Jesus Rivera v. State ( 2016 )

NUMBER 13-15-00145-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JESUS RIVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 144th District Court
of Bexar County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Garza
A jury found appellant, Jesus Rivera, guilty of murder, a first-degree felony. See
TEX. PENAL CODE ANN. § 19.02(b), (c) (West, Westlaw through 2015 R.S.). The jury
assessed punishment at sixty-six years in prison. By a single issue, Rivera contends the
evidence is insufficient to support the jury’s rejection of his claim that he acted in self-
defense. See id. §§ 9.31, 9.32 (West, Westlaw through 2015 R.S). We affirm.
I. BACKGROUND1
Appellant admits that he killed the victim, Ryan Yearley, by shooting him with a
shotgun. Appellant contends, however, that he acted in self-defense because Ryan came
toward him with an open pocketknife. We have summarized below the relevant testimony
regarding the events surrounding Ryan’s death.
Jose Alfredo “Frijol” Torres testified that he is appellant’s friend and has known him
for three or four years. For about four months in 2012, Torres and appellant lived in San
Antonio, Texas, in a “back house” on property owned by appellant’s father. Appellant’s
sister, Maria Rivera, lived in the “front house” with her boyfriend, Ryan, and their infant
son.
In 2012, on the day before Thanksgiving, Torres was at the front house with Ryan
and Maria. Appellant was at the Academy store purchasing a 12-gauge shotgun;
appellant wanted the firearm for self-protection against some gang members who had
assaulted him. Torres testified he was not comfortable with appellant purchasing a gun
because appellant had a bad temper and was easily angered. For example, on one
occasion, appellant cut Torres’s hand with a knife because Torres had borrowed
appellant’s car without his permission. On the night before Thanksgiving, Torres, Ryan,
and appellant were smoking “Klimax.”2 Torres left around 8:30 p.m. because Ryan was
becoming belligerent.
The next morning, Thanksgiving Day, Torres was awakened at his apartment
1This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant
to an order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw
through 2015 R.S.).
2 The record reflects that Klimax is synthetic marijuana.
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around 7:00 a.m. by a telephone call from appellant. Appellant asked Torres to come to
the house because “something had happened.” When Torres arrived, appellant was
sitting on the couch with a shotgun. Appellant told Torres to look in the bathroom; Torres
saw Ryan’s dead body lying on the bathroom floor. Because appellant still had the
shotgun, Torres was afraid that appellant may shoot him. Appellant said they had to get
rid of Ryan’s body and that “no one has to know.” Appellant and Torres cut out the springs
and insides out of a mattress, and placed Ryan’s body inside the mattress cover. They
carried Ryan’s body to the back house and placed it inside a bathtub. Appellant told
Torres that he could “disappear” if he told anyone about the incident.3
Appellant and Torres returned to the front house, smoked Klimax, and played video
games. Torres attempted to comfort Maria; she was afraid of appellant. Appellant did
not tell Torres what happened and did not tell him that he had killed Ryan in self-defense.
Neither Torres nor Maria called the police because they were afraid of appellant and did
not want him to go to jail.
On cross-examination, Torres admitted that he believed the incident in which
appellant cut his hand was an accident and was not intentional. When the incident
occurred, appellant apologized repeatedly and took Torres to the hospital for medical
care. Torres said that the night before Thanksgiving, Ryan had taken heroin, Xanax, and
had smoked Klimax. According to Torres, when Ryan told Torres to leave that night, he
“said in an angry way, Nigger, leave.” Ryan had used that term with Torres on other
occasions, when Ryan had been drinking.
3 Both Torres and Maria were given immunity in exchange for their testimony.
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Torres testified that after he and appellant carried Ryan’s body to the back house,
they walked to Jorge “Orlando” Torres’s house and talked with him. After they returned,
Torres caught the bus and returned to his apartment.
Maria testified that prior to Ryan’s death, she had been alone at home with the
baby and had heard noises in the hall, which frightened her. The night before
Thanksgiving 2012, her father took appellant to Academy to buy a shotgun. Maria was
uncomfortable with appellant having a gun in the house because he had a bad temper.
On one occasion, appellant had punched holes in the wall and had broken a window in
the back house because Ryan and a cousin had smoked some of appellant’s Klimax.
On the night of Ryan’s death, Ryan, appellant, and Torres were hanging out on the
back patio smoking Klimax. Ryan had also taken pills and consumed beer. Later in the
evening, Ryan and Maria went to bed. The baby was also in the bed. At some point,
Maria woke up and Ryan was not in the bedroom. She found him and appellant in the
living room smoking Klimax and watching television. They were not fighting or bickering.
She did not see a shotgun or a knife. Maria asked Ryan to return to bed, but he did not.
Maria returned to bed, but did not go to sleep right away. A short while later, she heard
a gunshot and heard appellant laughing. As she got up, appellant came to the door of
the bedroom and said, “I’m going to do you next.” Maria went into the living room and
saw Ryan’s body on the floor. She did not see any knife or gun. Appellant went into her
bedroom and went to sleep on the bed.
According to Maria, at some point, appellant woke up and ordered her to clean up
Ryan’s blood. She used Clorox and towels to clean the carpet. Maria did as appellant
directed because she was afraid he would shoot her. Appellant said that they would tell
others that Ryan had gone out drinking the night before and had not returned. Appellant
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moved Ryan’s body into the main house bathroom and called Torres to come over.
Maria testified that appellant also threatened Torres, but she was not present when
that occurred. Appellant asked Maria to hide Ryan’s knife that he usually carried on his
waist and his lighter so it would appear that Ryan had taken the items with him when he
left the house. When Torres arrived, he and appellant removed the insides of a mattress,
placed Ryan’s body inside the mattress cover, and moved the body to the back house.
Maria said that appellant planned to cut up Ryan’s body and throw the pieces into the
river. While appellant and Torres were carrying Ryan’s body to the back house, Maria
hid the shotgun so appellant would not have access to it.
Later that morning, Ryan’s mother came to the house. Appellant was on the couch
playing video games. Maria and the baby went with Ryan’s mother to celebrate
Thanksgiving with family. Maria told Ryan’s mother that Ryan had not come home the
previous night. Maria did not call the police because she was afraid.
When they returned to the house, Maria’s parents had arrived. Appellant was on
the couch sleeping. Maria talked to her parents on the back patio and told them about
Ryan’s death; together, they called the police immediately. Ryan’s mother had left the
house briefly to look for Ryan; when she returned, the police were at the house. By the
time the police arrived, appellant had left the house.
According to Maria, before Ryan’s death, Maria had wanted to end her relationship
with Ryan. She wanted him to move out, but he wanted to continue the relationship. On
one occasion, appellant asked Maria what she would do if he killed Ryan.
On cross-examination, Maria admitted that she had once seen Ryan use a knife in
a threatening manner by making slashing gestures. Before moving into the house, when
she and Ryan lived in an apartment, Ryan had broken the door at the apartment, punched
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holes in the wall, and had occasionally hit her. Ryan often consumed Xanax and beer, a
combination of substances that made him aggressive. He also sometimes consumed
cocaine. During the evening the night of his death, Ryan left the house and went across
the street to a neighbor’s house. When he returned, Maria could tell that Ryan had
consumed Xanax and beer.
Earlier in November, Ryan had overdosed on methamphetamine and had a
seizure. A neighbor helped to save his life. Maria had asked Ryan to leave the house on
a couple of occasions, but he had not done so. Because Maria was not working, she was
dependent on Ryan for her support. She and Ryan had written an agreement providing
for shared custody of the baby and for Ryan to pay Maria child support. Maria admitted
that Ryan’s demeanor could change from calm to angry very quickly. Maria stated that,
after Ryan’s death, appellant told her that Ryan had a knife and was “acting all bad ass.”
After the incident in which Maria heard noises in the house, Ryan had attempted to
purchase a gun at a pawnshop, but had failed a background check because he was on
probation for drug possession.
Hector Armando Hernandez, a neighbor who lived across the street, testified for
the defense. On the night before Thanksgiving, Ryan visited Hernandez’s house. Ryan
consumed Xanax and beer and also snorted some heroin. When Ryan left that night, he
was stumbling and had trouble talking. Ryan also consumed cocaine every weekend.
One night before the shooting, Ryan was on drugs and became very aggressive with
Hernandez. Hernandez did not want to get in a fight and went home.
Joseph Garcia, another neighbor that lived nearby, testified that he saw Ryan
drinking at Hernandez’s house the night before Thanksgiving. He stated that Ryan had
been smoking Klimax that night, but appeared to be sober when he left.
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Appellant testified that he purchased the shotgun for home protection and in part
because Ryan was unable to purchase a weapon. At Maria’s request, appellant had been
sleeping on the couch in the main house for about a month. On the day before
Thanksgiving, appellant’s father picked appellant up from work. When appellant arrived
at the house, Ryan was consuming Klimax and Xanax. Ryan had about six or seven
Xanax tablets in his shirt pocket. Appellant told Ryan that he was planning to buy the
gun. Appellant’s father picked him up at the house and took him to cash his paycheck.
Appellant told his father he wanted to purchase a gun for self-protection; appellant’s father
opposed the idea of purchasing a gun. Appellant’s father recommended purchasing the
gun at Academy instead of at a pawn shop.
Appellant testified that he told the clerk at Academy that he wanted a cheap
weapon for home protection. Appellant had never fired a gun. Appellant purchased a
shotgun and a box of five shells. Appellant did not read the instructions that came with
the shotgun. No one showed him how to handle or operate the weapon, and he received
no instruction regarding safety precautions. After he arrived at home, appellant loaded
the shotgun with one old shell and one new shell. He planned to celebrate the purchase
with Ryan by firing the weapon outside.
According to appellant, he joined Ryan and Torres, who were sitting on the patio.
Appellant noticed that Ryan was very “messed up” and “drugged out” and was in no
condition to handle a weapon. Appellant did not activate the “safety” switch on the
shotgun. Appellant had the shotgun with him as he sat on the patio with Ryan and Torres.
Ryan asked to see the shotgun, but appellant said “not now.” Ryan’s mood toward Torres
was agitated and confrontational. Torres went home. Ryan also went inside. Appellant
collected Ryan’s Klimax and glass pipe and took them inside. Appellant put the shotgun
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under the sofa and went to sleep on the sofa.
Appellant testified that at some point, he awoke and started watching television.
Ryan came out of the bedroom and into the living room. Ryan’s disposition was even
worse than it had been earlier; he was “messed up on Xanax and beer” and had an
agitated stare. Ryan demanded to know where his Klimax was; appellant pointed out it
was on the coffee table. Ryan aggressively packed a bowl of Klimax and smoked it
aggressively, inhaling very strongly. Ryan did not offer appellant a “hit,” which was
unusual. Because Ryan’s failure to share his drugs was unusual, appellant felt there was
a problem. Ryan dumped the ashes onto the coffee table and proceeded to pack another
bowl. It was very unusual to smoke inside the house because Maria had a rule prohibiting
smoking in the house. Ryan smoked the second bowl without offering any drugs to
appellant, which had never occurred before. Ryan dumped the ashes from the second
bowl onto the coffee table and proceeded to pack a third bowl. Maria came out of the
bedroom and asked what they were doing. Maria returned to the bedroom and Ryan
smoked a third bowl of Klimax. Appellant had never seen Ryan or anyone smoke three
bowls of Klimax in rapid succession. After finishing the third bowl, Ryan began to pack a
fourth bowl.
According to appellant’s trial testimony, after Ryan smoked a fourth bowl of Klimax,
appellant turned off the television and went to sleep on the couch. Appellant awoke to a
sound. When he looked up, he saw Ryan’s face looking at him about a foot away.
Appellant bolted upright. Ryan was clenching a pocketknife in his right hand. Ryan
moved toward appellant, throwing slashes toward appellant’s face. Appellant tried to lean
away from Ryan. Ryan had a menacing stare and looked angry. Appellant leaned down
and grabbed the shotgun from under the sofa. Appellant stood up and moved away from
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Ryan. Ryan moved toward appellant, still clenching the pocketknife. Appellant testified
that he chambered a shell into the shotgun, but Ryan continued to move toward him.
Ryan was about an arm’s length away from appellant and Ryan aimed the pocketknife at
the left side of appellant’s neck and face. Appellant swung around, threw the gun up, and
fired. According to appellant, he felt that he was about to be killed. He did not plan on
killing Ryan; he just threw the gun up for protection and shot. Ryan’s body was thrown
by the force of the blast and landed on the floor. Appellant saw no movement in Ryan’s
body.
Appellant testified that he opened the door to Maria’s room, but she was already
at the door. Appellant walked into the bedroom and sat on the bed. He felt sad and
confused. After recalling that people would be coming over later in the morning, appellant
moved Ryan’s body to the bathroom. Appellant attempted to revive Ryan by placing an
ammonia capsule under his nose and by splashing water on his face, but there was no
reaction. Appellant broke down. He then asked Maria to clean up the blood in the
bathroom. Maria suggested cleaning the carpet with a scrubber. When the cleaner failed
to remove the bloodstains on the carpet; Maria suggested cutting out the stained piece of
carpet with a boxcutter and replacing it with another piece of carpet. Appellant noticed
the knife Ryan usually carried in a sheath on his belt and his lighter in the master
bathroom. Realizing that Ryan would have taken the items if he had left the house,
appellant asked Maria to hide them. He looked in the living room for Ryan’s pocketknife,
but did not find it. Appellant knew he could not move Ryan’s body alone, so he called
“Frijol” Torres and asked him to come over.
Torres and appellant used the boxcutter to remove the insides of a mattress from
the back house. They put Ryan’s body inside the empty mattress cover and moved it into
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the bathtub in the back house. They also put Ryan’s wallet in the bathtub. They then
walked to Orlando Torres’s house about a mile away and told him what had happened.
After they returned to the house, “Frijol” Torres left to catch the bus back to his house.
Eventually, Ryan’s mother came by and picked up Maria and the baby. Appellant’s
parents came by later in the day and brought some food. Appellant pretended to be
asleep on the couch in order to avoid talking. Appellant was aware that Maria was talking
to their parents. Appellant panicked, knowing that his parents were learning the truth and
that the police would come. Appellant went out the back gate and ran toward his
grandfather’s house. Appellant saw his grandfather sitting in a wheelchair on the porch
of the house. Shortly thereafter, the police arrived, and appellant surrendered.
Appellant testified that he and Ryan worked together for awhile and sometimes
traveled out of town to military bases together. At one time, appellant loaned his vehicle
to Torres, but while in Torres’s possession, the car overheated and was no longer
operable. After that incident, appellant did not give Torres permission to borrow his car.
Appellant looked up to Ryan because he had some skills in taking care of vehicles.
Appellant felt that Ryan was “tougher” and acted as appellant’s protector. After the
shooting, Maria lived with her parents for a short while, then lived with her aunts.
Appellant was unaware that Maria planned to separate from Ryan. On one occasion,
appellant saw Ryan and Orlando Torres involved in a fight; the dispute began with a
verbal argument, escalated into a physical fight, and resulted in Ryan cutting Orlando’s
leg. About five days before the shooting, appellant and Ryan walked to the store to buy
Klimax. On the way, Ryan pulled out his knife and said he planned to attack some
homeless people; when he did not see any homeless people, he attempted to stab a dog.
On another occasion, Ryan pulled a knife on a stranger at a bus stop. Appellant stopped
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Ryan from continuing that confrontation.
On cross-examination, appellant said he fired the shotgun to protect himself. The
State asked appellant why he encouraged the story that Ryan went out drinking and did
not come home instead of telling Maria that he had killed Ryan in self-defense. Appellant
responded that he postponed telling the truth to spare Ryan’s mother’s feelings.
Appellant denied that he threatened Maria. Appellant admitted that neither he nor Maria
found the pocketknife around Ryan’s body. The pocketknife that appellant claimed Ryan
attacked him with was found by the police outside on the patio. Appellant denied that he
threatened Maria or “Frijol” Torres with the gun. After appellant realized that Maria had
told his parents, he ran from the house because he did not want to face Ryan’s mother.
Detective Kelly Bender, a crime scene detective with the San Antonio Police
Department, testified regarding the videotaping of the crime scene. An open pocketknife
was found on the back patio. Scott Coonradt, a San Antonio Police Department officer
assigned to the Crime Scene Unit, testified that a writing pen, glove, and pocketknife were
recovered from the back patio. Officer Coonradt testified that there was no apparent
blood on the pocketknife that was recovered on the back patio.
Timm Angell, a San Antonio Police Department officer assigned to the homicide
unit, testified that he was the lead detective in the investigation of Ryan’s death. Angell
testified that he submitted the pocketknife found on the patio for testing, but no blood was
found on the pocketknife. According to Angell, the shotgun blast to Ryan’s chest was a
“dead center shot,” and the muzzle could have been inches away from Ryan’s chest.
Based on the compact nature of the fatal wound, Angell believed that the shotgun was
fired braced at the shooter’s shoulder. Officer Angell testified that both of Ryan’s hands
had blood stains on them, but the pocketknife had no blood on it. Officer Angell testified
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that if Ryan had been holding the pocketknife when he was shot, one would expect the
knife to have blood on it.
Dr. Kimberley Molina, the Deputy Chief Medical Examiner for the Bexar County
Medical Examiner’s Office, testified regarding the autopsy performed on Ryan’s body.
Tests revealed the presence of two types of synthetic marijuana in Ryan’s system, but
did not show the presence of other drugs or alcohol. In Dr. Molina’s opinion, the shotgun
was fired approximately six feet from Ryan’s body. On cross-examination, Dr. Molina
admitted that, even if Ryan had taken Xanax eight to ten hours before his death, the drugs
may not have been detected by the tests that were performed. Similarly, other drugs
such as alcohol and heroin may not have been detectable.
II. STANDARD OF REVIEW AND APPLICABLE LAW
By his sole issue, appellant challenges the sufficiency of the evidence to support
the jury's rejection of his self-defense claim.
When an appellant brings a sufficiency challenge on the basis of his claim of self-
defense, we do not look to whether the State presented evidence that refuted self-
defense. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Valverde v. State,
490 S.W.3d 526, 528 (Tex. App.—San Antonio 2016, pet. ref’d). Instead, after reviewing
all the evidence in the light most favorable to the verdict, we determine whether any
rational trier of fact would have found the essential elements of the offense beyond a
reasonable doubt and found against the appellant on the self-defense issue beyond a
reasonable doubt. Saxton, 804 S.W.2d at 914; Valverde, 490 S.W.3d at 528. The jury
resolves any conflicts in the testimony and determines the credibility of the witnesses and
the weight to be given to their testimony. See Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012); Valverde, 490 S.W.3d at 529. Our duty is to ensure the evidence the
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State presented supports the jury's verdict and the State has presented a legally sufficient
case of the offense charged. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim.
App. 2012).
As charged here, a person commits murder if he (1) intentionally or knowingly
causes the death of an individual, or (2) intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual.
TEX. PENAL CODE ANN. § 19.02(b)(1)(2). 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.
Id. § 9.31(a). A person is justified in using deadly force against another (1) if he would be
justified in using force against another under section 9.31 and (2) when and to the degree
he reasonably believes the deadly force is immediately necessary to protect himself
against the other's use or attempted use of unlawful deadly force. Id. § 9.32(a).
The defendant has the initial burden of producing evidence to raise self-defense,
and the State then has the final burden of persuasion to disprove it. Saxton, 804 S.W.2d
at 914. The State is not obligated to offer evidence refuting a claim of self-defense; rather,
the State is required to prove its case beyond a reasonable doubt. Id. “Because the
State bears the burden of persuasion to disprove a [claim of self-defense] by establishing
its case beyond a reasonable doubt, we review both legal and factual sufficiency
challenges to the jury’s rejection of such a defense under” the legal sufficiency standard.
Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
When a fact finder determines the defendant is guilty, there is an implicit finding against
the defensive theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).
“As factfinder, the jury is entitled to judge the credibility of witnesses, and can
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choose to believe all, some, or none of the testimony presented by the parties.” Smith,
355 S.W.3d at 146 (quoting Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991)). The statements of the defendant and his witnesses do not conclusively prove a
claim of self-defense. Id.
III. DISCUSSION
Self-defense is a fact issue for the jury to determine. Saxton, 804 S.W.2d at 913.
Here, Maria, who was present in the next room when the shooting occurred, testified that
she heard appellant laughing immediately after the shotgun blast. When appellant came
to her bedroom door, he did not say that he had shot Ryan in self-defense. Instead, he
threatened to shoot her also. According to Maria, appellant told her to say that Ryan had
left the house and had not returned. To add credibility to this story, appellant asked Maria
to hide Ryan’s knife and lighter.
“Frijol” Torres’s testimony was consistent with Maria’s. Torres testified that when
he arrived at the house and saw Ryan’s body, appellant said they had to get rid of the
body and that “no one has to know.” Appellant threatened that Torres could “disappear”
if he told anyone about the shooting. Appellant did not tell Torres that he killed Ryan in
self-defense.
The only evidence that appellant shot Ryan in self-defense was appellant’s own
testimony, which the jury could have rejected. See Valverde, 490 S.W.3d at 529 (“In our
review, we defer to the jury's assessment of the credibility of the witnesses, and the jury
in this case could have disbelieved Valverde's testimony.”). No other evidence supported
appellant’s version of events. The pocketknife appellant claimed that Ryan threatened
him with was found outside on the patio. The pocketknife did not have any traces of blood
on it, even though there was blood on both of Ryan’s hands. Finally, the jury was entitled
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to consider appellant’s actions in leaving the scene as soon as he realized that the police
had been called. See id. (citing Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App.
2007) (noting “factfinder may draw an inference of guilt from the circumstance of flight”);
Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—Fort Worth 2014, pet. ref'd) (referencing
flight from scene as evidence jury could consider in rejecting self-defense claim)).
Having reviewed all of the evidence in the light most favorable to the prosecution,
we conclude the jury rationally could have found each element of the offense was proven
beyond a reasonable doubt, and rationally could have rejected appellant’s self-defense
claim. See id. at 528. We overrule appellant’s sole issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
1st day of December, 2016.
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