Pablo Lebario, Jr. v. State ( 2006 )

Opinion filed July 20, 2006

Opinion filed July 20, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00068-CR

                                                    __________

                                   PABLO LEBARIO, JR., Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR29501

                                                                   O P I N I O N

The jury convicted Pablo Lebario, Jr. of the offense of aggravated assault and made an affirmative deadly weapon finding.  The trial court assessed punishment at confinement for eighteen years. We affirm. 

                                                                         Issues

Appellant presents three issues for review.  In the first, he argues that the evidence is legally and factually insufficient to establish that his fist was a deadly weapon.  In the second, appellant contends that the evidence is legally and factually insufficient to overcome his self-defense theory.  Appellant argues in his third issue that the trial court erred in admitting evidence of appellant=s parole status. 

                                                    Sufficiency Standards of Review

To address appellant=s challenges to the legal sufficiency of the evidence, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.  Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

                                  Does the Evidence Support a Deadly Weapon Finding?

The jury found that appellant used his fist as a deadly weapon during the commission of the offense.  For evidence to be sufficient to sustain a deadly weapon finding, the evidence must demonstrate that a deadly weapon, as defined by Tex. Pen. Code Ann. ' 1.07(a)(17) (Vernon Supp. 2005), was used or exhibited during the commission of the offense or the flight therefrom.  Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2005); see also Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  Section 1.07(a)(17) defines deadly weapon as either: A(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury@ or A(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ It has been determined that a fist may be a deadly weapon based upon the manner of its use.  See Turner v. State, 664 S.W.2d 86 (Tex. Crim. App. 1983); Brooks v. State, 900 S.W.2d 468, 472-73 (Tex. App.CTexarkana 1995, no pet.). 

The evidence in this case shows that appellant and some friends went out to Bennigan=s for drinks and then to a bar called Hot Shots. While in the parking lot after Hot Shots closed, appellant punched the victim, Jesse Herrera, in the temple area on the left side of his head.  The victim immediately fell to the ground, unconscious.  When the victim fell to the ground, he hit his head on the pavement. Bystanders attempted to help, but they were unable to revive the victim, who had quit breathing and had no pulse. The victim was dead when paramedics arrived shortly thereafter.  The resuscitation efforts of the medical personnel were futile.

Appellant testified and admitted that he Athrew a punch@ at the deceased but that he did so in self-defense.  Appellant also testified that he did not intend to kill the victim and that he did not use a deadly weapon.

The medical examiner testified that the victim=s death resulted from a subarachnoid hemorrhage that was caused by a blunt force injury to the side of the head.  According to the medical examiner, a blow to the side of the head, if forceful enough, can cause the head to rotate and tear or shear vessels and, thus, cause the type of hemorrhage that killed the victim in this case.  Tests revealed that the victim had ingested cocaine and alcohol.  The medical examiner agreed that the victim hitting his head on the pavement when he fell or previously ingesting cocaine and alcohol could have contributed to the victim=s injury.  However, the medical examiner explicitly determined the cause of death to be the blow to the side of the victim=s head.  Moreover, the victim would not have fallen to the ground and struck the pavement if he had not been punched by appellant. 

After reviewing all the evidence, we hold that the evidence was both legally and factually sufficient to show that appellant=s fist was used during the commission of the offense and that, in the manner of its use, appellant=s fist was capable of causing death or serious bodily injury.  Not only did the evidence show that appellant=s fist was capable of causing death or serious bodily injury but also that it did, in fact, cause the victim=s death.  The evidence showed that appellant used his fist to punch the victim and that the victim actually died as a result of the blow from appellant=s fist.  Accordingly, we uphold the deadly weapon finding and overrule appellant=s first issue. 

                       Is the Evidence Sufficient Despite Appellant=s Claim of Self-Defense?

1. Standard of Review

When self-defense is an issue and the legal sufficiency of the evidence is challenged, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt and also could have found against appellant on the defense issue beyond a reasonable doubt.  Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see Tex. Pen. Code Ann. ' 2.03 (Vernon 2003); Jackson v. Virginia, 443 U.S. 307; Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).  With respect to a defense, the defendant bears the burden of production, requiring the production of some evidence that supports the particular defense.  The State then bears the burden of persuasion, rather than production, to disprove that defense.  This standard requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913-14. 

In order to address a challenge to the factual sufficiency of the evidence with respect to the rejection of a defense, we must review all of the evidence in a neutral light and determine whether the State=s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.  Zuliani, 97 S.W.3d at 595. 

2. Evidence

The record shows that the issue of self-defense was disputed.  Appellant testified that he had no quarrel with the victim and that he was walking up to a group of people in the parking lot to ask his friends if they were going to ride with him.  According to appellant, as he walked up to the victim, the victim suddenly threw a punch at appellant.  Appellant, in self-defense, ducked and swung at the victim.

Other witnesses testified that Phillip Rosales had an argument with somebody as the bar was closing.  Afterward, Rosales came up to the window of the car as appellant was leaving and said something to appellant.  Appellant exited the car and walked straight up to the victim and just punched him in the side of the head with a Aroundhouse@ type of punch and then left.  According to one witness, appellant took a running start before hitting the victim.  The eyewitnesses testified that there was no argument or discussion between appellant and the victim prior to the punch.  The victim was standing around socializing with others when appellant walked up.  Two of the victim=s friends testified that the victim never even knew what hit him.  The victim was not facing the direction from which appellant came and was wearing a hat with the brim bent down pretty low.  As appellant drove away, he pointed his finger and said, AThat motherf----r knows why I did that.@

We hold that a rational jury could have found beyond a reasonable doubt that appellant committed the offense and also could have found against appellant on the self-defense issue beyond a reasonable doubt.  Furthermore, the evidence supporting guilt is neither so weak nor so outweighed by the great weight and preponderance of the evidence as to be manifestly unjust.  Appellant=s second issue is overruled. 

                         Was the Admission of Appellant=s Parole Status Reversible Error?

In its brief, the State concedes that the admission of evidence relating to appellant being on parole at the time of the offense was erroneous.  The State argues, however, that the error is not reversible error under Tex. R. App. P. 44.2(b). Rule 44.2(b) provides that nonconstitutional errors that do not affect substantial rights must be disregarded.  A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury=s verdict.  Haley v. State, 173 S.W.3d 510, 518-19 (Tex. Crim. App. 2005).  In assessing the likelihood that the jury=s decision was adversely affected by the error, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the error, the connection of the error with other evidence in the case, the jury charge, the State=s theory, the defensive theories, closing arguments, and voir dire.  Id. The reviewing court may also consider whether the State emphasized the error.  Id.

The record shows that the following exchange occurred during the State=s cross-examination of appellant:

Q:  Okay. Now, in -- so you were still on parole when this thing happened?

A:  In 2003? That would be correct, sir.

Q:  Okay. And one of those conditions of your parole was you were to --

[DEFENSE COUNSEL]:  Objection, Your Honor.  Could we approach the bench?

THE COURT:  Yes, sir.

(Counsel at bench.)

[DEFENSE COUNSEL]: Your Honor, if [appellant] violated a condition of parole, that is not relevant to anything, that only poisons this jury.  It shows he has a propensity to be a criminal.  And that=s exactly what Rule 404(B) [Tex. R. Evid. 404(b)] prohibits.  That=s all he=s doing is trying to smear [appellant], that he=s a bad person. This is not relevant to anything. The fact he had a condition of a parole he wasn=t supposed to drink, that makes him look like a bad person.  That=s not relevant to anything.  He already admitted he had been drinking. 

[PROSECUTOR]:  It is very relevant to show that he was busting his parole by being in this beer joint.

[DEFENSE COUNSEL]:  That is relevant to nothing.  Absolutely nothing.  I do -- I strenuously object to this. 

THE COURT:  I overrule the objection.

(Counsel return to seats.)

Q: (BY [PROSECUTOR])  Well, in spite of that, you elected to go to these beer joints; is that correct -- I don=t get [sic] guess we can call Bennigan=s a beer joint because they serve food, too, but they serve alcohol, correct?

. . . .

Q:  Bennigan=s is okay.  But Hot Shots is a beer joint, would you agree?

A:  I agree.

We hold that trial court=s error is not reversible.  Even though the trial court overruled appellant=s objection, the State did not introduce evidence about the conditions of appellant=s parole or his violation of those conditions. The evidence merely informed the jury that appellant was on parole B which evidence was introduced without objection B and that appellant went to a Abeer joint.@  The jury heard no evidence regarding appellant=s violation of his parole and, thus, no evidence of a crime, wrong, or bad act in violation of Rule 404(b).  Consequently, we hold that any error committed by the trial court in overruling appellant=s objection did not affect appellant=s substantial rights and was harmless under Rule 44.2(b).  Appellant=s third issue is overruled.

The judgment of the trial court is affirmed. 

RICK STRANGE

JUSTICE

July 20, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.