Michael A. Rivas v. State

ACCEPTED
04-14-00181-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/7/2015 3:14:22 PM
KEITH HOTTLE
CLERK
NO. 04-14-00181-CR
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
FOR THE FOURTH JUDICIAL DISTRICT SAN ANTONIO, TEXAS
SAN ANTONIO, BEXAR COUNTY, TEXAS 5/7/2015 3:14:22 PM
KEITH E. HOTTLE
Clerk
MICHAEL RIVAS
APPELLANT
VS.
STATE OF TEXAS,
APPELLEE
APPEAL FROM THE 38TH JUDICIAL DISTRICT COURT
OF MEDINA COUNTY, TEXAS, CAUSE NO. 12-04-10954-CR
THE HONORABLE CAMILE G. DUBOSE, PRESIDING
BRIEF OF APPELLEE, STATE OF TEXAS
Submitted by:
DANIEL J. KINDRED
38TH JUDICIAL DISTRICT ATTORNEY
MEDINA COUNTY, TEXAS
3102 Avenue G
Hondo, Texas 78861
Telephone: (830) 741-6188
Facsimile: (830) 741-6033
By: /s/ Christina Busbee
CHRISTINA BUSBEE
State Bar No. 00797819
ASSISTANT DISTRICT ATTORNEY
ORAL ARGUMENT NOT REQUESTED
i
IDENTIFY OF THE PARTIES AND COUNSEL
The following is a complete list of all parties at the trial court as well as the names of all
trial and appellate counsel.
Parties
Appellant Appellee
MICHAEL RIVAS STATE OF TEXAS
Trial Counsel
Honorable Edward F. Shaughnessy, III Honorable Daniel J. Kindred
State Bar No. 18134500 38th Judicial District Attorney
Attorney at Law State Bar No. 24010682
206 East Locust Honorable Christina Busbee
San Antonio, Texas 78212 Assistant District Attorney
Border Prosecutor
State Bar No. 00797819
ATTORNEY FOR DEFENDANT 3102 Avenue G
Hondo, Texas 78861
Honorable Mark D. Kimball
Regional 2 Counsel
Border Prosecution Unit
State Bar No. 11418030
1901 Bob Bullock Loop
Laredo, Texas 78043
ATTORNEYS FOR STATE
Appellate Counsel
Honorable Michael C. Gross Honorable Daniel J. Kindred
State Bar No. 08534480 State Bar No. 24010682
Gross & Esparza, P.L.L.C. 38th Judicial District Attorney
106 South St. Mary’s Street, Suite 260 Honorable Christina Busbee
San Antonio, Texas 78205 State Bar No. 00797819
Assistant District Attorney
Border Prosecutor
ATTORNEY FOR APPELANT 3102 Avenue G
Hondo, Texas 78861
ATTORNEYS FOR APPELLEE
ii
TABLE OF CONTENTS
PAGE
PARTIES …………………………………………………………………………………………ii
TABLE OF CONTENTS…………………………………………………………………...……iii
INDEX OF AUTHORITIES………………………..……………………………………………iv
STATEMENT OF THE CASE………………………...……………………………………..…...1
ISSUES PRESENTED…………………………………..……………………………………......2
STATEMENTS OF FACTS………………………………………………………………………2
SUMMARY OF THE ARGUMENT……………………………………………………..……..10
.
ARGUMENT AND AUTHORITIES……………………………………………………………12
ISSUE NUMBER ONE………………………………………………………………….………12
THE TRIAL COURT DID NOT ERR IN ITS CHARGE TO THE
JURY IN APPLYING THE LAW OF SELF-DEFENSE
ISSUE NUMBER TWO……………………………………………………………………..…..17
THE TRIAL COURT DID NOT ERR IN ITS CHARGE TO THE
JURY IN ITS APPLICATION OF THE LAW OF PARTIES
ISSUE NUMBER THREE………………………………………………………………...…….22
THE TRIAL COURT DID NOT ERR IN ASSESSING ATTORNEY’S
FEES TO THE JUDGMENTS IN THAT THE JUDGMENTS
WERE TO REFLECT THAT TIME AND MONEY WERE TO RUN
CONCURRENTLY
PRAYER…………………………………………………..……………………………………..23
CERTIFICATE OF SERVICE…………………………….…………………………………….24
iii
INDEX OF AUTHORITIES
STATE CASE LAW Page
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) 12, 21
Barrera v. State, 951 S.W.2d at 153, 156 (Tex. App. – Corpus Christi 1997) 13, 14
Barrera v. State, 982 S.W.2d 415 (Tex. Crim. App. 1998) 12, 13-14, 17
Barrera v. State, 10 S.W.3d 743, 745 (Tex. App. – Corpus Christi 2000, no pet.) 13, 16-17
Greene v. State, 240 S.W.3d 7, 15 (Tex. App. – Austin 2007, no pet.) 13
Jaycon v. State, 651 S.W.2d 803 (Tex. Crim. App. 1983) 19-20
Jones v. State, 815 S.W.2d 667, 670 (Tex. Crim. App. 1991) 13
Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) 20
Linden v. State, 347 S.W.3d 819, 823 (Tex App. – Corpus Christi 2011, pet. ref’d) 17
Mann v. State, 964 S.W.2d 639, 642 (Tex. Crim. App. 1998) 18
Marvis v. State, 36 S.W.3d 878, 880 (Tex. Crim. App. 2001) 18
Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) 13, 22
Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) 21
Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) 21
Vega v. State, 394 S.W.3d 514, 516 (Tex. Crim. App. 2013) 12
Vogt v. State, 421 S.W.3d 233, 239 (Tex. App. – San Antonio, 2013, no pet. h.) 17-18, 20-22
Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013) 22-23
STATE STATUTUES
Tex. Penal Code Ann. § 2.03 (c) (Vernon 2011) 12
Tex. Penal Code Ann. § 2.03 (d) (Vernon 2011) 12, 15
Tex. Penal Code Ann. §7.01(a) (Vernon 2011) 20
iv
Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2011) 20
Tex. Penal Code Ann. § 9.31 (Vernon 2011) 15
Code Crim. Proc. Ann. art. 26.05(g) (Vernon 2011) 22
v
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to the Texas Rules of Appellate Procedure, the Appellee does not request oral
argument in this case.
STATEMENT OF THE CASE
The Appellant was indicted on or about April 10, 2012, in Cause Number 12-04-10956-
CR with the offense of murder and in Cause No. 12-04-10957-CR with the offense of aggravated
assault with a deadly weapon alleged to have occurred on the 15th day of October 2011 (I C.R. at
30, 11). The appellant was indicted on May 7, 2012 in Cause No. 12-04-10994-CR with the
offense of criminal conspiracy alleged to have occurred on the 15th day of October 2011 (I C.R at
110). These indictments were consolidated by the trial court on June 6, 2013 (I C.R. at 30). The
Appellant was consolidated for trial with the co-defendant, Leonardo Rivas, on August 6, 2013,
under Cause No. 12-04-10954-CR (I C.R. at 113). The Appellant was tried on all three
indictments beginning on January 13, 2014, before a jury (IV R.R. at 1). On January 22, 2014,
the jury returned a verdict of guilty on all three indictments (I C.R. at 507-50, IX R.R. at 77-78).
On January 23, 2014, the jury assessed punishment of life in the Texas Department of
Corrections on the murder charge, the aggravated assault with deadly weapon charge and the
criminal conspiracy charge. No fine was assessed by the jury (I C.R. at 519-520, X R.R. at 35-
38).
A motion for new trial was filed by the appellant on February 13, 2014, and was
overruled by the trial court on March 3, 2014, in each case. (II C.R. 564-569). Notice of appeal
was timely filed (II C.R. at 546-548).
1
ISSUES PRESENTED
ISSUE NUMBER ONE…………………………………………………………………………14
THE TRIAL COURT DID NOT ERR IN ITS CHARGE TO THE
JURY IN APPLYING THE LAW OF SELF-DEFENSE
ISSUE NUMBER TWO………………………………………………………………………..21
THE TRIAL COURT DID NOT ERR IN ITS CHARGE TO THE
JURY IN ITS APPLICATION OF THE LAW OF PARTIES
ISSUE NUMBER THREE…………………………………………………………………….27
THE TRIAL COURT DID NOT ERR IN ASSESSING ATTORNEY’S
FEES TO THE JUDGMENTS IN THAT THE JUDGMENTS WERE TO
REFLECT THAT TIME AND MONEY WERE TO RUN CONCURRENTLY
STATEMENT OF FACTS
On or about October 14, 2011, the appellant, Michael “Mikeo” Rivas, his brother, Leonardo
“Lenny” Rivas, and Adriana Benavides were hanging out together that day in Adriana’s parents’
black Expedition. Appellant had only been out of the Texas Department of Corrections
Substance Abuse Facility for three (3) days and Leonard Rivas was on pre-trial release for a
charge of manufacture delivery of a controlled substance, 4-200 grams by the 38th Judicial
District Court (VIII R. R. at 20-21, IX R. R. at 114-119, XII). On October 14, 2011, Johnny Joe
Flores, Margie Gonzales and Janie Aguilar began a 2:00 p.m. to 1:00 a.m. shift at Villa’s
Restaurant in Hondo, Texas (IV R. R. at 28, 155, VII R. R. at 143). Leonardo Rivas, Adrianna
Benavides and the appellant had dinner at Villa’s restaurant at approximately 5:30 p.m. (IV R.
R. at 45, 163, 197, VII R. R. at 211). Later on October 14, 2011, Leonardo Rivas, Adriana
Benavides and appellant went to H.E.B. to buy some beer and then they went to a birthday party
at 2300 Cedar Street in Hondo, Texas (VII R. R. at 5-11, 212-213). While at the party on Cedar
Street, the appellant and Adriana Benavides received calls and text messages from Eusebio
2
“Chevio” Luna (VII R. R. at 10, 214-215). Eusebio “Chevio” Luna was a member of the
Mexican Mafia (VI R. R. at 194). Chevio wanted to talk to Adriana Benavides and appellant
about cocaine that Chevio believed had been stolen by Adriana (VII R. R. at 10, 222). Adriana
Benavides and appellant left the party on Cedar Street and along, with Adrienne Lopez, drove in
the black Expedition to a park on 18th Street in Hondo, Texas, to meet with Chevio Luna (VII R.
R. at 12-13, 222). This park was right across the street from a house that belonged to Armando
Garcia. When they arrived there were a number of people outside of the house across the street
from the park (VII R. R. at 13). It was common knowledge that a number of people lived at the
house on 18th Street across from the park and that a number of people congregated there (VIII R.
R. at 11-12, 110-111). Standing outside of the house when Adriana Benavides, Adrienne Lopez
and the appellant arrived was Chevio Luna. When they arrived at the park on 18th street,
Adrienne Lopez got off the Expedition and went across the street inside the house (VII R. R. at
13, 17). At first, Chevio and the appellant engaged in an argument, but at some point the
argument ceased and the parties looked like they were shaking hands (VII R. R. at 14-15). At
that point, Adriana Benavides exited the vehicle (VIII R. R. at 111). After that, a white van
drove up and the victim, Felix “Chape” Flores, got off the van (VII R. R. at 40). Chape was seen
to have something behind his back and in his hand (VII R. R. at 40). Appellant stepped back
from Chape, but then stepped forward and started fighting (VII R. R. at 16). A fight ensued
between Felix Flores and the appellant and a number of additional males. Appellant punched
Felix Flores and knocked him down (VII R. R. at 16, VIII R. R. at 34). After the fight was over,
appellant took off running down 18th street and Adriana Benavides got back into the Expedition,
drove after the appellant and picked him up about a block away from the location of the fight
(VII R. R. at 17, 44). Adrienne Lopez stayed at the house on 18th Street, intoxicated and
3
throwing up (VII R. R. at 112). When Adriana Benavides and the appellant were leaving 18th
Street, the white van driven by Felix Flores followed them for about a block (VII R. R. at 44,
90). The appellant got back into the black Expedition with Adriana Benavides and went back to
the party on Cedar Street (VII R. R. at 18, VIII R. R. at 111-112). Appellant did not have any
injuries that required medical attention and he was laughing about his injuries (VII R. R. at 94).
Adriana Benavides and the appellant waited at the party on Cedar Street until Leonardo Rivas
returned to the party (VII R. R. at 19). Once Leonardo Rivas returned to the party on Cedar
Street, appellant told him about the fight on 18th Street (VI R. R. at 227-229). Appellant told
Leonardo “If you’re down to roll, let’s ride.” At first, Leonardo Rivas told the appellant “No”
(VI R. R. at 264-265). Leonardo Rivas was heard telling the appellant, “Fuck them. I already
told these mother fuckers they are not going to fuck with us. Fuck that bro, Fuck that shit. I am
tired of their shit” (VI R. R. at 228, 265-266). Appellant told Leonardo Rivas “Fuck that. Let’s
go get them” (VI R. R. at 266). Immediately before Leonardo Rivas, Adriana Benavides and the
appellant departed the party on Cedar Street, the gun was heard to have been “racked” (by
pulling back the chamber of the gun) (VI R. R. at 253). Leonardo Rivas was seen to retrieve the
gun and the appellant was also seen with the gun (VI R. at 253, VII R. R. at 20). When they
drove off around 1:00 a.m. on October 15, 2011, from Cedar Street, Adriana Benavides was in
the driver’s seat, but the parties stopped the vehicle and switched seats so that the appellant was
driving while Adriana Benavides was in the rear passenger seat (VI R. R. at 254, VII R. R. at
21). Leonardo Rivas was in the front passenger seat (VI R. R. at 255). After leaving Cedar
Street, Leonardo Rivas, Adriana Benavides and the appellant drove down 11th Street where they
saw a police officer. The appellant pulled into a driveway and Adriana Benavides got off the car
and pretended to be visiting someone at a house on 11th Street in an effort to evade the police and
4
to appear as if they were not engaged in any type of criminal activity (VII R. R. at 22-24, 246,
VIII R. R. at 14). While they were stopped at this residence, Leonardo Rivas told the appellant,
“I’m going to make you a believer” (VII R. R. at 22). Later on before arriving at 1406 12th
Street, Leonardo Rivas told the appellant that he “might know where the guy (Felix Flores)
would be” (VII R. R. at 91).
At approximately 12:45 a.m. on October 15, 2011, Felix Flores went to Villa’s restaurant and
had a brief conversation with his brother Johnny Joe Flores who was about to end his shift. Felix
Flores was supposed to go get cigarettes and then meet his brother, Johnny Joe Flores, his sister-
in-law, Margie Gonzales, and Felix’s girlfriend, Janie Aguilar, back at their house at 1406 12th
Street (IV R. R. at 29-30, 87, 156, 182, VII R. R. at 143). Johnny Joe Flores and Margie
Gonzales had lived at 1406 12th Street in Hondo, Texas, for 9 years (IV R. R. at 34). Felix Flores
arrived at 1406 12th Street at approximately 1:15 a.m. (IV R. R. at 62, VII R. R. at 145). When
he arrived, he had a bump on the top of his right eye that had not been there earlier when he had
come by the restaurant (IV R. R. at 33, 58-59,162, 183, V R. R. at 15, VI R. R. at 145, VII R. R.
at 188). At the time Felix Flores arrived at 1406 12th Street, Johnny Joe Flores, Margie Gonzales
and Janie Aguilar were unwinding after work. They were eating tacos that they had brought
home and were resting on a cement slab right outside of their mobile home (IV R. R. at 32, 157,
VII R. R at 144). Margie Gonzales had also brought a taco for Felix to eat and had given it to
him (IV R. R. at 162, 187). Felix told Johnny Joe Flores, Janie Aguilar and Margie Gonzales
about the previous altercation on 18th Street whereat he said that he had been “jumped.” Felix
never expressed any intention of extracting revenge on Leonardo Rivas or the appellant (IV R. R.
at 87, 90, 187, 204, 211, VII R. R. at 190-191). Felix Flores was at 1406 12th Street for
approximately ten minutes eating his taco when Leonardo Rivas, the appellant and Adrianna
5
Benavides drove up in the black Expedition (IV R. R. at 35, VII R. R. at 151). The appellant was
still in the driver’s seat, Leonardo Rivas was in the front passenger seat and Adrianna Benavides
in the back passenger seat (IV R. R. at 36.) The appellant stopped the black Expedition three to
four feet short of the stop sign in front of the mobile home and parked close to the property line
(IV R. R. at 35-36, 64, 188). At the time the appellant drove up to 1406 12th Street, the victims,
including Felix Flores, were approximately 11 feet from the property line, inside of their yard
standing and sitting on the concrete slab eating their tacos (IV R. R. at 64, 162, 211, VI R. R. at
167). When the black Expedition drove up, a male voice was heard saying “That’s him” (IV R.
R. at 97, 190) Upon seeing the appellant and Leonardo Rivas, Felix Flores said to his brother
“That’s them,” put his hands up in the air and yelled in Spanish “Que Onda” which means
“what’s up” and then took approximately two and a half steps (IV R. R. at 36-37, 68-69, 166,
190, VII R. R. at 26, 52, 147, 150-151). Leonardo Rivas then pretended like he was going to
open the door of the vehicle, but instead started firing a weapon outside of the Expedition at
Felix Flores (IV R. R. at 36, 167, 192-193, VII R. R. at 27, 149, 185, VIII R. R. at 78). Felix
Flores was shot nine (9) times where he stood and fell to the ground near the concrete slab close
the mobile home (IV R. R. at 38, 80, 193, 247, VI R. R at 86, VII R. R. at 52). During the
shooting, Johnny Joe Flores pushed his wife Margie Gonzales out of the way and was shot in his
upper right thigh (IV R. R. at 38, 40). Leonardo Rivas and the appellant testified that Leonardo
was the sole shooter, however, other witnesses testified that they believed at some point the
Leonardo stopped shooting, the appellant grabbed the gun and reinitiated the shooting (IV R. R.
at 39, 172-173, 194-195, VII R. R. at 50, 149, 169, 192). Janie Aguilar ran to the side of Felix
Flores’s white van to hide (IV R. R. at 40, VII R. R. at 152). At the time of the shooting, three
sons of Johnny Joe Flores and Margie Gonzales were inside of the mobile home along with their
6
four grandchildren (IV R. R. at 40, 159). Felix Flores was unarmed at the time of the shooting,
as were the other victims. There were no weapons found at the crime scene (IV R. R. at 42, 169-
171, 227, 234-235, V R. R. at 113, 128-129, VI R. R. at 12-13, 36, 103-104, 148-149, VII R. R.
at 27, 30, 53, 148, 150). Felix Flores never traveled from where he was standing to where the
Expedition was parked (IV R. R. at 207, VII R. R. at 51, 56-57, 150, 154, 195). There were no
blood drops from the location where Felix Flores fell after being shot to the location where the
Expedition was parked (V at R. R. at 91, 132, VI R. R. at 37, 103, 148). The witnesses testified
that Felix Flores never struck anyone in the Expedition either with a weapon or with his fists (IV
R. R. at 118, 169, VII R. R. at 31, 51). Johnny Joe Flores never made advances toward the
vehicle and was shot when he was pushing his wife out of the line of fire (IV R. R. at 136, 169-
170). Felix Flores suffered nine gunshot wounds, the majority of which were at the chest area
(IV R. R. at 10, 12, VII R. R. at 27, 52). Johnny Joe Flores suffered a gunshot to his leg, one
bullet went through the vehicle parked at the residence and one bullet went through the
children’s bedroom (IV R. R. at 42, 44).
Leonardo Rivas testified at the time the Expedition stopped at the stop sign in front of 1406
12th Street, Felix Flores approached his side of the vehicle and was swinging at him with his
right hand and that somehow appellant was stabbed in his left hand (VIII R. R. at 51-52). Felix
Flores was left handed (IX R. R. at 14).
After the shooting, Leonardo Rivas and the appellant drove to Leonardo’s mobile home on
11th Street. Appellant and Leonardo Rivas exited the Expedition, hugged each other and then ran
off in different directions (VII R. R. at 243). Appellant told Adriana Benavides to drive off and
she refused to do it. It was only after Leonardo and the appellant ran off did she get back into the
Expedition and then drove to her home (VII R. R. at 29). At all times, Adriana Benavides was
7
with the Leonardo Rivas and the appellant of her own free will and never made any attempt to
get away (VII R. R. at 50).
The first Hondo Police officer to arrive on the scene was Ramiro Guedea, followed by
Officer Brandon Teer, Officer John Dunkley, Sergeant Brian Valenzuela and Detective
Sergeants Rick Garza and Jo Ann Evans (V R. R. at 86-87, 126, VI R. R. at 6-11, 144). The
evidence revealed that casings to the weapon were found on the roadway in a location that would
have been outside and to the right of the vehicle of where it had been parked (VI R. R. at 53, 54,
100-101). The distance from the concrete slab were the victims were standing and sitting at the
time of the shooting to where the casings were located was approximately six feet to eleven feet
(VI R. R at 100, 167). Officer John Dunkley was concerned that the casings would be disrupted
when the EMS ambulance pulled up in front of the mobile home; consequently, Sergeant
Valenzuela told Officer Dunkley to pick up some of the casings and then he told Sergeant Evans
where they had been located (VI R. R. at 11, 53). There was no evidence found in the black
Expedition that either Leonardo Rivas or the appellant had been injured or assaulted in any way.
Nor was there any evidence of blood of the victim in the Expedition, despite the contention of
Leonardo Rivas that Felix Flores was right up against the passenger side window when Leonardo
shot him (VI R. R. at 153, VIII R. R. at 77). Leonardo Rivas was apprehended in Bexar County
on October 19, 2011. At the time of his arrest in Bexar County, there were no injuries to his
body, other than a small abrasion on the inside of his left hand (VI R. R. at 159-160). The
appellant was apprehended on October 22, 2014, in Bexar County (VI R. R. at 161). At the time
of his arrest, appellant had no injuries to his body other than a small abrasion to the back of head
and a scratch on his chest (VI R. R. at 163-165).
8
The appellant testified that he had only been out of the Texas Department of Corrections
Substance Abuse Facility for three (3) days when this incident occurred (VIII R. R. at 20-21).
He also testified that he was previously a member of the Mexican Mafia until he was kicked out
(VII R. R at 215-216). He testified that Leonardo Rivas fired the shots at the house at 1406 12th
Street (VII R. R. at 240). The appellant testified that he never sought any medical attention for
any injuries he suffered as a result of the altercation at 18th Street (VII R. R. at 245). The
appellant referred to the victim, Felix Flores, as just “another civilian” and the victim, Johnny
Joe Flores, as an “innocent bystander” (VII R. R. at 225, 245). The appellant gave inconsistent
testimony as to who came up to the Expedition when it parked at the house at 1406 12th Street
(VII R. R. at 257). He could not testify that Felix Flores had anything in his hand when he
approached the vehicle, if he was swinging in the vehicle or if he even said anything (VII R. R.
at 258).
Leonardo Rivas testified that he was at the party at Cedar Street with the appellant on
October 14, 2011, and that at some point the appellant left with Adriana Benavides (VIII R. R at
47-48). When the appellant returned, he appeared to have been injured and Leonardo wanted to
go to his sister’s house which is also on Cedar Street to get appellant bandages (VIII R. R. at 49).
Instead, they got into the black Expedition and took off driving. Leonardo Rivas testified that
the appellant did not want to go to Leonardo’s house on 10th Street (VIII R. R. at 50). At some
point while they were driving around, they stopped at the victims’ house at 1406 12th Street and
that is when Felix Flores approached the Expedition and started swinging at Leonardo Rivas
(VIII R. R. at 51-52). Because Felix Flores was swinging at him, Leonardo grabbed his handgun
which was between the seat and the console and began shooting at Felix Flores (VIII R. R. at 52-
54). Leonardo also testified that he put the weapon outside of the window to shoot Felix Flores
9
(VIII R. R. at 78). Leonardo Rivas testified that Felix Flores was right up against the vehicle
when Leonardo shot him (VIII R. R. at 77). Leonardo admitted to carrying a gun constantly
despite not having a concealed hand gun license (VIII R. R. at 58).
The testimony of the medical examiner was that there were nine (9) gunshot wounds to Felix
Flores’s body. The fatal wound was gunshot “A” which was to his right ear, traveled down the
base of his skull and cut the spinal cord. This wound would have caused Felix Flores to drop to
the ground where he was standing and incapacitate him. Felix Flores would have been unable to
move after this wound (V R. R. at 16, 27, 45). There was no evidence of stripling on Felix
Flores (V R. R. at 18). Gunshot “A” was fired more than two to three feet away from the body
(V. R. R. at 41). Gunshot wound “G” entered Felix Flores’s body from the rear while he was
turning away from the shooter (V R. R. at 47). Felix Flores was 5’ 7”, weighed 315 pounds and
was considered morbidly obese (V R. R. at 20). At the time of death, he had a blood alcohol
level of .122 and had three prescription depressant drugs, methadone, tramadol, hydrocodone, in
his system. Felix Flores had previously had a botched hemorrhoid surgery sometime in 2011 and
an enlarged heart condition (IV R. R. at 113, 176, V R. R. at 20-21, 41, VII R. R. at 154-155).
The array of gun shots on his body would support the scenario that the shooter was sitting still
while the victim was turning around trying to avoid being shot (V R. R. at 32-33). The cause of
death was multiple gunshot wounds and the manner of death was homicide (V R. R at 50).
SUMMARY OF THE ARGUMENT
The issue of the existence of a defense is not submitted to the jury unless evidence is
admitted supporting the defense. Tex. Penal Code Ann. § 2.03 (c) (Vernon 2011). If the issue of
the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt
10
on the issue requires that the defendant be acquitted. Tex. Penal Code Ann. § 2.03 (d) (Vernon
2011).
In the instant case, the court’s charge first instructed the jury on murder and then
instructed the jury on the elements of self-defense and deadly force and contained an application
paragraph on the issue of self-defense. The court’s charge then instructed the jury in an
application paragraph on the issue of aggravated assault with a deadly weapon and included a
reference to the instructions regarding self-defense. The appellant objected to the language in
the original charge which may have been more appropriate than that contained in the court’s
final charge.
The record is clear that appellant relied on self-defense as a defensive theory at trial. The
state did not dispute the appellant’s application of the law, although the state did contest the
validity of the appellant’s defense. There is nothing in the record indicating that the jury was
misinformed or uninformed on the law of self-defense.
The appellant did not object to the court’s charge on the law of parties.
In the instant case, there was ample evidence to convict the defendant of murder and
aggravated assault with a deadly weapon under the law of parties. The evidence was that the
appellant got into an altercation with Felix Flores earlier in the evening, that he and his brother
drove around Felix Flores’s brother’s home that night, that they attempted to evade police when
they saw an officer in the area, that his brother had a gun in the Expedition, that the appellant
was the one driving the Expedition, that the co-defendant shot at Felix Flores and Johnny Joe
Flores and that the appellant picked up the gun and leaned over the co-defendant and also shot at
Felix Flores and Johnny Joe Flores. Additionally, there was evidence that the appellant fled the
scene of the crime and remained at large for one (1) week after the offense.
11
The definitions in the court’s charge did not mislead or confuse the jury as to their
responsibility. The jury charge properly instructed the jury regarding the appellant acting as a
party to the offense of murder and aggravated assault with a deadly weapon.
Appellee would request that this court modify that judgment to delete the assessment of
attorney’s fees in the judgment and order the district clerk to delete the attorney fees from the bill
of costs.
RELEVANT CASE LAW AND ARGUMENT
ISSUE NUMBER ONE
THE TRIAL COURT DID NOT ERR IN ITS CHARGE TO THE JURY
IN APPLYING THE LAW OF SELF-DEFENSE
ARGUMENT AND AUTHORITIES
The issue of the existence of a defense is not submitted to the jury unless evidence is
admitted supporting the defense. Tex. Penal Code Ann. § 2.03 (c) (Vernon 2011). If the issue of
the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt
on the issue requires that the defendant be acquitted. Tex. Penal Code Ann. § 2.03 (d) (Vernon
2011).
When the trial court includes in the charge a defensive issue, but fails to do so correctly,
this is charge error subject to review under Almanza. Vega v. State, 394 S.W.3d 514, 519 (Tex.
Crim. App. 2013) citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on
reh’g). If there was an objection in the trial court, reversal is required if the accused suffered
some harm. Id. If no proper objection was made at trial, a reversal is required only if the error
caused egregious harm. Id. However, failure to apply the law of a case to its facts does not
amount to a federal constitutional error, but is rather, a technical violation of state-law rule. See
Barrera v. State, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998) (en banc).
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A charge which fails to apply a theory of law to the facts of the case is insufficient to
authorize conviction on that theory. Jones v. State, 815 S.W.2d 667, 670 (Tex. Crim. App.
1991). This rationale is founded upon the notion that a charge which contains an abstract
paragraph on a theory of law, but does not apply the law of the facts, deprives the defendant of
“a fair and impartial trial.” Id. However, if the jury charge includes a reference in the application
paragraph to the abstract instruction then a conviction is authorized under the law. Greene v.
State, 240 S.W.3d 7, 15 (Tex. App. – Austin 2007, no pet.) citing Marvis v. State, 36 S.W.3d
878, 880 (Tex. Crim. App. 2001).
For example, in Greene v. State, the application paragraph did not explicitly apply the
abstract law to the facts of the case. Greene v. State, 240 S.W.3d at 15. Instead, it referred the
jury to the “foregoing instructions and definitions” and authorized appellant’s conviction for
capital murder if the jury found that appellant, “either acting alone or as a party” caused the
deaths in the course of the same criminal transaction. Id. The application paragraph of a jury
charge is that which authorizes conviction. Id. An abstract charge on a theory of law which is
not applied to that facts in insufficient to bring that theory to the jury. Id. It is error for a trial
court to instruct the jury on the law in the abstract portion of the charge but then fail to apply or
refer to the law in the application paragraph of the charge. Id. However, where the charge
includes abstract instructions on the law and the application paragraph incorporates those
instructions by reference then the jury is authorized to convict. Id.
When reviewing error in the charge, the courts consider 1) the charge; 2) the evidence; 3)
the arguments of counsel; and 4) any other relevant information from the record. Barrera v.
State, 10 S.W.3d 743, 745 (Tex. App. – Corpus Christi 2000, no pet.).
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In the instant case, the court’s charge first instructed the jury on murder and then
followed with the application paragraph for that offense that included the following language:
“If you do not find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you
will find the defendant not guilty” (II C.R. at 493-509). The court’s charge then instructed the
jury on the elements of self-defense and deadly force and contained an application paragraph on
the issue of self-defense (II C. R. at 496-499). The court’s charge then instructed the jury in an
application paragraph on the issue of aggravated assault with a deadly weapon and included a
reference to the “instructions above regarding self-defense” and it concluded with the
following statement: “…but if you do not so find, or if you have a reasonable doubt thereof, you
will acquit the defendant, and say by your verdict not guilty” (II C.R. at 499-500) (emphasis
added). The charge also included the following statements: 1) “The prosecution has the burden
of proving the defendant guilty, and it must do so by proving each and every element of the
offense charged beyond a reasonable doubt, and, if it fails to do so, you must acquit the
defendant.” 2) “In the event you have a reasonable doubt as to the defendant’s guilt after
considering all the evidence before you, and these instructions, you will acquit him and say by
your verdict ‘not guilty’.” (II C.R. at 504-505).
The instant case differs slightly from Barrera in that the trial court in Barrera failed to
provide an application paragraph on the law of self-defense and an instruction advising the jury
of the circumstances requiring a conviction or acquittal of the defendant (II C.R. at 493-509), See
Barrera v. State, 951 S.W.2d at 153, 156 (Tex. App. – Corpus Christi 1997) rev’d en banc, 982
S.W.2d 415 (Tex. Crim. App. 1998). As cited above, the court’s charge in the instant case did
contain an application paragraph on the law of self-defense (II C.R. at 501).
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There was also discussion between counsel during the charge negotiations about the
language in the court’s charge on the law of self-defense (VIII R. R. at 143-147, IX R. R. at 5-6,
21-22). Appellant objected to the original language in the court’s charge which read “Bearing in
mind, the foregoing instructions on the issue of deadly force in defense of person, you must find
that the Defendant Michael Rivas and/or Leonardo Rivas was not justified in using deadly force,
if any, against Felix Flores but if you do not so find or if you have a reasonable doubt, you will
acquit.” (VIII R.R. at 143-144). The prosecution argued that the state had to prove that defense
was not there beyond a reasonable doubt (VIII R.R. at 145-146). The appellant stated that he
thought there were “better ways of putting [the issue of reasonable doubt of the self-defense
requiring an acquittal]. (II C.R. at 145), Tex. Penal Code. Ann § 2.03(d) (Vernon 2011). The
trial court changed the language from “deadly force” to “self-defense” to correspond with Tex.
Penal Code § 9.31. Tex. Penal Code Ann. § 9.31 (Vernon 2011). The trial court later changed
the language of the self-defense application paragraph without an objection from appellant. In
fact, appellant seemed to acquiesce to the language that was finalized in the court’s charge in that
the court dictated the language in open court that she wanted in the charge (VIII R. R. at 5-6).
The court then instructed the state to print out the court’s charge and asked all counsel if there
was “anything else” to which appellant replied “Nothing from Michael Rivas, your honor.” Id.
The trial court again asked for any objections regarding the final version of the court’s charge to
which appellant replied “Not from Michael Rivas save and except for the ones that have already
been ruled on, Your Honor” (IX R. R. at 21-22). The court removed the original language of
§2.03(d) of the Texas Penal Code at the request of the appellant and the appellant did not later
request that the language be included into the charge.
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The instant case differs from Barrera and Jonas in that in the instant case the appellant
objected to the language in the original charge which may have been more appropriate than that
contained in the court’s final charge.
Additionally, it is clear from the record that appellant and the co-defendant relied on self-
defense as a defensive theory at trial (VII R.R. at 238-243, 257-259, VIII R.R. at 31-32, IX at 44-
46, 53), Barrera v. State, 10 S.W.3d 743, 745-746 (Tex. App. – Corpus Christi, no pet.). The
appellant asserted that he was justified in his involvement of the murder of Felix Flores and the
aggravated assault of Johnny Joe Flores because he was in an altercation earlier in the evening
with the deceased and other members of the Mexican Mafia. Additionally, when his brother,
Leonard Rivas, Adriana Benavides and he drove up to the deceased’s brother’s home and the
deceased came up and said something to his brother on the passenger side of the vehicle, his
brother, Leonardo Rivas, was justified in firing shots at the deceased. Id. In the appellant’s
closing argument, he urged self-defense. The state did not dispute the appellant’s application of
the law, although the state did contest the validity of the appellant’s defense. The appellant
argued “….under the law as the Judge has informed you, a person cannot claim self-defense or
deadly force in defense of person if they do what is called provoking the difficulty…When he
refused to carry out a green light on Anna Benavides, he was in violation of his agreement with
the Texas Mexican Mafia and the assault ensued, hence, he did not provoke the difficulty.
Hence, he is allowed to employ the law of self-defense….. I would submit to you that it shows
that my client could rely on the same defense that Leonard Rivas could rely on, the law of self-
defense not provoked by Michael Rivas but provoked by Felix Flores….I would ask you to
return a verdict of not guilty on each and every one of those charges for one of two reasons.
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One, the state hasn’t met their burden of proof or two, the defense has been established.” (IX R.R
at 44-46). See Barrera v. State, 10 S.W.3d at 745-746.
There is nothing in the record indicating that the jury was misinformed or uninformed on
the law of self-defense. Barrera v. State, 10 S.W 3d at 746, Linden v. State, 347 S.W.3d 819,
823 (Tex App. – Corpus Christi 2011, pet. ref’d). The jury was given a general instruction on
the law of self-defense and an application paragraph on self-defense. Reference was made in the
application paragraph of the charge for the offense of aggravated assault to the general
instructions regarding the law of self-defense. Id. Additionally, trial counsel objected to the first
draft of the court’s charge that included language that the jury should acquit if they had
reasonable doubt on the issue of self-defense. Id.
Additionally, there is a decline in authority of the importance of the application paragraph
of a court’s charge. Barrera v. State, 982 S.W.2d at 417. It may well be that the application
paragraphs are an anachronism and that jurors could perform just as well without the paragraph.
Id. In light of the relative decline in the importance of the application paragraph, any error on
the part of the trial court to be more elaborate in the application paragraph on the law of self-
defense did not cause harm. Barrera v. State, 10 S.W.3d at 746.
Appellant’s first point of error should be overruled.
ISSUE NUMBER TWO
THE TRIAL COURT DID NOT ERR IN ITS CHARGE TO THE
JURY IN ITS APPLICATION OF THE LAW OF PARTIES
When an appellate court is presented with potential jury charge error, the court must
conduct a two-step inquiry: 1) the reviewing court must determine whether the jury charge
contains error; 2) the reviewing court must determine whether sufficient harm resulted from the
error to require reversal. Vogt v. State, 421 S.W.3d 233, 239 (Tex. App. – San Antonio, 2013,
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no pet. h.) citing Mann v. State, 964 S.W.2d 639, 642 (Tex. Crim. App. 1998). If an appellate
court finds an error in the jury charge, the question of which standard of harm applies is
dependent upon whether an objection was lodged. Id. Where there has been a timely objection
made at trial, an appellate court will search for only “some harm.” By contrast, where the error
is urged for the first time on appeal, a reviewing court will search for “egregious harm.” Id. In
conducting its analysis, the court must consider: 1) the jury charge as a whole, 2) the arguments
of counsel, 3) the entirety of the evidence, and 4) other relevant actors present in the record. Id.
The trial court provided the following charge on the law of parties:
A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both. Each party to an offense may be charged with
commission of the offense. Each party to an offense may be charged and
convicted without alleging that he acted as a principal or accomplice. A person is
criminally responsible for an offense committed by the conduct of another if
acting with intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the
offense. If, in the attempt to carry out a conspiracy to commit one felony, another
felony is committed by one of the conspirators, all conspirators are guilty of the
felony actually committed, though having no intent to commit it, if the offense
was committed in furtherance of the unlawful purpose and was one that should
have been anticipated as a result of the carrying out of the conspiracy (II C.R. at
494-495).
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Now if, bearing in mind the foregoing instructions and definitions, if you
find from the evidence beyond a reasonable doubt that on or about October 15,
A.D. 2011, in Medina County, Texas, the defendant, MICHAEL A. RIVAS, as
alleged in the indictment, acting alone or as a party to the offense, did then and
there, intentionally, or knowingly cause the death of an individual, namely Felix
Flores, by shooting him with a firearm, then you find the defendant guilty of the
offense of murder, and so say by your verdict (II C.R. at 495).
Now bearing in mind the foregoing instructions and definitions, including
the instructions above regarding self-defense, you find beyond a reasonable doubt
that, in Medina County, Texas, on or about October 15, A.D. 2011, the defendant,
MICHAEL A. RIVAS, did then and there, acting alone or as a party to the
offense, intentionally, knowingly, or recklessly cause bodily injury to Johnny Joe
Flores, by shooting him with a firearm, and the defendant did then and there use
or exhibit a deadly weapon, to wit:, a handgun, then you will find the defendant
guilty of the offense of Aggravated Assault With a Deadly Weapon; but if you do
not so find, or if you have a reasonable doubt thereof, you will acquit the
defendant, and say by your verdict not guilty (II C.R. at 500).
The appellant did not object to this jury instruction (VIII R.R. at 139-158, IX R.R. at 3-7,
21-22), See Appellant’s brief pg. 9-11.
The appellant relies on the Jaycon decision. Jaycon v. State, 651 S.W.2d 803 (Tex. Crim.
App. 1983) (en banc). In Jaycon, there was no evidence that Jaycon was the primary actor or
that Jaycon was even present at the time of the shooting. Id. at 807. That court held that if
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Jaycon was guilty, he was only guilty as a party. The court explained the jury instruction must
be limited to the facts of the case. Id. The facts in the instant case are very different from the
Jaycon case. By the appellant’s own testimony, he was present at the scene when the shooting
occurred. Additionally, both Johnny Joe Flores and Margie Gonzales testified that they saw the
appellant pick up the weapon in the front seat of the Expedition, lean over the co-defendant and
fire shots at Felix Flores and Johnny Joe Flores. Id., (IV R.R. at 38-39, 166-173, VII R.R. at
233-236), Vogt v. State, 421 S.W.3d at 240.
A person is criminally responsible as a party to an offense if the offense is committed by
his own conduct, by the conduct of another for which he is criminally responsible, or by both.
Tex. Penal Code Ann. §7.01(a) (Vernon 2011). A person is criminally responsible for an offense
committed by the conduct of another if…acting with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit
the offense.” Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2011). A trial court may instruct the
law of parties if there is sufficient evidence to support a jury verdict that the defendant is
criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim.
App. 1999). The court may consider the events that took place before, during, and after the
commission of the crime. Vogt v. State, 421 S.W.3d at 241.
In the instant case, there was ample evidence to convict the defendant of murder and
aggravated assault with a deadly weapon under the law of parties. The evidence was that the
appellant got into an altercation with Felix Flores earlier in the evening, that he and his brother
drove around Felix Flores’s brother’s home that night, that they attempted to evade police when
they saw an officer in the area, that his brother had a gun in the Expedition, that the appellant
was the one driving the Expedition, that the co-defendant shot at Felix Flores and Johnny Joe
20
Flores and that the appellant picked up the gun and leaned over the co-defendant and also shot at
Felix Flores and Johnny Joe Flores. Additionally, there was evidence that the appellant fled the
scene of the crime and remained at large for one (1) week after the offense (IV R. R. at 161).
The court’s instructions required the jury to either find that the appellant intentionally or
knowingly caused the death of Felix Flores or was criminally responsible for the acts of the
person that caused the death of Felix Flores (II C.R. at 495, 500). Vogt v. State, 421 S.W.3d at
241.
In the absence of a timely objection, the charge error requires reversal only if it results in
egregious harm. Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008).
The definitions in the court’s charge did not mislead or confuse the jury as to their
responsibility. Rather, a reasonable jury would be able to refer to the abstract definition of the
law of parties without having it repeated again in the application paragraph. Vogt v. State, 421
S.W.3d at 241, citing Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).
Accordingly, the jury charge properly instructed the jury regarding the appellant acting as a party
to the offense of murder and aggravated assault with a deadly weapon. Id.
Even assuming some error, reversal is only required if the error was calculated to injure
the rights of the defendant; that is, some harm to the accused has resulted. Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985). To determine the degree of harm under the Almanza
standard, the court reviews the 1) entire charge the state of evidence, including the contested
issues and weight of probative evidence; and 3) the argument of counsel and any other relevant
information revealed by the record of the trial as a whole. Vogt v. State, at 242. The state
charged that the appellant acted alone, as a party, or as a conspirator. The instant case contains
ample evidence that the appellant was guilty not only as a party, but also as a principal. There
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was sufficient jury argument, the evidence presented and jury charge in its entirety do not
support that the jury was misled by the court’s charge. Id. at 243-245. Thus, the appellant’s
second point of error should be overruled.
ISSUE NUMBER THREE
THE TRIAL COURT DID NOT ERR IN ASSESSING ATTORNEY’S
FEES TO THE JUDGMENTS IN THAT THE JUDGMENTS WERE TO
REFLECT THAT TIME AND MONEY WERE TO RUN CONCURRENTLY
ARGUMENT AND AUTHORITIES
An appellant may challenge the sufficiency of the evidence to support an assessment of
attorney fees in the written judgment for the first time on appeal and that claim need not be
preserved by an objection in the trial court. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.
App. – 2010). Compensation of counsel appointed to represent defendants is governed by
Article 26.05 of the Texas Code of Criminal Procedure. A trial court may order a defendant to
pay for the costs of legal services provided if it first determines that the defendant has financial
resources that enable him to offset in part or in whole the costs. Code Crim. Proc. Ann. art.
26.05(g) (Vernon 2011). A defendant who has previously been found indigent is presumed to
remain indigent unless there is a material change in his financial status. Wiley v. State, 410 S.W.
3d 313, 317 (Tex. Crim. App. 2013). In the absence of any indication in the record that his
financial status has in fact changed, the evidence will not support a judgment of attorney fees.
Id., citing Mayer v. State, at 557.
The record indicates that the appellant did not wish to have a court appointed lawyer in
this matter (I C.R. at 32). The clerks’ record does not include an application for a court
appointed attorney nor does it include an affidavit of indigency. Nonetheless, the record
22
indicates that the trial court found the appellant to be indigent and appointed counsel to represent
him in the trial court (I C.R at 33, 41, 43).
There is nothing in the record to support a finding that the appellant did or did not lack an
ability to pay for his attorney’s fees. Additionally, the appellee notes that there is nothing in the
record to support a finding that the appellant’s ability to pay attorney’s fees did or did not change
after the trial court determined him to be indigent. See Wiley v. State, at 317.
In the event that this court finds that it was error for the court to assess attorney fees
absent a finding of a material change in the appellant’s financial status when the appellant did
not apply for a court appointed attorney, the state would request that this court modify that
judgment to delete the assessment of attorney’s fees in the judgment and order the district clerk
to delete the attorney fees from the bill of costs.
The undersigned will note for this court that in preparation of this appeal it was
discovered that the judgments for this appellant were in error in that the judgments should reflect
that time and money were to run currently. The undersigned has brought this to the attention of
the trial court and the court has ordered that the judgments in this case be corrected to reflect that
the time and attorney’s fees to run currently. A supplemental clerk’s record will be forthcoming.
PRAYER
For these reasons, STATE OF TEXAS, Appellee, requests that this Honorable Court to
affirm the decision of the trial court on all three issues. In the alternative, appellee requests that
this Court delete that attorney’s fees from each judgment or permit the trial court additional time
to submit reformed judgments stating that the time and attorney’s fees are to run concurrently.
The Appellee requests any other relief to which it may be justly entitled.
Respectfully submitted,
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DANIEL J. KINDRED
38TH JUDICIAL DISTRICT ATTORNEY
MEDINA COUNTY, TEXAS
3102 Avenue G
Hondo, Texas 78861
Telephone: (830) 741-6188
Facsimile: (830) 741-6033
By: /s/ Christina Busbee
CHRISTINA BUSBEE
State Bar No. 00797819
ASSISTANT DISTRICT ATTORNEY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the APPELLEE’S BRIEF was served on
MICHAEL C. GROSS, GROSS & ESPARZA, P.L.L.C. at 106 SOUTH ST. MARY’S STREET, SUITE
260, SAN ANTONIO, TEXAS 78205, via electronic mail address, lawofcmg@gmail.com on May
7, 2015.
/s/ Christina Busbee
CHRISTINA BUSBEE
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