Benny Cavazos Valverde v. State

Opinion

ACCEPTED 04-14-00338-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/1/2015 10:55:29 AM KEITH HOTTLE CLERK No. 04-14-00338-CR

IN THE COURT OF APPEALS FOR THE FILED IN FOURTH JUDICIAL DISTRICT OF TEXAS, AT SAN ANTONIO 4th COURT OF APPEALS SAN ANTONIO, TEXAS 6/1/2015 10:55:29 AM Benny Cavazos Valverde KEITH E. HOTTLE Clerk Appellant

v.

The State of Texas Appellee

On Appeal in Case Number 2012CR3980, from the 290th District Court of Bexar County, the Hon. Melisa Skinner, Judge Presiding

Brief on Appeal Submitted by:

John G. Jasuta David A. Schulman Attorney at Law Attorney at Law State Bar Card No. 10592300 State Bar Card No. 17833400 lawyer1@johnjasuta.com zdrdavida@davidschulman.com

1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282

Attorneys for Benny Cavazos Valverde

Oral Argument Not Requested Identity of Parties and Counsel Pursuant to Rule 38.1(a), Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following is a complete list of the names and addresses of all parties to the trial court’s final judgment and their counsel in the trial court, as well as appellate counsel, so the members of the Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case and so the Clerk of the Court may properly notify the parties to the trial court’s final judgment or their counsel, if any, of the judgment and all orders of the Court of Appeals.

Appellant Benny Cavazos Valverde TDCJ No. 1924413 Wallace Pack Unit 2400 Wallace Pack Road Navasota, Texas 77868 Trial Counsel Appellate Counsel Michael Sawyer David A. Schulman SBN 17693800 SBN 17833400 Kirk Sherman John G. Jasuta SBN 18243600 SBN 10592300 1111 Quintana Road 1801 East 51st St, Ste 365-474 San Antonio, Texas 78211 Austin, Texas 78723

State of Texas Nicholas “Nico” Lahood Criminal District Attorney 300 Dolorosa Street San Antonio, Texas 78205 Trial Counsel Appellate Counsel Wendy Wilson-Ortiz Laura E. Durbin SBN 240003241 SBN 24068556 Alaina Altis SBN 24006756

i Table of Contents

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Use of Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Point of Error Restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Evidence to Sustain the Conviction is Insufficient, Because the Evidence Supporting the Jury's Rejection of Appellant's Self-Defense Claim is Insufficient.

Facts Relevant to Point of Error. . . . . . . . . . . . . . . . . . . . . . . . 4

Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Argument & Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . 12

Certificate of Compliance and Delivery. . . . . . . . . . . . . . . . . . 13

i Index of Authorities

Federal Cases:

Jackson v. Virginia, 443 U.S. 307 (1979).. . . . . . . . . . . . . 6-8

Texas Cases:

Allen v. State, 253 S.W.3d 260 (Tex.Cr.App. 2008). . . . . . . . . 6

Brooks v. State, 323 S.W.3d 893 (Tex.Cr.App. 2010). . . . . 6, 7

Clayton v. State, 235 S.W.3d 772 (Tex.Cr.App. 2007).. . . . . . 8

Hooper v. State, 214 S.W.3d 9 (Tex.Cr.App. 2007). . . . . . . 7, 8

Lancon v. State, 253 S.W.3d 699 (Tex.Cr.App. 2008).. . . . . 10

Miranda v. State, 350 S.W.3d 141 (Tex. App. - San Antonio 2011) . . . . . . . . . . . . . . . . . . . . 7

Morales v. State, 357 S.W.3d 1 (Tex.Cr.App. 2011).. . . . . . . . 6

Saxton v. State, 804 S.W.2d 910 (Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10

Zuliani v. State, 97 S.W.3d 589 (Tex.Cr.App. 2003). . . . . . 5, 6

ii Use of Abbreviations

In this brief, Appellant’s references to the Amended Clerk’s

Record are “ACR” - e.g. (ACR 24), while the Reporter’s Record is

referred to as “RR” - e.g. (RR Vol. 3, PP. 122, 133).

Statement of the Case

The following is a brief general statement of the nature of the

cause or offense:

On May 23, 2012, a grand jury indicted Appellant with one count of murder alleged to have occurred on September 4, 2011 (ACR 24), and the State filed notice of its intent to enhance punishment on February 19, 2013 (ACR 37-38). Appellant having elected to have the trial court assess punishment if he were found guilty, trial began on February 11, 2014 (RR Vol. 3, P. 1), and the jury received the case on February 13, 2014 (RR Vol. 3, P. 1). After the jury announced it was unable to reach a unanimous verdict (ACR 119), the trial court sequestered the jury overnight (RR Vol. 5, P. 164). The jury resumed deliberations and returned a guilty verdict on Friday, February 14, 2014 (RR Vol. 6, P. 6).

Appellant pled true to the enhancement allegation (RR Vol. 7, P. 9), and was sentenced to confinement for a period of thirty [30] years, with no fine, judgment of conviction being entered on March 20, 2014 (ACR 130). The trial court certified Appellant retained the right to appeal that same date (ACR 126).

iii Appellant filed a Motion for New Trial on April 15, 2014 (ACR 132), and Notice of Appeal on April 17, 2014 (ACR 134). The trial court held a hearing on Appellant’s motion for new trial on May 5, 2014, and summarily overruled the motion (Vol. 9, P. 54).

Issues Presented

The following are the points upon which this appeal is

predicated:

The Evidence to Sustain the Conviction is Insufficient, Because the Evidence Supporting the Jury's Rejection of Appellant's Self-Defense Claim is Insufficient.

iv No. 04-14-00338-CR IN THE COURT OF APPEALS FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS, AT SAN ANTONIO Benny Cavazos Valverde, Appellant v. The State of Texas, Appellee On Appeal in Case Number 2012CR3980, from the 290th District Court of Bexar County, the Hon. Melisa Skinner, Judge Presiding

Brief on Appeal TO THE HONORABLE FOURTH COURT OF APPEALS:

COMES NOW, Benny Cavazos Valverde, Appellant in the

above styled and numbered cause, by and through David A.

Schulman and John G. Jasuta, his undersigned attorneys of

record, and respectfully files this “Brief on Appeal,” and would

show the Court as follows:

Statement of Facts

Mike’s Tavern is a neighborhood pub on Culebra Road, in San

Antonio, which by the accounts of all the witnesses at trial, caters

1 to an older clientele (RR Vol. 3, PP. 122, 133; Vol. 4 PP. 34, 118,

242, 271). Appellant was a regular at the bar, whereas the

deceased, David Ramirez, was not (RR Vol. 3, P. 20).

The deceased entered the tavern around 11 p.m., and

immediately began exhibiting a particularly “ugly” and belligerent

attitude (RR Vol. 3, P. 115; Vol. 4, PP. 17, 39, 126, 134, 191).

When he arrived, the deceased was already intoxicated (RR Vol. 3,

PP. 139, 153), and post-mortem toxicology test revealed his blood

alcohol concentration was .127 and “still rising” (RR Vol. 4, PP. 93,

94).

Tavern personnel twice told the deceased they would escort

him out if he did not calm down (RR Vol. 3, PP. 164-165).

Nevertheless, he continued to make rude demands, but directed

his most vile and derisive remarks towards Appellant, an old

childhood acquaintance (RR Vol. 4, PP. 20, 41, 44, 132-138, 185,

203, 249). Appellant asked the deceased no less than three (3)

times to go drink elsewhere in the bar (RR Vol. 4, PP. 21, 23, 46,

138, 248], but he insisted on continuing to stand right next to

2 Appellant, with only one man, Alvino Medellin, between them 9RR

Vol. 3, PP. 119, 179; Vol. 4, PP. 20, 127, 199).

The deceased’s behavior become more obnoxious, and,

ultimately, he peered around Medellin and threatened Appellant

by stating, “When I’m done with this beer, I have something for

you” (RR Vol. 4, PP. 156, 169, 259). The deceased then pointed

downward towards his waistband, where Appellant saw a distinct

bulge (RR Vol. 4, PP. 169, 259, 262). The deceased made this

verbal threat and gesture no less than three (3) times (RR Vol. 4,

PP. 260).

As the deceased emptied his beer, Appellant noticed that the

deceased “was going for that gun” (RR Vol. 4, PP. 263, 264). Acting

while in fear of serious bodily injury or death, Appellant grabbed

the deceased in something of a “bear hug” and reached for the

bulge (RR Vol. 4, PP. 264-266, 292). When he reached for the

bulge, Appellant discovered the deceased did, in fact, possess a

firearm and was trying to pull it out of his waist band (RR Vol. 4,

PP. 266, 293).

3 A brief struggle over the weapon ensued and the firearm

discharged, causing a contact wound a just beneath the

deceased’s left nipple (RR Vol. 4, P. 83-85), resulting in the

deceased’s heart being severely damaged (RR Vol. 4, P. 90). Images

taken at the scene depict complainant on the ground with an

empty or nearly empty beer bottle still clutched in his right hand

(RR Vol. 4, P. 41).

Point of Error Restated

The Evidence to Sustain the Conviction is Insufficient, Because the Evidence Supporting the Jury’s Rejection of Appellant’s Self-Defense Claim is Insufficient

Facts Relevant to Point of Error

There was no dispute but that when the deceased, David

Ramirez, entered Mike’s Tavern on the night in question, he was

very intoxicated and he using abusive language towards the staff

and other patrons. Similarly, it was not disputed that he was

extremely rude to Appellant, calling him several different

derogatory names in Spanish. There was never a dispute about

the shooting itself, as it was clear that there was a physical

4 struggle and a shooting, with Appellant emerging and the

deceased falling to the floor.

Summary of the Argument

The jury’s implied rejection of Appellant’s self-defense claim

was based on pure speculation, as it was completely unsupported

by the evidence.

Argument & Authorities

Upon raising a defense to prosecution, such as self-defense,

a defendant bears the burden of producing some evidence which

supports the claimed defense. Zuliani v. State, 97 S.W.3d 589,

594 (Tex.Cr.App. 2003); Saxton v. State, 804 S.W.2d 910, 913

(Tex.Cr.App. 1991). Once the defendant produces such evidence,

the burden shifts to the State, which bears the burden of

persuasion “to disprove the raised defense.” Zuliani, 97 S.W.3d at

594; Saxton, 804 S.W.2d at 913-914.

5 To prevail on a claim of self-defense, a defendant must prove

that:

Ø he would have been justified in using force against the other person, and

Ù it was reasonable to believe that “deadly force [was] immediately necessary [for protection] against the other’s use or attempted use of unlawful deadly force.

Morales v. State, 357 S.W.3d 1, 7 (Tex.Cr.App. 2011). The

burden of persuasion does not require the production of evidence,

but it does require the State to persuade the jury beyond a

reasonable doubt that the defendant did not act in self-defense.

Allen v. State, 253 S.W.3d 260, 267 (Tex.Cr.App. 2008); Zuliani,

97 S.W.3d at 594. A jury verdict of guilt is an implicit finding

against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton,

804 S.W.2d at 914.

The legal sufficiency standard set out in Jackson v. Virginia,

443 U.S. 307 (1979), “is the only standard that a reviewing court

should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is

6 required to prove beyond a reasonable doubt.” Brooks v. State,

323 S.W.3d 893, 895 (Tex.Cr.App. 2010). Because the State

carries the burden of persuasion to disprove self-defense beyond

a reasonable doubt, the appellate court reviews a challenge to the

sufficiency of the evidence supporting a jury’s rejection of a claim

of self-defense under the Jackson standard. Brooks, 323 S.W.3d

at 895; see also Miranda v. State, 350 S.W.3d 141, 147 (Tex.

App. - San Antonio 2011).

In evaluating sufficiency of the evidence under the Jackson

standard, an appellate court reviews all the evidence in the light

most favorable to the trial court’s judgment to determine whether

any rational jury could have found the essential elements of the

offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 912

(citing Jackson, 443 U.S. at 319). The reviewing court examines

legal sufficiency under the direction of the Brooks opinion while

giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper

7 v. State, 214 S.W.3d 9, 13 (Tex.Cr.App. 2007), citing Jackson,

443 U.S. at 318-319; see also Clayton v. State, 235 S.W.3d 772,

778 (Tex.Cr.App. 2007). Appellant submits that, even viewing all

of the evidence in the light most favorable to the jury's rejection of

self-defense, it is clear that a rational fact finder could not have

found beyond a reasonable doubt against Appellant on the

self-defense issue.

! While there is evidence that the deceased was demanding and disrespectful to the tavern’s staff, there is no evidence that the deceased was not demanding and disrespectful to the tavern’s staff.

! While there is evidence that the deceased continually insulted Appellant with derogatory remarks, there is no evidence that the deceased did not direct derogatory remarks towards Appellant, and there is no evidence that Appellant directed derogatory remarks towards the deceased.

! While there is evidence that the deceased threatened Appellant, there is no evidence that the deceased did not threaten Appellant, and there is no evidence that Appellant threatened the deceased.

! While there is evidence that the deceased initiated the altercation leading to his death, there is no evidence indicating that he did not initiate the altercation and there is no evidence that Appellant initiated it.

8 ! While there was evidence that the deceased was carrying the gun from which the fatal bullet was fired, there is no evidence that the deceased was not carrying the gun and there is no evidence that Appellant was carrying the gun.

The State’s theory was that it was Appellant, rather than the

deceased, who was angry that night, that Appellant carried a gun

into the tavern that night, and that Appellant “carried a gun on his

person in that bar on a regular basis” (RR Vol. 5, PP. 142-143).

The State’s claims, however, are without any evidentiary support.

There is no evidence that Appellant harbored or directed any

anger toward the deceased. Moreover, the State conceded that

“nobody” saw the defendant with a gun (RR Vol. 5, P. 143).

Additionally, the record is devoid of any evidence that Appellant

ever carried a gun into Mike’s Tavern. This was not a case of

competing evidence, some supportive of the self-defense claim and

some not. Rejection of the evidence supporting the self-defense

claim would leave nothing supporting a finding of guilt.

The only evidence before the jury demonstrated a series of

threats to initiate deadly violence by the deceased, and a self-

9 defensive reaction to the immediate threat by Appellant. This

evidence was never overcome by the State and, therefore, the

State’s factually unsupported argument cannot serve as the basis

of rejection of self defense.

Appellant acknowledges that the jury was free to accept or

reject the defensive issue. Lancon v. State, 253 S.W.3d 699, 707

(Tex.Cr.App. 2008); Saxton, 804 S.W.2d at 913-914. In this case,

however, there was no evidence which the jury could believe

instead of the evidence that Appellant acted in self-defense.

Taking away Appellant’s testimony, the evidence would only

show that one man, the deceased, was demanding of and

disrespectful to the tavern's staff, there is no evidence that the

deceased was not demanding and continually insulted another

man, Appellant, with derogatory remarks. The evidence showed

that the two men got into a physical struggle, a gun discharged

and the deceased was killed. Taking away Appellant’s testimony,

there would be nothing whatsoever showing who initiated the

struggle and who brought the gun into the tavern.

10 With or without Appellant’s testimony, it would be pure

conjecture to believe that Appellant brought the gun into the

tavern. The State produced no evidence supporting the allegations

in the indictment, other than there was a struggle and one man

ended up dead. The State produced no evidence of any aggressive

actions by Appellant and no evidence that Appellant brought the

gun which caused David Ramirez’s death into the tavern.

Conclusion

A rational fact finder could not have found beyond a

reasonable doubt against Appellant on the self-defense issue.

Consequently, the evidence to sustain the conviction is

insufficient, and Appellant is entitled to an acquittal.

Prayer

WHEREFORE, PREMISES CONSIDERED, Benny Cavazos

Valverde, Appellant in the above styled and numbered cause,

respectfully prays that this Honorable Court will review this brief,

and, upon submission of the case to the Court, will vacate the

11 Judgment of the court below and will remand this case to that

court for a new trial.

Respectfully Submitted:

____________________________________ ___________________________________ John G. Jasuta David A. Schulman Attorney at Law Attorney at Law State Bar Card No. 10592300 State Bar Card No. 17833400 lawyer1@johnjasuta.com zdrdavida@davidschulman.com

1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282

Statement Regarding Oral Argument

Oral Argument is Not Requested.

12 Certificate of Compliance and Delivery

This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 1,915 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

June 1, 2015, a true and correct copy of the above and foregoing

“Brief on Appeal” was transmitted via the eService function on the

State’s eFiling portal, to Laura Durbin (laura.durbin@bexar.org),

counsel of record for the State of Texas

______________________________________ David A. Schulman