Carlos Aldair Leiba Fugon v. State ( 2007 )

Affirmed and Memorandum Opinion filed March 20, 2007

Affirmed and Memorandum Opinion filed March 20, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00204-CR

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CARLOS ALDAIR LEIBA FUGON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1029292

M E M O R A N D U M  O P I N I O N

Challenging his conviction for aggravated assault, appellant Carlos Aldair Leiba Fugon asserts the evidence is factually insufficient to support his conviction.  We affirm.

I.  Factual and Procedural Background

On the night of May 24, 2005, the complainant, Samuel Bonilla and his girlfriend, Yvette Lopez went to dinner to celebrate Yvette=s birthday.  After dinner, Samuel brought Yvette to her aunt=s home, where Yvette resided.  Sometime later, Samuel and his brother Luis returned to Yvette=s aunt=s house to retrieve Yvette and then go to Luis=s and his wife=s apartment to spend the night.  All three of them arrived at Luis=s apartment complex sometime after midnight, but Luis did not have his gate entry card with him.  Luis and his wife shared one entry card to the apartment complex and his wife, who kept it most of the time, had the card that evening.  Therefore, Luis parked the vehicle on the street outside the apartment complex and they waited for another vehicle to arrive so that they could enter the complex behind that other vehicle.  About twenty to twenty-five minutes later, another vehicle, driven by appellant,  pulled up to the gate of the apartment complex.  Luis followed the vehicle in the hope of gaining access to the apartment complex. The driver of the other vehicle, however, did not use a card to gain access but instead parked in a space outside the gate. 

Samuel got out of his vehicle and walked up to other vehicle.         Appellant exited his vehicle, and Samuel asked him if he had an entry card to the apartment complex.   Appellant responded that he did and then walked to the back of his vehicle and removed a long object wrapped in a white sheet or towel.  Appellant was clearly angry, and Samuel immediately realized that the object was a twelve-gauge shotgun.  Appellant then stated, AYou want your fCg pass, you son of a....,@  and began to wave the shotgun at Samuel and the others.  Appellant fired the shotgun into the air.   Luis moved toward Samuel and the appellant fired the shotgun at Samuel=s feet.^[1]

Yvette started to run toward the main office of the apartment complex.  She heard a gunshot followed by a second gunshot. Yvette turned to see that Samuel had been shot in the shoulder.  Wounded, Samuel tried to walk toward Yvette; he told her that he could not breathe. Yvette instructed Luis to stay with his brother while she went to look for  help.   At that point, Yvette noticed a female passenger in appellant=s car getting into the driver=s seat of the vehicle and driving it into the street.   Appellant picked up the fired shotgun shells and then got into the vehicle, and they drove away. 

Shortly thereafter, emergency medical personnel arrived at the apartment complex, and Samuel was transported to the hospital, where he died within hours.  The autopsy report revealed that he had received a wound from a shotgun to the upper, right side of his chest.  The shotgun pellets broke Samuel=s collarbone, and they ruptured two major blood vessels near Samuel=s heart, and also caused severe internal bleeding.

As part of the police investigation that followed, Detective Jose Selvera with the Houston Police Department obtained information concerning the vehicle driven by appellant and located the same vehicle at the apartment complex where the murder occurred.  Detective Selvera discovered that the vehicle was registered to appellant=s girlfriend, Irene Asian.  One of the doors of the vehicle appeared to have indentations from something like shotgun pellets.   On June 2, 2005, Detective Selvera arrived at appellant=s apartment and identified himself as a police officer.  Appellant did not have any identification, and had difficulty pronouncing his name.  Detective Selvera asked appellant if he lived at the apartment, and appellant responded that the apartment was leased to his girlfriend.  Detective Selvera asked appellant if he would come down to the police station to discuss the murder at the apartment complex.  Appellant responded affirmatively but requested that he be allowed to Awash up@ first. Detective Selvera then took a photograph of appellant, and drove him to the police station. 

At the police station, Detective Selvera asked appellant what, if anything, he knew about the murder.  Appellant responded that he had no information.  Detective Selvera asked appellant if he could take another photograph of him and appellant agreed.  Appellant then used Detective Selvera=s cellular telephone to call his girlfriend, and Detective Selvera took appellant back to the apartment.  Detective Selvera received identification from appellant=s girlfriend when they returned to the apartment.

Detective Selvera placed appellant=s photograph in a photospread which was shown to both Luis Bonilla and Yvette Lopez.  Both Luis and Yvette positively identified appellant as the individual who had shot and killed Samuel.  Appellant was then arrested and charged with murder. Appellant pleaded Anot guilty@ to the charged offense, and asserted a claim of self-defense.  A jury found appellant guilty of the lesser-included offense of aggravated assault, and assessed punishment at twenty years= confinement in the Institutional Division of the Texas Department of Criminal Justice. 

II. Factual Sufficiency of the Evidence

In his sole issue on appeal, appellant contends the evidence is factually insufficient to support the jury=s verdict. More specifically, he contends that, Aunder a balancing test the jury could not have rejected appellant=s self-defense claim beyond a reasonable doubt.@

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006).   It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. Id. at 417.   If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction.  Id. at 414B17.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  In conducting a factual‑sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim. App. 2003).

At trial, appellant raised self‑defense, and the jury charge contained self-defense instructions.   See Tex. Penal Code Ann. '' 9.31.   A criminal defendant bears the burden of production with defenses, requiring him to raise evidence that would support the defense before he is entitled to it.  Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). However, once the defense is raised, the State bears the burden of persuasion to disprove the defense.  Id. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt.  Id.  The defense is a fact issue to be determined by the jury, which is free to accept or reject it.  Saxton v. State, 804 S.W.2d 910, 913B14 (Tex. Crim. App. 1991).  When a jury finds the defendant guilty, there is an implicit finding against the defensive theory.  Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

Appellant contends the evidence is factually insufficient to support the jury=s rejection of appellant=s self-defense claim because the testimony of Luis and Yvette is inconsistent with what they told the police officers.  Appellant also emphasizes his own testimony, and that of his girlfriend to show that he felt Ain fear for his life.@ 

 Appellant=s girlfriend, Irene Asian, testified that on the evening of the murder appellant went to the store to buy some cigarettes but had forgotten his ATM card.   Appellant called Asian and asked her to meet him outside the apartment complex with the card.  Asian testified that as she waited on the sidewalk, she saw appellant pull his vehicle into the apartment complex and drive toward the gate. At the same time, she saw two males and a females parked in another vehicle across the street.  Asian then walked to appellant=s car and tapped on the window.  Appellant noticed her and parked his car.   At the same time, the other vehicle pulled in behind appellant=s car.  The driver of that vehicle exited, and the female asked for the gate card.  Appellant then got out of his vehicle.  

Asian did not hear what was being said between appellant and the others but believed it to be some sort of argument.   Appellant then walked to the other side of his vehicle and told Asian to get into the driver=s side.   Asian testified that she saw one of the males walking toward them with his head down.  Appellant, who had opened the passenger door, was bending down when one of the males  grabbed appellant from the back.  Appellant attempted to retrieve his shotgun from the backseat of his vehicle.  Asian recounted that as the man and appellant engaged in a struggle, the shotgun went off.  Asian then backed away and began to drive off as appellant got into the car.   Asian stated that they drove around the block and returned to their apartment.  Appellant=s testimony in his own defense was similar to Asian=s version of events. Appellant, however, also stated that when the man approached him he appeared to be holding something Ashiny.@^[2]

The Texas Penal Code provides that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force.  Tex. Penal Code Ann. ' 9.31(a) (Vernon Supp. 2005).   A person is justified in using deadly force against another (1) if he would be justified in using force against the other under section 9.31, (2) if a reasonable person in the actor=s situation would not have retreated, and (3) when and to the degree he reasonably believes the deadly force is immediately necessary either to protect himself against the other=s use or attempted use of unlawful deadly force, or to prevent the other=s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.  Id. ' 9.32(a).    ADeadly force@ is defined as Aforce that is 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).

Appellant contends  his testimony and that of his girlfriend established self‑defense and further challenges the factual sufficiency of the evidence the State introduced to rebut this defense. However, as noted above, the State=s burden is one of persuasion, not production of evidence.  See Zuliani, 97 S.W.3d at 594. The State is only required to prove its case beyond a reasonable doubt.  Id.

Appellant, who asserts he was acting in self-defense when he shot and killed Samuel, is the only witness who testified that Samuel was allegedly holding a shiny object when he approached him. The other witnesses denied having any weapons of any kind, and no weapons were found on Samuel=s person, or at the scene of the offense.   The jury could have found appellant=s  and his girlfriend=s testimony not credible.  See Watson, 204 S.W.3d at 414B17.  Even if the jury believed appellant=s testimony, appellant did not provide evidence suggesting that deadly force was necessary to protect appellant from Samuel.  Appellant never testified that the shiny object or any other weapon was used against him.  Appellant stated that he and Samuel struggled for awhile, and he then retrieved his shotgun from the backseat.  Appellant testified that the first gunshot occurred while they were struggling over the shotgun.  Even though Samuel did not appear to use this shiny object to fight back, appellant still felt the need to discharge the shotgun at least two more times.  Under these circumstances, a rational fact finder could have found that any danger had been removed at this time, and, therefore, deadly force was not immediately necessary and thus not justified. See Tex. Penal Code Ann. ' 9.32(a)(3) (Vernon Supp. 2005).   Moreover, appellant=s flight immediately after the shooting and his attempts to hide evidence constitute criminal evidence of his guilt.  See Miller v. State, 177 S.W.3d 177, 184 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d). 

The jury was entitled to believe all of the State=s evidence and, at the same time, disbelieve all of the evidence introduced by appellant.  See Tucker v. State, 15 S.W.3d 229, 235B36 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).   Giving due deference to the jury=s assessment of the witnesses= credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in a neutral light, that the verdict is not against the great weight and preponderance of the evidence and is not clearly wrong or unjust.  Therefore, the evidence is factually sufficient to support appellant=s conviction, and we overrule appellant=s sole issue on appeal.

We affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed March 20, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The trial testimony of appellant and his girlfriend differs from this version of events.  Their testimony is addressed in detail in our analysis of appellant=s issues.

^[2]  Neither appellant nor appellant=s girlfriend gave this version (or any other version) of the events to the police. The first time  either one of the them mentioned appellant acting in self-defense was during appellant=s trial.