Barrios, Rudy Antonio v. State

• Court: Court of Appeals of Texas
• Decided: June 29, 2006
• Docket: 14-05-00385-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 29, 2006

Affirmed and Memorandum Opinion filed June 29, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00385-CR

RUDY ANTONIO BARRIOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 971,524

M E M O R A N D U M   O P I N I O N

            Appellant Rudy Antonio Barrios was convicted of murder and sentenced to twenty-three years’ confinement.  In two issues, appellant claims that the trial court erred in denying his request for a defense-of-third-person instruction and that he received ineffective assistance of counsel.  We affirm.

Factual and Procedural Background

            On December 15, 2003, Juan Arriaga, the victim, lived in a Houston apartment with brothers Gerardo and Luis Garcia.  The men were apparently involved in a smuggling

scheme involving illegal immigrants, and four immigrants were also staying in the apartment.  Among these immigrants were appellant’s cousin and his cousin’s wife, Glenda Reyes.  A couple of days after Reyes and her husband arrived in Houston, appellant drove from Austin to retrieve them for a $3,200 fee.  Although accounts vary of the events following appellant’s arrival, it is undisputed that he shot and killed Arriaga before leaving with his relatives.  He was later apprehended and made a videotaped statement for detectives.

            At trial, Reyes testified that while she stayed in the apartment, the Garcia brothers and Arriaga made unwelcome sexual advances toward her and wanted to rape her.  When appellant arrived, she complained to him about this behavior, and appellant argued with Arriaga about Reyes’s treatment.  After initially agreeing to pay Arriaga, appellant used the restroom, briefly went outside, and then returned and told Arriaga he would not pay because of Reyes’s treatment.  Arriaga said he could not take his relatives without paying.  They continued to argue, and Arriaga “got upset” and approached appellant, who was standing by Reyes.  Appellant pulled out his gun and shot Arriaga.

            The State admitted appellant’s videotaped statement.  In his statement, appellant said that when he arrived at the apartment, Reyes told him Arriaga had “wanted to lie with [her] by force.”  This “bothered” appellant, so he went outside to his car and retrieved his gun.  He claimed he then paid Arriaga $3,200 and argued with him about Reyes’s treatment.  When appellant said he and his relatives were leaving, Arriago refused to let them take Reyes’s belongings.  Appellant then took out his gun.  Arriaga approached him and struggled for the gun, which fired and killed Arriaga.  However, detectives told appellant they had interviewed his cousin, who said appellant shot Arriaga because he could not pay for Reyes and him.  Appellant then admitted he shot Arriaga because he “didn’t have the money and [he] knew they were going to send them back.”  Appellant explained that “[he] told [Arriaga] that [he] was going to take them and [Arriaga] said no.”  Consequently, appellant took out his gun, and Arriaga got “closer and closer,” so appellant shot him.

            At the charge conference, appellant requested a jury instruction on defense of a third person, which the trial court denied.[1]  Appellant timely objected to the denial of his request.  The jury convicted appellant, and this appeal followed.

Analysis

A.  Jury Instruction on Defense of a Third Person

            In his first issue, appellant claims the trial court erred in denying his request for a jury instruction on defense of a third person.  “A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted . . . .”  Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997).  The defendant’s testimony alone may be sufficient to raise a defensive theory requiring an instruction.  Id.  When a defendant uses deadly force and claims defense of a third person, he must show (1) under the circumstances as he reasonably believed them to be, the third person would be justified in using deadly force to protect himself and (2) the defendant reasonably believed that his intervention was immediately necessary to protect the third person.  Tex. Penal Code Ann. § 9.33 (Vernon 2003).

            Appellant argues he was entitled to a defense-of-third-person instruction because he argued with Arriaga about the men’s behavior toward Reyes, Arriaga refused to let him take his relatives, and Reyes was standing by him when he shot Arriaga.  We disagree.  The evidence does not show that immediate intervention was necessary.  The behavior about which Reyes complained occurred before appellant arrived.  Regardless of his earlier behavior toward Reyes, Arriago was unarmed when appellant shot him and was not threatening to use deadly force to kidnap or sexually assault Reyes.  Moreover, although Reyes was standing by appellant when he shot Arriaga, Arriaga was arguing with appellant, not threatening Reyes.  Thus, appellant’s use of deadly force to defend Reyes against Arriaga was unjustified.  See id. § 9.32(a)(3) (Vernon 2003).  Rather, the evidence shows Arriaga told appellant he could not take Reyes and her husband without paying, and appellant feared they would be taken back across the border.  This evidence does not raise a defense-of-third-person issue.  We overrule appellant’s first issue.

            B.  Ineffective Assistance of Counsel

            In his second issue, appellant claims he received ineffective assistance of counsel.  Specifically, he argues that counsel should have requested a mitigation instruction on sudden passion during the punishment phase of trial.  Ineffective assistance claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984).  To prove ineffective assistance, appellant must show (1) that counsel’s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel’s deficient performance.  Id. at 687–96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.  Salinas, 163 S.W.3d at 740.  To defeat this presumption, “‘any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.’”  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

            Appellant argues the record contains “plenty of evidence” to support a jury instruction on sudden passion.  “‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed . . . [that] arises at the time of the offense and is not solely the result of former provocation.”  Tex. Penal Code. Ann. § 19.02(a)(2) (Vernon 2003).  Before a defendant is entitled to a sudden passion instruction, he must prove adequate cause for his passion.  See McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005).  Adequate cause is that which “would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”  Tex. Penal Code. Ann. § 19.02(a)(1).  In the punishment phase of trial, “a sudden passion charge should be given if there is some evidence to support it, even if that evidence is weak, impeached, contradicted, or unbelievable.”  Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003).  However, the evidence “cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury.”  McKinney, 179 S.W.3d at 569 (citing Trevino, 100 S.W.3d at 238).

            In this case, appellant points to evidence that after hearing Reyes’s story, he got his gun “in less than 5 minutes” and shot Arriago as they argued.  However, Reyes’s and appellant’s testimony established that after appellant learned of Reyes’s treatment, he used the restroom and retrieved the gun from his car before returning to argue with Arriaga.  This indicates he had time to deliberate his actions and was not acting under the influence of sudden passion.  See id. at 570 (finding no sudden passion where the “[a]ppellant’s testimony indicates that he had time to deliberate over his actions”).  Appellant also notes that he told detectives, “I did things yesterday that, that—I don’t know—it was crazy, I don’t know, I got mad, I wasn’t thinking.”  These statements fail to show his mind was incapable of cool reflection.  See id. (rejecting sudden passion claim when victim only yelled at the appellant and pushed him, as those actions were insufficient to render the appellant’s mind incapable of cool reflection).  Further, the treatment about which Reyes complained occurred before appellant arrived and thus constitutes former provocation.  See Tex. Penal Code Ann. § 19.01(a)(2) (prohibiting former provocation as sole justification for sudden passion).  Finally, appellant admitted to detectives the reason he shot Arriaga was that he could not pay for his relatives and did not want them sent back across the border.  In sum, the evidence does not support a sudden passion instruction, and we cannot conclude that counsel was ineffective for failing to request it.  See Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (finding no error in counsel’s failure to request defensive instruction to which the appellant was not entitled).  Accordingly, we overrule appellant’s second issue.

            We affirm the trial court’s judgment.

                                                                        /s/        Leslie Brock Yates

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed June 29, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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

---

^[1]  In denying appellant’s motion, the trial court explained that “the actions of the defendant to leave the apartment, to retrieve the gun, to return and then to use the gun in the fashion that he described in the testimony, both in his statement and the testimony of the witness, I believe precludes his use of self-defense under the statute.”