggle between Gaspar and Guzman continued, it moved through
various areas of the house, including the living room, where the lights had been turned on. When
the two men returned to the living room, Jiminez noticed that Gaspar was holding a screwdriver
and that Guzman was ―drenched in blood‖ and holding a two-foot statue as a weapon. The fight
ended when Gaspar left the premises.
Gaspar was indicted on charges of aggravated assault with a deadly weapon. After a jury
trial, Gaspar was found guilty and sentenced to twenty years’ imprisonment.3 On appeal, Gaspar
argues that there is legally and factually insufficient evidence to support the conviction and that the
trial court erred in failing to allow a jury instruction on self-defense.4 We affirm the conviction
1
In the record, Jiminez is also spelled, ―Jimenez.‖ In this opinion, we use the ―Jiminez‖ spelling.
2
There is testimony that Gaspar and Jiminez once lived together as husband and wife.
3
The sentence was to run concurrently with his sentence in cause number 06-10-00051-CR. Gaspar was also assessed
a $10,000.00 fine and court costs of $436.00.
4
Gaspar received permission to submit one brief for the two appeals (cause numbers 06-10-00050-CR and
06-10-00051-CR) he has pending before this Court.
2
because: (1) the evidence is legally sufficient to support the verdict; and (2) there is no evidence
that Gaspar was acting in self-defense.
Under the authority of a very recent opinion where a plurality of the Texas Court of
Criminal Appeals abolished the separate factual-sufficiency review, we do not address Gaspar’s
challenge to the factual sufficiency of the evidence.5 See Brooks v. State, No. PD-0210-09, 2010
WL 3894613, at **1, 14 (Tex. Crim. App. Oct. 6, 2010).
(1) The Evidence Is Legally Sufficient to Support the Verdict
Gaspar and Jiminez had had an on-again, off-again relationship for several years. After
the relationship finally ended, Gaspar began living in the house of Jesus Perez, within a mile of
Jiminez, and Jiminez began a new romantic relationship with Guzman. Guzman, Israel Jiminez
(Jiminez’s father), and Nelson Rodriguez (her eleven-year-old son), all testified that, earlier on the
day of the alleged assault, Gaspar came to the Jiminez property6 and confronted Guzman, warning
him to leave Jiminez alone and that he would regret ―messing with‖ Jiminez.7
5
With Judge Cochran joining the lead opinion and authoring a concurring opinion and Judge Womack concurring with
the lead opinion and joining the concurrence, in Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at **1, 14 (Tex.
Crim. App. Oct. 6, 2010) (4-1-4 decision), a plurality of the Texas Court of Criminal Appeals abolished the
factual-sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny.
The plurality and Judge Womack agreed that the Jackson v. Virginia legal-sufficiency standard 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 required to prove beyond a reasonable doubt. Brooks, 2010 WL 3894613, at *1, 14.
Since the Texas Court of Criminal Appeals has abolished factual-sufficiency review, we need not address the
challenge to the factual sufficiency of the evidence.
6
The property is owned by Jiminez’s father, Israel Jiminez.
7
Whether Perez was with Gaspar during the confrontation is disputed. Israel testified that Perez was there, while
Perez denies any involvement.
3
After Perez and Gaspar got off work that day, the two traveled to a restaurant in nearby
McKinney, Texas, and ―had a few drinks.‖ On returning to Perez’s home, Gaspar ―got on the
phone and started arguing‖ with Jiminez. Perez believed Gaspar was arguing about ―his kids, and
. . . somebody being there with her.‖ Gaspar indicated he was leaving because he had to ―go do
something over there.‖ Gaspar invited Perez to go with him, but Perez declined saying, ―I don’t
want no problems.‖ Perez testified that Gaspar was drunk and angry that ―the other guy was
down there.‖
Later, when Gaspar returned to Perez’s home, he told Perez that Gaspar had ―wrecked the
car‖ and asked Perez to help him hide it. Perez noticed that both the car and Gaspar were covered
in blood, that one of the car’s tires was ―completely torn up,‖ and that ―the fender was way beyond
repair, couldn’t be fixed.‖
Responding to a 9-1-1 call, Officer Ron Alexander arrived at the Jiminez residence and
saw blood droplets on the wheelchair ramp outside the home, ―quite a bit of blood right there in the
front of the door,‖ and ―blood smeared all over the front door, all over the screen door, a pretty
good amount of blood.‖ He testified that Guzman was lying on the floor, bleeding profusely and
that he appeared to have been stabbed several times. Guzman had thirteen puncture wounds to his
body, head, and face.
Shortly thereafter, the police arrived at Perez’s residence. Alexander noticed ―a little
splatter of blood‖ on the glass of Perez’s front door. Inside Perez’s home, Alexander found
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Gaspar asleep, saw a screwdriver that matched Jiminez’s description on the floor beneath Gaspar’s
outstretched hand, and found a shirt and boots with blood on them. Gaspar was arrested and
charged.
In reviewing the evidence for sufficiency, we consider the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318–19 (1979). Based on the Brooks plurality’s description of the new application of legal
sufficiency review under Jackson as ―rigorous‖ and its statement that the use by reviewing courts
of the factual sufficiency standard in tandem with the legal sufficiency standard may have
―skewed‖ the proper application of the Jackson standard, it appears that the high court is
attempting to refocus the application of the legal sufficiency standard from the quantity to the
quality of the evidence presented. See Brooks, 2010 WL 3894613, at **16–17 (Cochran, J.,
concurring).
In conducting a legal sufficiency review, we consider the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009). We must give deference to ―the responsibility of the trier of fact to fairly
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
5
Jackson, 443 U.S. at 318–19). We are not required to determine whether we believe that the
evidence at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting
evidence, we must presume that the trier of fact resolved any such conflict in favor of the
prosecution, and we must defer to that resolution. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.
App. 1993). Sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997).
Gaspar was charged with aggravated assault with a deadly weapon. The indictment
alleges that Gaspar did
then and there intentionally, knowingly, and recklessly cause bodily injury to Pedro
Noris Guzman by stabbing him with a screwdriver and [Gaspar] did then and there
use or exhibit a deadly weapon, to-wit: a screwdriver during the commission of
said assault.
On appeal, Gaspar argues that the evidence supporting his conviction is insufficient because the
State failed to prove beyond a reasonable doubt that Gaspar, rather than Guzman, was the
aggressor. We disagree.
A person commits aggravated assault with a deadly weapon if he or she intentionally,
knowingly, or recklessly causes serious bodily injury to another while using an object with the
intent, or in such a manner that the object is capable of causing death or serious bodily injury.
TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B), 22.02 (Vernon Supp. 2010).
6
When Jiminez saw Gaspar ―on top of‖ Guzman in the darkened room, the open blinds and
door let in enough light that she could tell that Gaspar was the person attacking Guzman. Jiminez
indicated that Gaspar was the aggressor because she repeatedly tried to pull Gaspar off of Guzman,
but Gaspar ―got up and kept just going back after [Guzman].‖ However, Jiminez admitted that
she never saw Gaspar stab Guzman, that she did not see Gaspar holding a screwdriver until both
men were in the living room, and that she ―didn’t actually know what was going on till later.‖
Rodriguez saw Gaspar stabbing Guzman and indicated that Gaspar was the aggressor and
that he ―wouldn’t stop.‖ Even after Guzman fell to the floor bleeding, Gaspar ―tried to come back
and keep [sic] on stabbing him.‖
Alexander testified that there was a lot of blood all over the house, particularly near the
front door and that, when he arrived, Guzman was lying on the floor, bleeding profusely, appearing
to have been stabbed several times.
Guzman had thirteen puncture wounds to his body, head, and face, but Guzman did not
remember Gaspar stabbing him with a screwdriver. A screwdriver, matching the one Jiminez saw
Gaspar holding, was found at the Perez residence, just beneath Gaspar’s hand as he lay asleep.
Remarkably enough, the screwdriver had Gaspar’s DNA on it, but not Guzman’s. Gaspar’s boots
and shirt both had Guzman’s blood on them.
Gaspar had a single wound in his leg, but no evidence indicates Guzman caused the injury
or was ever in a position to cause the injury. Even when Guzman was holding the statue, there is
7
no evidence he used it against Gaspar. Rodriguez testified that Guzman was about to throw the
statue, but when both he and Gaspar paused, Guzman put the statue down ―and fell to the floor
bleeding.‖
The jury is the exclusive judge of the credibility of witnesses and of the weight to be given
their testimony, and reconciliation of conflicts in the evidence is within the exclusive province of
the jury. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Barnes v. State, 876 S.W.2d
316, 321 (Tex. Crim. App. 1994). The jury may choose to believe some testimony and disbelieve
other testimony. Wyatt, 23 S.W.3d at 30. Here, taking all the evidence into consideration and
reviewing it in the light most favorable to the verdict, there is ample testimony and forensic
evidence to support the jury’s finding that Gaspar attacked Guzman and stabbed him with a
screwdriver. The evidence is legally sufficient to support the verdict.
(2) There Is No Evidence that Gaspar Was Acting in Self-Defense
Gaspar also contends that the trial court erred in denying his requested self-defense
instruction. The State argues that Gaspar failed to preserve this issue for appeal because he failed
to either submit his requested instruction in writing or dictate it into the record.
In order to preserve error relating to the jury charge, there must either be an objection or a
requested charge. Sanders v. State, 69 S.W.3d 690, 692 (Tex. App.—Texarkana 2002, pet.
dism’d, untimely filed); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007), art. 36.15
(Vernon 2006). This Court has held that, to preserve error, ―a request need only be sufficient to
8
call the trial court’s attention to the omission in the court’s charge.‖ Martin v. State, 67 S.W.3d
340, 345 (Tex. App.—Texarkana 2001, pet. ref’d).8 In Arnwine, this Court held that, despite
Arnwine’s failure to present his proposed charge in writing or dictate it into the record, the
defendant’s objection to the failure of the charge ―to instruct the jury on the defense of necessity‖
was sufficient to preserve the issue for appeal because the record indicated ―the trial judge
understood Arnwine’s objection to the lack of a charge on necessity and was aware of his request
to include that charge.‖ Arnwine v. State, 20 S.W.3d 155, 157–58 (Tex. App.—Texarkana 2000,
no pet.).
Similar to Arnwine, the record in this case clearly indicates the trial court understood, or
should have understood, the request of a self-defense instruction. The following exchange
occurred between the trial court, the State, and Gaspar’s counsel:
STATE: In that case, Your Honor, the State would re-urge the
objection, the self-defense claim that I made earlier. I just don’t think there’s a
scintilla of evidence to suggest self-defense. There’s -- there’s argument by
counsel and insinuation by counsel, but as the Court knows, that’s not evidence.
THE COURT: Okay, [Defense Counsel]?
[Defense Counsel]: Your Honor, I think the fact that [Gaspar] was
stabbed in the leg provides more than ample evidence to indicate that the jury could
conclude that he was stabbed in the leg, number one. And, number two, that under
those circumstances that he has a legitimate self interest in defending himself. . . .
8
Martin is consistent with other Texas courts. See Atkinson v. State, 923 S.W.2d 21, 24 n.2 (Tex. Crim. App. 1996)
(―so long as it calls attention to an error or omission‖); Brazelton v. State, 947 S.W.2d 644, 647 (Tex. App.—Fort
Worth 1997, no pet.); Reyes v. State, 910 S.W.2d 585, 592 (Tex. App.—Amarillo 1995, pet. ref’d); Bell v. State, 881
S.W.2d 794, 803–04 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (the request ―need only put the trial court on
notice of an omission or error‖).
9
Having said that, there’s also evidence to indicate that the screwdriver that was
submitted into evidence was not, in fact, the weapon that was allegedly used in the
original premises since there was no DNA evidence nor blood, conclusively, found
on the screwdriver. That takes us back to the original scene where the altercation
occurred. If no weapon was found and he enters in there and [Gaspar] was stabbed
in the leg, then that gives rise to the possibility that he -- that the other party
received the stab wounds in response.
Gaspar has properly preserved this issue for appeal.
A trial court’s decision to deny a defensive issue in a jury charge is reviewed for an abuse
of discretion. Westbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). A trial court
abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding
rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990);
Reynolds v. State, 227 S.W.3d 355, 371 (Tex. App.—Texarkana 2007, no pet.).
A defendant is entitled to an instruction on self-defense if the issue is raised by the
evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of
what the trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d 586,
591 (Tex. Crim. App. 2001); Guilbeau v. State, 193 S.W.3d 156, 159 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d). Before a defendant is entitled to a self-defense instruction, however,
there must be some evidence, when viewed in the light most favorable to the defendant, that will
support the claim. Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248, 251 (Tex. App.—Fort
Worth 2003, pet. ref’d). Thus, entitlement to a self-defense instruction is predicated on the
provision of some evidence that the defendant was authorized to use force against another. ―[A]
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defense is supported (or raised) by the evidence if there is some evidence, from any source, on
each element of the defense that, if believed by the jury, would support a rational inference that
that element is true.‖ Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007). A defendant
need not testify in order to raise a defense. Boget v. State, 40 S.W.3d 624, 626 (Tex. App.—San
Antonio 2001), aff’d, 74 S.W.3d 23, 26 (Tex. Crim. App. 2002). Defensive issues may be raised
by the testimony of any witness, even those called by the State. Jackson v. State, 110 S.W.3d 626,
631 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). When reviewing a trial court’s decision
to deny a requested defensive instruction, ―we view the evidence in the light most favorable to the
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defendant’s requested submission.‖ Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App.
2006). However, ―if the evidence, viewed in the light most favorable to the defendant, does not
establish self-defense, the defendant is not entitled to an instruction on the issue.‖ Ferrel,
55 S.W.3d at 591.
Gaspar argues that the trial court should have included an instruction on self-defense in the
charge, in light of the evidence raised on that issue. He directs our attention to the following
evidence: (1) Gaspar was cut or stabbed in the leg from behind; and (2) only Gaspar’s blood and
DNA were found on the screwdriver. When the foregoing evidence is analyzed in light of the
requirement that some evidence must be raised on each element of the defense, we conclude the
trial court was correct in its decision that an instruction on self-defense was not warranted.
Section 9.31 of the Texas Penal Code provides, in part, that ―a person is justified in using force
against another when and to the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other’s use or attempted use of unlawful force.‖ TEX.
PENAL CODE ANN. § 9.31(a) (Vernon Supp. 2010). Moreover, Section 9.32 of the Texas Penal
Code provides:
(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under
Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly
force is immediately necessary:
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(A) to protect the actor against the other’s use or attempted use of
unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated
kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or
aggravated robbery.
TEX. PENAL CODE ANN. § 9.32(a) (Vernon Supp. 2010).
The record contains no evidence suggesting that Gaspar reasonably believed the use of
force was immediately necessary to protect himself from the use or attempted use of unlawful
force, or to prevent the commission of any of the offenses listed in Sections 9.31 or 9.32 of the
Texas Penal Code. Instead, the evidence here suggests that Gaspar entered the Jiminez home and
attacked a sleeping man without provocation. It could be inferred from the evidence that Guzman
struck, or attempted to strike, Gaspar, possibly with the small statue or the screwdriver. However,
it is undisputed that Gaspar was the aggressor from the moment he entered the Jiminez home until
the time he left, and the evidence also reveals that Guzman seized the statue in order to defend
himself from Gaspar’s relentless attacks. Under these circumstances, Gaspar was not entitled to
an instruction on self-defense. This point of error is overruled.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 6, 2010
Date Decided: November 5, 2010
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