Michael Ray Trevino v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00169-CR
MICHAEL RAY TREVINO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2012-435,442, Honorable Jim Bob Darnell, Presiding
July 17, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Michael Ray Trevino appeals his conviction of aggravated assault with a deadly
weapon. His two issues implicate the jury charge and the trial court’s refusal to instruct
the jury on 1) the purported lesser included offense of deadly conduct and 2) the
defense of necessity. We affirm.
Background
The charge arose from appellant dragging Juanita Rodriguez alongside a car he
was driving. That she suffered injuries was undisputed. Nor does anyone deny that
appellant knew Juanita was hanging on to the vehicle as he drove away. And, what
precipitated the incident was a night of drinking between Juanita, appellant, appellant’s
girlfriend (Elia), and another male (Issac). After appellant called the two females “trash,”
the females and appellant began to argue. That led to appellant entering Elia’s car,
Juanita approaching it to either remove therefrom property she owned or the keys from
the ignition, and appellant driving away with the female attached to it. Other evidence
indicates that while attempting to drive away, appellant also struck Elia and Issac with
the vehicle.
At trial, appellant asked the trial court to include in its jury charge instructions on
the purported lesser included offense of deadly conduct and the defense of necessity.
The request was denied, and that denial forms the basis of this appeal.
Lesser Included Offense
Though we could venture into a discourse about the jurisprudence related to
lesser included offenses, it is not necessary here. Rather, all must agree that of the
multiple elements to the applicable test, one requires the presence of some evidence
that would permit a rational jury to find that if the accused is guilty, he is guilty only of
the lesser offense. Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012);
Baca v. State, 223 S.W.3d 478, 480 (Tex. App.—Amarillo 2006, no pet.).
Here, the indictment upon which appellant was tried averred therein that he:
. . . on or about the 20th day of May, AD. 2012 did then and there
intentionally, knowingly, or recklessly cause bodily injury to JUANITA
RODRIGUEZ by striking or dragging . . . [her] and the defendant did then
and there use or exhibit a deadly weapon, to-wit: a motor vehicle, during
the commission of said assault . . .
(Emphasis added).
This language generally tracks the offense of aggravated assault found under
section 22.01(a)(1) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.01(a)(1)
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(West Supp. 2013) & § 22.02(a) (West 2011) (stating that one commits aggravated
assault if he intentionally, knowingly, or recklessly caused bodily injury to another and
used or exhibited a deadly weapon during the assault). Yet, according to appellant, the
charged offense and evidence presented at trial encompassed proof of deadly conduct.
According to statute, the latter arises when a person recklessly engages in conduct that
places another in imminent danger of serious bodily injury. Id. § 22.05(a).
Appellant believed he was entitled to the instruction because “[i]n this case . . .
[his] actions . . . were either directed toward Juanita and met the culpability
requirements of aggravated assault with a deadly weapon, or they were simply acts of
deadly conduct that recklessly exposed Juanita to the risk of serious bodily injury or
death.” In other words, because some evidence indicated that his act of exposing
Juanita to imminent danger of serious bodily injury by dragging her with the car
occurred with a reckless mindset, the deadly conduct instruction was warranted.
Yet, appellant cites us to no evidence (nor did we uncover any evidence
suggesting) that 1) he did not drag Juanita along as he attempted to drive away, 2) he
did not know Juanita was attached to the car as he attempted to leave, or 3) Juanita
suffered no bodily injury due to being dragged along the car as he left. And, given that
both the jury charge and statute authorized conviction for aggravated assault with a
deadly weapon if appellant acted with a reckless mens rea, it appears that acting
recklessly did not permit conviction only for deadly conduct. The jury could have
accepted his argument that he only acted recklessly and still convicted him of either
offense. So, the mandate of Cavazos went unsatisfied, and that entitled the trial court
to refuse to instruct on deadly conduct.
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Necessity
Next, the defense of necessity arises where, among other things, the accused
reasonably believed his conduct was immediately necessary to avoid imminent harm.
TEX. PENAL CODE ANN. § 9.22 (West 2011); see Mays v. State, 318 S.W.3d 368, 385
(Tex. Crim. App. 2010) (stating that “each of these justification defenses requires that
the defendant reasonably believe that his conduct is immediately necessary to avoid a
greater harm”). Furthermore, a reasonable belief is one “that would be held by an
ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL CODE
ANN. § 1.07(42) (West Supp. 2013); Mays v. State, 318 S.W.3d at 385. It merits
comment that because the defense is in the nature of confession and avoidance, the
accused must admit to both committing the criminal act and having the requisite mens
rea before he can utilize the defense. Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim.
App. 2010).
Finally, since the applicable law requires that the accused reasonably believe his
conduct was necessary to avoid harm, we cannot but acknowledge two components.
They consist of an actual belief that his conduct was necessary to avoid harm and that
the belief was reasonable. So, evidence must appear of record illustrating the presence
of both before that prong of the necessity defense is satisfied.
Appellant did not testify at his trial. Thus, he did not personally admit to
committing the act for which he was charged or having the applicable mens rea. Nor
did he cite us to anything of record indicating that he otherwise satisfied the prerequisite
mentioned in Juarez.
The decision to forego testifying also means that he did not disclose what belief,
if any, he held when attempting to leave while dragging Juanita along with the car. Nor
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did appellant cite us to anything of record indicating what he actually believed. And
while fact may be inferred from circumstantial evidence, the inference must be subject
to being reasonably inferred from the fact. See Goad v. State, 354 S.W.3d 443, 449-50
(Tex. Crim. App. 2011). Arguably, appellant attempts to infer the presence of the
requisite belief by alluding to the verbal argument transpiring before he tried to leave,
Juanita reaching into the car to get either the vehicle’s keys or her property, and Isaac
(a member of the same prison gang in which appellant was a member) standing nearby.
Yet, again, we were directed to no evidence of any physical aggression, or threat
thereof, being aimed at him. Nor were we referred to evidence that Isaac did anything
more than simply stand within the vicinity of the car. Without such additional data, one
could not reasonably infer what appellant believed, much less that he reasonably
believed dragging Juanita alongside the car was necessary to avoid some unproven,
yet supposedly imminent, harm.1
Simply put, appellant failed to establish the presence of evidence satisfying the
first element of his supposed necessity defense. So, the trial court did not err in
denying the instruction.
We overrule appellant’s issues and affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.
1
We did find evidence of his telling others that “I think I hurt Elia,” “[s]he drove me to it," "I don't
know if I killed her,” and he “was pissed at her.” It, however, fails to fill the void because, at best, it
illustrates that he acted from anger, not a belief about the presence of harm requiring the response he
undertook.
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