Julio Antonio Nevarez v. State

NO. 07-06-0400-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 24, 2008

______________________________

JULIO ANTONIO NEVAREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 51,579-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

          Appellant Julio Antonio Nevarez appeals from his jury conviction of the offense of murder and his resulting sentence of imprisonment for a term of twenty-five years in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Factual BackgroundAppellant’s indictment charged that he intentionally and knowingly caused the death of Edgar Alex Avila, by stabbing him with a knife. Following his plea of not guilty, the matter proceeded to trial by jury. At trial, the State’s evidence showed that during the early morning hours on a night in May 2005, bar patrons were leaving a local bar. As several individuals approached the parking lot, the victim and a friend of appellant began fighting. A two-minute altercation ensued and after the victim and the friend were separated by a security guard, appellant came from behind the victim and stabbed him in the neck with a knife. The victim later died from this wound.

          Appellant testified at trial, claiming self-defense and “accident.” At the close of the evidence, appellant submitted proposed jury instructions on self-defense and on manslaughter as a lesser-included offense. The court included the requested instruction on self-defense, but denied the manslaughter charge. The jury returned a verdict of guilty as alleged in the indictment and assessed punishment against appellant at confinement for a term of twenty-five years. This appeal followed.

AnalysisBy his sole issue on appeal, appellant contends the trial court abused its discretion by failing to instruct the jury on the lesser-included offense of manslaughter, thereby denying appellant due process and equal protection of the law. We find appellant was not entitled to a manslaughter instruction.   

          If facts are elicited during trial that raise an issue of a lesser-included offense and a charge is properly requested, then a charge on the issue must be given. Ross v. State, 861 S.W.2d 870, 877 (Tex.Crim.App. 1992). The Court of Criminal Appeals has established a two-pronged test to determine whether a defendant is entitled to a charge on a lesser-included offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997); Aevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997); Royster v. State, 622 S.W.2d 442 (Tex.Crim.App. 1981). See also Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007) (applying test); Baca v. State, 223 S.W.3d 478, 480 (Tex.App.–Amarillo 2006, no pet.). First, the lesser-included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Skinner, 956 S.W.2d at 543, citing Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). See also Hall, 225 S.W.3d at 535-36; Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998). 

          In deciding whether the issue of a lesser-included offense is raised, we look to all the evidence presented at trial. Havard v. State, 800 S.W.2d 195, 216 (Tex.Crim.App. 1989); Grotti v. State, 209 S.W.3d 747, 773 (Tex.App.–Fort Worth 2006), aff’d, 2008 WL 2512832 (Tex.Crim.App. 2008). The credibility of the evidence and whether it is controverted or conflicts with other evidence may not be considered. Havard, 800 S.W.2d at 216. Furthermore, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Skinner, 956 S.W.2d at 543. Rather, there must be some evidence directly germane to a lesser-included offense for the fact-finder to consider before an instruction on a lesser-included offense is warranted. Id. The defendant's testimony alone may be sufficient to raise the issue of a lesser-included offense. Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App. 1984).         

          The parties agree the first prong of the test is satisfied. The indictment charged appellant with murder as defined in § 19.02(b)(1) of the Penal Code, requiring proof that he intentionally or knowingly caused Avila’s death. Appellant could have been convicted of manslaughter on proof that he recklessly caused Avila’s death. See Tex. Penal Code Ann. § 19.04 (Vernon 2003) (defining manslaughter). Manslaughter thus was a lesser-included offense of the charged murder. See Tex. Code Crim. Proc. Ann. art. 37.09(3) (Vernon 2006) (offense is lesser-included offense if, inter alia, it differs from offense charged only in respect that a less culpable mental state suffices to establish its commission); Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003) (voluntary manslaughter is lesser-included offense of murder under Code of Criminal Procedure article 37.09(3)).

           Appellant testified that at closing time, he left the bar behind his friend. The bar’s doorway was crowded with patrons leaving the bar. He saw the altercation between his friend and the victim. He testified that he was sensitive to such situations because he and his brother had been injured in a bar assault in 2003. As he was leaving the bar, someone hit him in the back, causing him to fall to one knee. He was punched in the forehead and the back of his head and was kicked in the buttocks. His sunglasses were knocked off the back of his head and his medallion was broken and ripped off his neck. He “panicked” and reached for and opened his pocket knife. He testified that when he took the knife out he “was scared. [He] didn’t know what was going on. [He] didn’t know what was happening to [his] friend. [He] didn’t know what was going to happen to [him].” He yelled out twice “get away, I have a knife” and swung the knife fast, making contact. He testified that while he knew the knife was making contact, he “didn’t think it was that bad.”

          Appellant further testified that at some point, he realized he was struggling with the victim. The victim was pushing him down and hitting him in the back of his head. Appellant continued his erratic movements with the knife until he felt blood on him. He saw the victim holding his neck, realized that he injured the victim, and pushed away. Later in his testimony, appellant characterized the stabbing as “an accident,” then said he “was just trying to protect myself.”  

          Application of the second prong of the test requires that there exist in the record some evidence that appellant was reckless in causing the death of the victim, but did not act intentionally or knowingly. See Adanandus v. State, 866 S.W.2d 210, 232 (Tex.Crim.App. 1993) (applying second prong analysis). Section 6.03(c) of the Texas Penal Code provides that a person's conduct is reckless when he “is aware of but consciously disregards a substantial and unjustifiable risk . . . the result will occur.” Tex. Penal Code Ann. § 6.03(c)               (Vernon 2003). In contrast, one acts intentionally “when it is his conscious objective or desire to engage in the conduct or cause the result” or knowingly “when he is aware that his conduct is reasonably certain to cause the result.” Id. In other words, for appellant to receive an instruction on the lesser included offense of manslaughter, a rational jury must be able to find that appellant behaved in such a way that he consciously disregarded a substantial and unjustifiable risk toward the victim, but was not aware that his conduct was reasonably certain to cause the victim's death. Id.; Chavez v. State, No. 07-03-0509-CR, 2005 WL 1403992 (Tex.App.–Amarillo June 15, 2005, no pet.) (mem. op., not designated for publication).

          Appellant points to his statement that the stabbing was “an accident.” In determining whether there is evidence to support a requested recklessness charge, courts have found a statement that a defendant did not intend to kill the victim “cannot be plucked out of the record and examined in a vacuum.” Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986); see Martinez, 16 S.W.3d at 847. Neither is appellant’s statement that the stabbing “was an accident” properly plucked from the record and examined in a vacuum. Viewed in context, we do not agree it provides evidence appellant was aware of but consciously disregarded a substantial and unjustifiable risk that his actions would result in Avila’s death. In response to the very next question, appellant asserted he “was just trying to protect myself,” returning to his consistent theme that he was responding to the attacks on him, and was acting in fear of his life.  

          Moreover, this court and others have held that the justification of self-defense is inconsistent with a claim that the defendant acted only recklessly. See Chavez v. State, 2005 WL 1403992 at *2, citing Martinez v. State, 16 S.W.3d 845, 848 (Tex.App.–Houston [1^st Dist.] 2000, pet. ref’d]); Johnson v. State, 915 S.W.2d 653, 659 (Tex.App.–Houston [14^th Dist.] 1996, pet. ref’d) (all holding “one cannot accidentally or recklessly act in self-defense”); accord, Avila v. State, 954 S.W.2d 830, 843 (Tex.App.–El Paso 1997, pet. ref’d) (holding defendant’s testimony he acted in self-defense precluded an instruction on reckless discharge of weapon). We find that holding applicable here.

          As did the defendant in Chavez, 2005 WL 1403992 at *2, appellant here relies on O’Brien v. State, 89 S.W.3d 752 (Tex.App.–Houston [1^st Dist.] 2002, pet. ref’d). There, the defendant intentionally aimed a gun at the victim in self-defense but was struck over the head with a board, causing him to clench and fire the gun accidentally. Id. at 755-56. The court determined the evidence was sufficient to suggest the defendant recklessly caused the death of the victim and entitled him to an instruction on the lesser offense of involuntary manslaughter. Id. O’Brien is of the category of cases that involve evidence a weapon accidentally discharged. See, e.g., Hayes v. State, 728 S.W.2d 804, 809-10 (Tex.Crim.App. 1987), cited in Johnson, 915 S.W.2d at 659. This is not such a case, and O’Brien is inapposite.  

          For these reasons, we find the second prong of the test is not satisfied. The trial court did not err in refusing to instruct the jury on the lesser included offense of manslaughter. Accordingly, we overrule appellant’s issue on appeal, and affirm his conviction and sentence.

                                                                James T. Campbell

                                                                         Justice

Publish.  

pan>Do you speak English?

          A:                             No.

          The Court:               Do you understand English when it’s spoken to you?

          A:                             A little.

The Court:A little. Okay. Do you recall whether anyone asked you for your driver’s license?

          A:                             No.

          The Court:               Are you a U.S. citizen?

          A:                             No.

          The Court:               Of what country are you a citizen?

          A:                             San Luis Potosi.

          The Court:               Is this a city?

          A:                             Yes.

          The Court:               In which country?

          A:                             Rio Verde, San Luis Potosi.

          The State contends neither issue is preserved for our review because no objection was made at the time of the questioning. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific ground for the desired ruling if the specific grounds are not apparent from the context. Tex. R. App. P. 33.1; Moreno v. State, 900 S.W.2d 357, 360 (Tex.App.–Texarkana 1995, no writ). Where no objection is made, remarks and conduct of the court may not be subsequently challenged unless they constitute fundamental error because they impugn the presumption of innocence, deny the defendant a fair and impartial jurist or have similar effect. Moreno, 900 S.W.2d at 359, citing Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978) (panel op.); Oulare v. State, 76 S.W.3d 231, 234 (Tex.App.–Amarillo 2002, no pet.) (recognizing requirement to object is applicable to remarks and conduct of the court). See also Blue v. State, 41 S.W.3d 129, 138 (Tex.Crim.App. 2000) (plurality op.).

          Due process under both the United States and Texas constitutions requires a neutral and detached hearing body or officer. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d 656 (1973); Earley v. State, 855 S.W.2d 260, 262 (Tex.App.–Corpus Christi 1993), pet. dism’d as improvidently granted, 872 S.W.2d 758 (Tex.Crim.App. 1994); accord, Brumit v. State, 206 S.W.3d 639, 645 (Tex.Crim.App. 2006). See also Blue, 41 S.W.3d at 138 (Keasler, J., concurring) (right to impartial judge is absolute right). A reviewing court presumes the trial court was neutral and detached absent a clear showing to the contrary. Brumit, 206 S.W.3d at 645; Fielding v. State, 719 S.W.2d 361, 366 (Tex.App.–Dallas 1986, pet. ref’d). A trial judge is permitted to question a witness when seeking information, clarifying a point, or to obtain a clearer idea of the merits of the case. Moreno, 900 S.W.2d at 359; Burks v. State, 693 S.W.2d 747, 750 (Tex.App.–Houston [14^th Dist.] 1985, pet. ref’d). In bench trials, courts may go beyond asking for mere clarification and ask questions that an advocate might ask in order to assist the fact-finding process. Moreno, 900 S.W.2d at 359. Even so, a court must avoid becoming involved as an advocate to the extent that it cannot make an objective finding of fact in the case. Id. at 360.

          Here, the judge’s questions were posed during a hearing on a suppression motion. No jury was present. The nature of the questions focused on clarifying the circumstances of the officer’s detention of appellant and determining how much of the English language appellant understood. The questions by the judge did not taint the presumption of innocence or deprive appellant of an unbiased judge or tribunal. Because the questions did not rise to the level of fundamental error, appellant was obligated to object at trial to preserve the error for appeal. See Oulare, 76 S.W.3d at 234, citing Brewer, 572 S.W.2d at 721. He did not do so and therefore has presented nothing for our review on these points.

          Even if we consider appellant’s points, we find no abuse of discretion. Appellant contends on appeal that by engaging in the questioning of the officer, the judge became an advocate for the prosecution and assisted the State in satisfying its burden. With regard to the court’s questions to appellant, he argues there is no authority that permits the “trial judge to pry into the background” of a defendant during a motion to suppress. The State argues the court acted properly, particularly because courts in bench trials have more latitude in questioning witnesses because there is no risk of improperly influencing the jury. Navarro v. State, 477 S.W.2d 291, 292 (Tex.Crim.App. 1972); Moreno, 900 S.W.2d at 359. We agree with the State’s position.

          When reviewing complaints about the trial judge’s questioning of a witness, we apply an abuse of discretion standard. Born v. Virginia City Dance Hall and Saloon, 857 S.W.2d 951, 957 (Tex.App.–Houston [14^th Dist.] 1993, writ denied). As noted, in criminal cases, the trial judge is permitted to question a witness when seeking information only, to clarify a point, or to ask the witness to repeat something the judge could not hear. Moreno, 900 S.W.2d at 360. Judges are permitted more leeway when no jury is present. Id. See also Silva v. State, 635 S.W.2d 775, 778 (Tex.App.–Corpus Christi 1982, writ ref’d). Here, the trial court’s questions, both those asked of the officer and those asked of appellant, were within those categories. The record certainly does not indicate the trial judge abandoned his neutral and detached role.

          On our review of appellant’s complaints, we find no abuse of discretion. We overrule appellant’s second and third issues. 

Comment on the Evidence

          In appellant’s last issue, he asserts the trial court erred in taking judicial notice of the meaning of the Spanish word “aqui.” The State asked appellant’s brother the question “[a]nd is the Spanish term for “here” “aqui”? When no verbal response was received, the prosecutor asked the court to take judicial notice of the fact the Spanish term for “here” is “aqui.” The court did so. Appellant did not object at the time the trial court took judicial notice that “aqui” meant “here” nor did appellant object at any time when testimony was offered that “aqui” meant “here.” Appellant’s third issue thus was not preserved for appellate review. Tex. R. App. P. 33.1(a)(1); see Tex. R. Evid. 201(e) (“[a] party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken”). See also Goad v. Goad, 768 S.W.2d 356, 359 (Tex.App.–Texarkana 1989, writ denied), cert. denied, 493 U.S. 1021, 110 S. Ct. 722, 107 L. Ed. 2d 742 (1990) (finding complaint concerning judicial notice waived absent objection). Accordingly, we overrule appellant’s last issue.

          Having overruled each of appellant’s four issues, we affirm the judgment of the trial court.

                                                                           James T. Campbell

                                                                                    Justice

Do not publish.