Vasquez v. State, 2018 Tex. App. LEXIS 9748 (TX Ct. App. 2018)
Vasquez v. State, 2018 Tex. App. LEXIS 9748 (TX Ct. App. 2018)
Court of Appeals of Texas, First District, Houston
November 29, 2018, Opinion Issued
2018 Tex. App. LEXIS 9748 * | 2018 WL 6216025
NASARIO VASQUEZ, Appellant v. THE STATE OF TEXAS, Appellee
Judges: Panel consists of Chief Justice Radack and Justices Brown and Caughey.
Opinion by: Jennifer Caughey
A jury convicted Nasario Vasquez of murder and the trial court assessed his punishment at 30 years' confinement. See Tex. Penal Code § 19.02(b)(1), (2). On appeal, Vasquez argues that the trial court erred in failing to instruct the jury on self-defense. We find no error and affirm.
Vasquez shot and killed Lawrence Walker, his ex-wife's new boyfriend. At trial, numerous eyewitnesses, including Vasquez's ex-wife and two of their children, described the events leading up to the shooting, the shooting itself, and the aftermath. Vasquez did not testify.
Patricia Vasquez ("Patricia"), Vasquez's ex-wife and the mother of his six children, explained that she and Vasquez had divorced on "bad terms" after 16 years of marriage. After the divorce, all six of their children remained with Patricia.
Patricia testified that she later began dating Walker. Walker eventually moved in with Patricia, her parents, and the children. Walker helped around the house, paid bills and purchased necessities, and assisted the children with homework. Walker was a father figure to the children.
According to Patricia, Vasquez did not take the news well when he learned that she was dating Walker. He referred to Walker using racial slurs and said he did not want his children around Walker.
Vasquez and Walker first met on the day of the murder (March 2, 2014). The day before, Vaquez asked Patricia if he could come see the children. Patricia informed Vasquez that Walker would be there, and Vasquez agreed that there would not be "any problems."
When Vasquez arrived at Patricia's house the next morning, he asked her if she had any money, and she said she did not. Vasquez then left to take three of the children to the neighborhood park.
While at the park, Vasquez asked two of the children who had given them the jewelry they were wearing. When they said Walker, Vasquez stated that he "wanted to kill him.
Vasquez returned to Patricia's house with the children, and one of the children called out to Patricia, who was down the street with Walker. Patricia went to Vasquez's car, and Vasquez again asked her for money.
Patricia and Vasquez started arguing, and with the children still in the car and able to hear, Vasquez called Patricia a "stupid [b]-tch." Patricia then tried to open the rear car door, and Vasquez, who was "[v]ery angry," got out of the car and pushed her "hard."
Walker told Vasquez "not to be pushing [Patricia], the kids are there." Vasquez responded by shouting racial slurs at Walker and telling him to "shut the f-ck up."
Vasquez then punched Walker in the arm and the chest. Walker did not respond. When Vasquez punched him a third time—this time in the face—Walker struck Vasquez once, knocking him to the ground.
Vasquez got up and "[w]ent straight to his vehicle." Walker did not follow or speak to him. Vasquez then fired "[t]wo shots in the air."
According to Patricia, Walker, who did not have a gun, was "panicking." He moved from Patricia's car toward Vasquez "to try to get the gun." The two men began "struggling with the gun." They then fell to the ground and continued fighting for the gun, with Vasquez underneath Walker. Patricia heard a gunshot and saw Vasquez holding the gun. After the men continued wrestling for the gun for another minute or so, Patricia heard a second shot. She saw Vasquez holding the gun. Less than a minute later, she saw and heard Vasquez fire a third shot and then "ge[t] up and pus[h] [Walker] off of him." She then heard Vasquez say, "I'm going to help you," and she saw Vasquez on his phone.
The children recounted similar versions of the events. All agreed that Vasquez was the aggressor.
Several officers also testified. Deputy R. Campos, a crime scene investigator for the Harris County Sheriff's Office, testified that on March 2, 2104, he collected evidence from Vasquez while Vasquez was in the hospital. Deputy Campos photographed Vasquez's injuries, and the trial court admitted the photographs into evidence.
Deputy Campos testified that, as shown in the photographs, the only injuries he saw on Vasquez's body were a bloody scrape mark to his left cheek and discoloration to the top of his left shoulder. He stated that Vasquez did not appear to have any injuries to his hands, other than "possible discoloration" and dry blood on his palm.
Deputy B. Pullen, a patrolman with the Harris County Sheriff's Office, testified that he was dispatched to the scene of the shooting. When he arrived on the scene, he observed "several folks standing in the street . . . pointing down the road stating, 'He went that way.'" He drove in the direction they indicated and discovered car tire tracks in the grass. He followed the tracks through the park.
Vasquez then approached Deputy Pullen's patrol car with his hands in the air. He told Deputy Pullen that his car was nearby and that there was a gun in the back of it. Deputy Pullen took Vasquez into custody.
While in Deputy Pullen's patrol car, Vasquez complained of chest pains and injuries from the incident. Deputy Pullen observed an abrasion on Vasquez's cheek, but no injuries that were life threatening. He testified that Vasquez told him that "he didn't mean to hurt anyone, that he should not have done that in front of [his] kids."
Deputy M. Jones of the Harris County Sheriff's Office Homicide Unit testified that, on March 2, 2014, he went to the hospital where Vasquez was being treated to assess his condition. While there, he observed an abrasion on Vasquez's cheek. He also spoke with medical staff, who said that Vasquez did not have any serious injuries.
Finally, Dr. Merrill Hines, a forensic pathologist and assistant medical examiner for Harris County, conducted the autopsy on Walker's body. Dr. Hines observed three gunshot wounds and concluded that the cause of Walker's death was "[m]ultiple gunshot wounds."
Dr. Hines testified that there were no recent injuries on Walker's hands consistent with having punched or beaten another person. He also noted that, at the time of the autopsy, Walker weighed 271 pounds and was 6'6" tall.
* * *
Vasquez did not call any witnesses at trial. At the close of evidence, Vasquez asked the trial court to include a self-defense instruction in the jury charge, but the trial court denied that request.
The jury found Vasquez guilty of murder and the trial court assessed his punishment at 30 years' confinement.
In his sole issue, Vasquez contends that the trial court erred in failing to instruct the jury on self-defense. We disagree and affirm the trial court's judgment.
A defendant is entitled to a jury instruction on self-defense, when requested, if the issue of self-defense is raised by the evidence, "whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). When reviewing a trial court's decision denying a request for a self-defense instruction, we view the evidence in the light most favorable to the defendant's requested submission. Id. A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense. Id.
Deadly force is justified in self-defense only in response to "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." See Tex. Penal Code § 9.32(a)(2)(A), (B); see also Bundy v. State, 280 S.W.3d 425, 435 (Tex. App.—Fort Worth 2009, pet. ref'd) (deadly force not justified in response to non-deadly force); Diaz v. State, No. 01-15-00646-CR, 2016 Tex. App. LEXIS 11366, 2016 WL 6111035, at *2 (Tex. App.—Houston [1st Dist.] Oct. 20, 2016, no pet.) (mem. op., not designated for publication) (defendant who used deadly force against complainant could claim self-defense only upon showing complainant "used or attempted to use unlawful deadly force, or that he was about to commit one of the offenses that justify deadly force to prevent their commission."). Force is "deadly" when it "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." Tex. Penal Code § 9.01(3); see also Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (firearm is deadly weapon per se (citing Tex. Penal Code § 1.07(a)(17)).
A defendant is not required to testify in order to raise the issue of self-defense. The issue "may be raised by the testimony of witnesses who testify to the defendant's acts and words at the time of the offense." Reed v. State, 703 S.W.2d 380, 384-85 (Tex. App.—Dallas 1986, pet. ref'd) (citing Smith v. State, 676 S.W.2d 584, 587 (Tex. Crim. App. 1984)); see also VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App.—Austin 2005, no pet.) ("Defensive issues may be raised by the testimony of any witnesses, even those called by the State."). But where, as here, a defendant does not testify, there still must be some evidence of the defendant's subjective belief that deadly force was immediately necessary to protect himself. See Tex. Penal Code § 9.32; see also Smith, 676 S.W.2d at 585 ("[T]o justify the submission of a charge to the jury on the issue of self-defense, there must be some evidence in the record to show that the defendant was in some apprehension or fear of being the recipient of the unlawful use of force from the complainant."); Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) ("While a non-testifying defendant may be entitled to a charge on self-defense, it is rare for the defense to be raised when the defendant fails to testify.").
The record must contain some evidence or "observable manifestations" of the defendant's state of mind at the time of the alleged act of self-defense. See VanBrackle, 179 S.W.3d at 713 (quoting Reed, 703 S.W.2d at 385). Examples of observable manifestations of a defendant's state of mind include evidence that the defendant called for help during an altercation or told the complainant, "I don't want to fight you . . . . leave me alone," as they struggled. VanBrackle, 179 S.W.3d at 714; Smith, 676 S.W.2d at 586.
This record is silent as to what Vasquez believed at the time he shot Walker. It presents no observable manifestation of Vasquez's subjective belief at that time. Viewed in the light most favorable to Vasquez, the evidence shows that, after Vasquez fired shots into the air, Walker, who was larger than Vasquez, ran toward him to disarm him, and Vasquez shot Walker three times as they fought over Vasquez's gun.
No evidence suggests that Walker did or said anything that could have caused Vasquez to fear that Walker would use or attempt to use deadly force against him.  And every witness who testified about the events leading up to the shooting agreed that Vasquez was the aggressor, that Walker did not engage with him—verbally or physically—until after being assaulted, and that Walker never used more force than necessary to prevent Vasquez from harming Walker or his family. See Vaughn v. State, Nos. 03-10-00510-CR, 03-10-00511-CR, 2011 Tex. App. LEXIS 5037, 2011 WL 2621327, at *6 n.5 (Tex. App.—Austin July 1, 2011, no pet.) (mem. op., not designated for publication) (evidence that defendant was aggressor, and "went so far as to pull a knife on [complainant] when there is no evidence that [she] had a weapon or threatened [him] with a weapon provides further support for the conclusion that [defendant]'s violent actions were not the result of his apprehension or fear." (citations omitted)).
Without more, this record presents no evidence that Vasquez believed (and reasonably so) that shooting Walker was immediately necessary to protect himself from deadly force. See e.g., Morin v. State, No. 14-17-00080-CR, 2018 Tex. App. LEXIS 5876, 2018 WL 3625290, at *2 (Tex. App.—Houston [14th Dist.] July 31, 2018, no pet.) (mem. op., not designated for publication) (testimony that complainant had been "wielding around a very large knife" not evidence of defendant's subjective intent, where there was "no evidence that the [complainant] made any threats" against him); Alexander v. State, No. 03-14-00290-CR, 2016 Tex. App. LEXIS 531, 2016 WL 286385, at *4 (Tex. App.—Austin Jan. 21, 2016, pet. ref'd) (mem. op., not designated for publication) (evidence that complainant "was 'very angry' and 'upset' during the altercation" and that she bit defendant's arm, cut his lip, punched him, and caused him to bleed did not "establish anything regarding [defendant]'s state of mind during the altercation"); Campbell v. State, No. 09-02-054CR, 2003 Tex. App. LEXIS 4055, 2003 WL 21034610, at *2 (Tex. App.—Beaumont May 7, 2003, pet. ref'd) (not designated for publication) (testimony showing "violent nature of the victim and his heavy drinking habits" was "absolutely no evidence as to the state of mind of [defendant] when he stabbed the victim"); cf. Smith, 676 S.W.2d at 586 (defendant's statement that he did not want to fight was evidence of his state of mind); VanBrackle, 179 S.W.3d at 714 (cry for help was an "observable manifestation" of defendant's state of mind). 
Because no evidence raised an inference that Vasquez reasonably believed that it was immediately necessary to shoot Walker to protect himself from deadly force, the trial court did not err in refusing to instruct the jury on self-defense.
We affirm the trial court's judgment.
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
1. Vasquez makes no argument that his use of force was necessary to prevent the commission of an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. See Tex. Penal Code § 9.32(a)(2)(B).
2. Vasquez also asserts that evidence that he called 911, remained "near the scene," and "surrendered to authority" shows that he felt "justified" in shooting Walker. But none of this evidence shows Vasquez's state of mind when he shot Walker. See Trammell v. State, 287 S.W.3d 336, 342 (Tex. App.—Fort Worth 2009, no pet.) ("[E]vidence of events that occurred after the shooting cannot support [defendant]'s requested self-defense instruction because such evidence does not relate to [defendant]'s alleged belief that force was necessary at the time he acted."); see also Ivy v. State, No. 07-15-00023-CR, 2016 Tex. App. LEXIS 11244, 2016 WL 6092524, at *3 (Tex. App.—Amarillo Oct. 17, 2016, no pet.) (mem. op., not designated for publication) (witness's testimony indicated "at best" only "the state of mind of [defendant] an hour or so after the incident").