Joe Veloz v. State ( 2010 )

Opinion issued June 17, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00406-CR

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Joe Veloz, Appellant

V.

State of Texas, Appellee

On Appeal from the 506th District Court

Waller County, Texas

Trial Court Case No. 08-02-12794

MEMORANDUM  OPINION

A jury convicted appellant, Joe Veloz, of murder, rejecting his claim of self-defense and assessing punishment at 20 years in prison.  See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2003). In his second point of error, appellant asserts that the evidence presented at trial was legally and factually insufficient to uphold his conviction.  In his first point of error, appellant contends that the trial court erred in overruling his motion for mistrial based on the prosecutor’s jury argument that misstated the burden of proof for a claim of self-defense.   We affirm.

BACKGROUND

Appellant was a temporary worker outside Brookshire, Texas when he first met Robert Shows at the Executive Inn Motel, where both were staying the night of September 30, 2006. That night, appellant was in Shows’s room when Shows, “kind of scared,” told appellant that he, Shows, owed some $40 to an unidentified “big guy, black guy” and was afraid that he could not pay it back.  Though appellant suspected Shows of wanting the money to buy drugs, appellant lent Shows $50 on the understanding that he would return it later that night after his claimed troubles had passed. 

When appellant returned to Shows’s room in the early hours of October 1 in search of repayment, Shows began a tirade against “Mexicans” and “illegals” taking money and jobs.[1]  In his trial testimony, appellant claimed that as the exchange escalated, Shows “got loud and . . . started getting in [appellant’s] face.”  Appellant recounted that Shows then got up and grabbed a steak knife (“the first knife”) from the table at which they were seated, saying “I got something for you . . . or something to that effect.”  Appellant claimed that he squeezed a nerve in Shows’s wrist and forced him to drop the first knife, which appellant then grabbed before stepping away in an attempt to defuse the situation.  Shows then turned and grabbed another knife (“the second knife”) from behind him and began to turn back toward appellant with apparent intent to kill.  Realizing that “it was either going to be me or him,” appellant stabbed Shows “in his back or shoulder” with the first knife, breaking off its handle.  As the two continued to struggle, appellant wrested the second knife away from Shows and stabbed him numerous times, at least once lethally, in the front of his body.  In total, appellant inflicted 14 stabbing wounds, covering Shows’s back, neck, abdomen, and arms.

The police arrived late that morning upon receiving a call from a housekeeper who had entered Shows’s room to the sight of Shows’s body near the sink.  Appellant approached the officers and told them “what had happened,” but said nothing of his own involvement in the incident.  After the police brought him back to the station for questioning, appellant related the substance of his trial testimony to the interrogating officer, Oscar Garcia.  Appellant testified that Garcia, because he suspected appellant of covering for someone else, told him that he would be “screwed” if he maintained his story. Appellant therefore “admitted” that another man, Julio Ibarra, was the true culprit.  This was appellant’s first statement to the police (“the first statement”).

Later, however, appellant dictated and signed a second statement (“the second statement”) admitting his own role, but contradicting his later trial testimony in a number of important ways.  For example, in the second statement, appellant said that he had given Shows the money not in response to Shows’s pleas, but, rather, to buy cocaine for appellant’s use, and that he had been angry at Shows because “the cocaine had been stepped on pretty bad.”  In the second statement, appellant described himself, not Shows, taking the first knife off the table in an attempt to preempt his adversary, who had merely “acted like” he was going to grab it first.  Appellant described in that statement how he had immediately spun his adversary around and, losing his footing, was unable to keep from stabbing Shows in the back.  The second statement explained that because appellant “thought” that Shows was going to try to grab the second knife, appellant went over the top of Shows to preempt him.  While appellant testified at trial that he had found Shows’s wallet empty, in the second statement he reported that he found and took $50 from Shows’s wallet after the fight was over, seeing it as “just payback for the money that was taken from [him] on [sic] the cocaine.”  At trial, appellant claimed that each of these discrepancies was a misstatement or a distortion and that—contrary to the testimony of the recording officer—appellant had not read the statement or had been too tired to understand it before signing.

SUFFICIENCY OF THE EVIDENCE

In point of error two, appellant contends that the evidence was both legally and factually insufficient to support the rejection of his claim of self-defense. 

A.      Legal sufficiency

When a legal sufficiency challenge pertains to the rejection of a defensive claim, we apply the same standards used in reviewing the sufficiency of the evidence to support a guilty verdict.  Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). We consider all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  In doing so, we give deference to the factfinder to resolve conflicts in testimony fairly, to weigh evidence, and to draw reasonable inferences from the facts.  Id. However, our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused.  Id.

A person is justified in using deadly force against another:

          (1)     if the actor would be justified in using force against the other under Section 9.31;[[2]] and

          (2)     when and to the degree the actor reasonably believes the deadly force is immediately necessary:

                   (A)    to protect the actor against the other’s use or attempted use of unlawful deadly force; . . . .

TEX. PENAL CODE ANN. § 9.32(a) (Vernon 2003).  Deadly force is that intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.  Id. § 9.01(3) (Vernon Supp. 2009).  A “reasonable belief” is one that would be held by an ordinary and prudent man in the same circumstances as the actor.  Id. § 1.07(a)(42) (Vernon 2003). 

A defendant asserting a claim of self-defense bears the initial burden of producing some evidence in support of his contention; if he meets this burden, the State then takes on the burden of persuasion to disprove the raised defense.  See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d at 914.  The State’s burden of persuasion, however, “is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt.”  Zuliani, 97 S.W.3d at 594.  When a jury finds a defendant guilty, there is an implicit finding against the defensive theory, as well.  Id.

In support of his legal-sufficiency challenge, appellant emphasizes that no testimony offered at trial directly contradicts his testimony that he acted in self-defense. This alone does not render the evidence insufficient. 
See Denman v. State, 193 S.W.3d 129, 133 (Tex. App.—Houston [1st Dist.] 2006, pet ref’d) (citing Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003)).  As we noted in Denman, the proposition that, as a matter of law, no rational jury could find against a defendant who was the only witness to his alleged crime merely because of his own testimony that he acted in a legally permissible manner would contradict our principle of deference to the factfinder’s credibility determinations. Id.  The jury’s credibility determinations must nonetheless have some basis in the record to justify a finding against a defensive theory.  See Sells, 121 S.W.3d at 754 (noting other circumstances from which a rational jury could have inferred specific intent). 

Viewed in the light most favorable to the verdict, there was some evidence from which a rational jury could have inferred guilt and from which it could have formed a rational doubt about the credibility of appellant’s testimony.  For example, in his first statement, appellant falsely accused another man of having committed the murder.  Appellant’s second statement recounted the events of that night in terms far less indicative of self-defense than those of his trial testimony, asserting, for example, that Shows had merely “acted like” he was going to grab the first knife and that appellant had only “thought” Shows would grab the second. The second statement contradicted appellant’s trial testimony in other ways as well, describing, for example, a complex back-story to the incidents of that night in which appellant was angry with Shows for having failed to deliver certain drugs.  Moreover, the location and abundance of the knife wounds on the victim’s body suggested that appellant acted as an aggressor and not in self defense: as Harris County medical examiner Dr. Dwayne Wolf testified, many of the wounds on the victim’s arms and hands appeared defensive.  The fact that appellant checked Shows’s wallet after having killed him, too—combined with appellant’s second statement, in which he said that he had taken $50 from the wallet as “just payback for the money that was taken from [him] on [sic] the cocaine”—could have formed an independent basis for a rational conclusion that appellant did not act in self-defense.  Viewing the evidence in a light most favorable to the verdict, we hold that a rational jury could have rejected appellant’s claim of self-defense and found him guilty of murder.

We overrule the legal-sufficiency challenge under point of error two.

B.      Factual Sufficiency

In a factual-sufficiency review, we examine all of the evidence in a neutral light and ask (1) whether the State’s evidence, taken alone, is too weak to support the finding; or (2) whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani, 97 S.W.3d at 594 (applying Johnson’s factual sufficiency analysis to defenses).  Under this standard, we cannot declare that a conflict in the evidence justifies a new trial merely because we disagree with the jury’s resolution of that conflict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  The factfinder alone determines what weight to place on conflicting testimony because that determination depends on the factfinder’s evaluation of witnesses’ credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).  As the sole determiner of the credibility of the witnesses, the factfinder may choose to believe all, some, or none of the testimony presented.  See id. at 407 n.5.

Appellant argues that “the facts that most undermine the jury’s verdict are that no one refuted [appellant’s] testimony that the decedent came at him with a knife on the first provocation and he attempted to stab him with another knife on the second provocation even after [appellant] wrestled [sic] the first knife away from the decedent.”  However, the discrepancies between appellant’s two post-arrest statements and Dr. Wolf’s testimony regarding the number and nature of the wounds inflicted provided adequate factual basis for a rational jury to conclude that appellant’s claim of self-defense was not credible.  See Matos v. State, No. 01-06-01005-CR, 2008 WL 659832, at *8 (Tex. App.—Houston [1st Dist.] March 13, 2008, no pet.) (not designated for publication) (citing multiplicity of stabbing marks and presence of defensive wounds in overruling factual-sufficiency challenge to jury’s rejection of claim of self-defense); Gutierrez v, State, 85 S.W.3d 446, 450 (Tex. App.—Austin 2002, pet. ref’d) (citing, inter alia, the presence of defensive wounds on victim’s hands in overruling factual-sufficiency challenge).  Viewing the record neutrally, we conclude that the jury’s verdict was not so contrary to the great weight and preponderance of the evidence that it was rendered unjust. 

We overrule the factual-sufficiency challenge under point of error two.

MISTRIAL

In point of error one, appellant complains that the trial court erred in overruling his motion for mistrial asserted when the prosecutor misstated the burden of proof for self-defense in her closing argument at the guilt-innocence stage of the trial.  To preserve error regarding improper jury argument, a defendant ordinarily should (1) contemporaneously object to the statement; (2) request an instruction that the jury disregard the statement if the objection is sustained; and, (3) move for a mistrial if the instruction is granted. Cooks v. State, 844 S.W.2d 697, 727–28 (Tex. Crim. App. 1992); Dominguez v. State, 125 S.W.3d 755, 763 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).  However, this sequence is not essential to preserve complaints for appellate review; the essential requirement is a timely, specific request that the trial court refuses.  Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).  Even if a defendant obtains no explicit adverse ruling on his objection, the denial of a motion for a mistrial will suffice to preserve error.  See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Young, 137 S.W.3d at 70 (upholding review of the denial of a motion for a mistrial even when trial court had never directly responded to defense counsel’s objection).

However, when a defendant’s first action is to move for a mistrial, review is limited to the question of whether the trial court erred in not taking the most serious action of ending the trial.  Young, 137 S.W.3d at 70.  Harm from improper jury argument warrants a mistrial only if (1) it is extreme, improper, injects new and harmful facts into the case, or violates a mandatory statutory provision and (2) as a result, is so inflammatory that its prejudicial effect cannot reasonably be cured by an instruction to disregard.  Thompson v. State, 89 S.W.3d 843, 851 (Tex. App.—Houston [1st Dist.] 2002, no pet.)   (citing Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991)  ).  We review a trial court’s denial of a motion for a mistrial under an abuse-of-discretion standard.  Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). 

The prosecutor addressed the jury as follows:

The State has the burden of proofing [sic] Joe Luis Veloz guilty of the murder of Robert Allan Shows.  Yes, we do. We have taken that willingly; but this self-defense issue is something that can only come to you from the defense, and it is the defense’s obligation to show, to convince you that it was self-defense.

Counsel for appellant moved for a mistrial almost immediately, objecting to the

State’s misleading and being incorrect on a statement of the law that it is Mr. Veloz’s duty to convince them this was self-defense.  It illegally shifts the burden and it’s a misstatement of the law. I move for a mistrial.

The court denied the motion for mistrial, but instructed the jury that “the law will be provided and has been provided in the charge of the Court.”

Appellant argues that the trial court should have granted his motion for mistrial because “the argument shifted the burden to [appellant] to essentially prove his innocence” and “injected new and harmful law that exceeded the jury instruction and significantly and unconstitutionally skewed the advantage in favor of the [S]tate.”  Although we agree that the prosecutor misstated the burden of proof by asserting that it was the defendant’s “obligation to show, to convince you that it was self-defense,” we conclude that an instruction to disregard would have sufficed to cure whatever prejudice the remark may have caused.[3]

Except in extreme cases, the jury is presumed to follow instructions, including instructions to disregard.  Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1987), abrogated in part on other grounds by Karenev v. State, 281 S.W.3d. 428, 434 (Tex. Crim. App. 2009).   This presumption applies to an instruction to disregard prosecutorial misstatements of the law.  See Blondett v. State, 921 S.W.2d 469, 474­­­–75 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (“Because the trial court told the jury to disregard [a prosecutor’s false statement of the evidentiary burden] . . . and only listen to the judge’s instructions on the law, the trial court cured any error caused by the improper argument.”).  The prosecutor’s statements, which were not repeated, were not so extreme that an instruction to disregard would not have cured them.  See Lewis v. State, No. 01-90-00326-CR, 1991 WL 114442, at *2 (Tex. App.—Houston [1st Dist.] June 27, 1991, no pet.) (not designated for publication) (holding that instruction to disregard cured isolated misstatement of burden of proof).

Because we hold that a judicial instruction to disregard could adequately have cured the prosecutor’s misstatement, we further hold that the trial court did not err in denying appellant’s motion for mistrial.

We overrule point of error one.

CONCLUSION

We affirm the judgment of the trial court.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

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

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[1]           Appellant is Hispanic.

[2]           See TEX. PENAL CODE ANN. § 9.31(b)(1), (4) (Vernon 2003).

[3]           Because the scope of our review in this case is limited to determining whether the

trial court erred in denying appellant’s motion for mistrial, we do not reach the issue of whether the trial court in effect instructed the jury to disregard the prosecutor’s statement.