TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00069-CR
Freddy Uceta, Appellant
v.
The State of Texas, Appellee
FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 75816, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Freddy Uceta of the second-degree felony offense of aggravated
assault with a deadly weapon, a razor blade. See Tex. Penal Code § 22.02(a)(2). After finding
an enhancement paragraph to be true, the jury assessed punishment at sixty-five years’
imprisonment. See id. §§ 12.32(a), .33(a). The district court rendered judgment on the verdict.
On appeal, Uceta contends that the district court erred by refusing his requested jury instruction
on self-defense, that there was insufficient evidence that he used a deadly weapon, and that his
custodial statement made without Miranda warnings should have been excluded. We will affirm
the district court’s judgment of conviction. BACKGROUND
Uceta’s aggravated-assault charge stemmed from his attack on Detrick Dortch
when they were both inmates at the Bell County Jail.1 Jail guard David Guerra testified that on
the night of the offense, he was preparing to place inmates in their cells before “lights out” and
allowing them to use the restroom in the dorm area. Dortch was alone at a urinal in the restroom
and stood facing the wall. Uceta approached Guerra and said that he needed to use the restroom.
When Uceta went into the restroom, Guerra heard no words exchanged between the inmates but
saw Uceta walk up behind Dortch and begin “hitting” his back and the back of his head. Guerra
attempted to separate the inmates and to “peel [Uceta] off of” Dortch, but Uceta “continued to
strike” Dortch as “his arms were flailing around.” Guerra testified that Uceta “didn’t look like
he was holding back” or showing “any restraint” during the assault. When the inmates were
eventually separated, Guerra placed Uceta in hand restraints.
Events leading to the restroom attack were captured on a jail video that was
admitted into evidence without objection. The video shows Uceta dancing in a common area
outside the restroom, speaking to a jail guard, and then entering the restroom less than a minute
after Dortch did. A portion of the restroom’s interior is visible through the open restroom door.
Jail staff rush into the restroom shortly after Uceta enters it, and through the doorway they are
seen trying to remove Uceta from Dortch. Later, jail staff escort Dortch and Uceta separately
from the restroom.
Corporal Eddie Booth arrived at the scene as Dortch was being led out of the
restroom. He saw that Dortch sustained injuries to his back, torso, and both sides of his face and
1 Uceta was jailed pending trial for an unrelated offense, for which he was convicted. See Uceta v. State, No. 03-18-00506-CR, 2019 Tex. App. LEXIS 9640, at *15 (Tex. App.— Austin Nov. 5, 2019, pet. ref’d) (mem. op., not designated for publication). 2 was “bleeding profusely.” Corporal Booth noticed that those injuries “didn’t look like they had
come from a fight” with fists but “looked more like he had been sliced with a knife, or razor
blade.” Uceta did not have any visible injuries. Photographs of Dortch’s injuries were admitted
into evidence and showed that Dortch had a cut on his face going from his right ear to within an
inch of his eye; another cut on his shoulder that continued horizontally across his arm; and three
cuts on his back ranging from about three and a half to sixteen inches long, with one cut that
went from his back up to his neck. Corporal Booth testified that the cuts to Dortch’s back were
“the most severe” in “length and depth” and that those injuries, if inflicted on his throat, could
have caused serious bodily injury or death. He also testified that the injury near Dortch’s eye if
it continued into his eye, could have blinded him.
A jail nurse treated Dortch’s injuries by cleaning the wounds, using pressure to
stop the bleeding, and applying “glue or Steri-strips” instead of stitches or sutures to close the
wound that went from Dortch’s ear to his eye. She stated that the cuts on Dortch’s back “were
superficial but the ones on the face area looked deeper.” She opined that a wound to the eye
could have caused a loss of the eye and that a wound to the throat from a razor blade would have
presented a risk of serious bodily injury or death.
Uceta “didn’t seem fearful” at any time, according to Corporal Booth, and Uceta
gave no explanation to him for the attack on Dortch. Corporal Booth searched Uceta for a
weapon, and Uceta produced a razor blade from his mouth. The blade came from one of the
razors provided to inmates for shaving, and it had not been returned as required. Corporal Booth
stated that when removed from the razor, the blade is “flimsy” and “there’s no way to put . . .
extreme amount of force behind it.” He also stated that Dortch’s injuries “weren’t deep enough
to be . . . fatal,” they were “superficial injuries” that did not require hospitalization. Corporal
3 Booth agreed with defense counsel’s suggestion that “the flimsiness of the blade ke[pt] that from
being serious injuries[.]” He testified that if the blade were on a dangerous spot on the body—
like the throat, wrists, or eyes—it could have penetrated enough to damage important organs or
body parts.
After the attack, as Uceta was being placed into a holding cell, Corporal Booth
heard Uceta chanting loudly, “I’m a cut, cut, cutter.” Uceta’s chant was not in response to any
question. Corporal Booth testified that the incident between Uceta and Dortch resulted in a
disciplinary proceeding at the jail. As part of that proceeding, the disciplinary board held a
hearing. Corporal Booth stated that the purpose of a disciplinary hearing is to assess punishment
for a rule violation. When Corporal Booth served Uceta with notice of the disciplinary action
against him, Uceta “kept on saying” that “he was a cold-blooded killer.” Corporal Booth
testified that Uceta’s statement was not in response to any questioning and might have been
made for other inmates to hear.
Shift Sergeant Michael Craft spoke with Uceta and Dortch about what happened.
Outside the presence of the jury, Sergeant Craft testified that before speaking with Uceta, he did
not provide Miranda warnings to him, request an attorney for him, or determine whether Uceta
had an attorney. See Miranda v. Arizona, 384 U.S. 486, 479 (1966) (summarizing warnings).
Sergeant Craft stated that advising an inmate of his rights is “[n]ot typical for an inmate
disciplinary” proceeding and that “[n]obody on the in-house disciplinary is placed under arrest.”
Sergeant Craft noted that the nature of disciplinary hearings is administrative, rather than
criminal, and that when he spoke with Uceta, Uceta “had no criminal charges as a result of this
assault.”
4 Sergeant Craft testified that he “was trained to speak to both parties” as part of the
jail’s regular procedure for infractions that are subject to administrative disciplinary proceedings.
He explained that minor infractions result in reports, while fights or assaults result in a
disciplinary hearing with notice of the hearing served to the inmate. Sergeant Craft spoke to
Dortch in the infirmary, and Dortch told him that he and Uceta had a fight that the jail staff “did
not see.” Sergeant Craft then went to a holding cell and spoke with Uceta. Before asking him
anything, he heard Uceta repeatedly chanting the words of a song, “I had to cut him.” Sergeant
Craft asked Uceta what happened, but Uceta only “continued to chant” while smiling, dancing,
and “making hand gestures” like scissors cutting.
During trial, Dortch testified that he was “using the bathroom” and did not see
Uceta before he attacked him. Dortch said nothing to Uceta at the time and did not swing at him
or attack him. Dortch denied any memory of the assault and stated that his first recollection of
that event was ending up in the shower area with a jail guard putting a sheet on his bleeding face.
Dortch showed the jury the permanent scars on his face and shoulder resulting from Uceta’s
attack. Additionally, Dortch testified that he sustained a cut to his right eye—which the nurse
did not notice when treating his other injuries—that he has difficulty seeing out of that eye, and
that he requires glasses because of his eye injury. He acknowledged that he and Uceta were
involved in a “physical confrontation” that occurred “weeks” before this incident, but Dortch had
not seen or had any contact with Uceta during those intervening weeks.
Uceta testified at trial that he assaulted Dortch with a razor “out of anger because
of a prior incident.” Uceta said that he and Dortch had a fistfight in a jail cell four or five days
before the restroom assault and that Dortch hit him while he was unconscious, which “dented”
his face. Uceta stated that he discussed his sexuality openly and, “I was being bullied by Mr.
5 Dortch because I’m a homosexual.” Uceta reported the bullying to jail staff but did not report
the fistfight and did not ask to be moved. Uceta testified that before the assault, he found a razor
blade in a book and kept it instead of turning it in.
On the night of the assault, Uceta retrieved the blade, hid it in his hand, and
waited for Dortch to go into the restroom. Uceta said that while waiting for Dortch, he knew
what he was going to do. He testified that when he saw Dortch, “I felt furious. I felt anger. I
felt in fear of my life.” But on cross-examination, Uceta testified that he planned to attack
Dortch; that he was not worried that Dortch was going to turn around and come at him from the
restroom; that Dortch did nothing while in the restroom to make Uceta think that Dortch was
about to come after him; and that as he entered the restroom door, Dortch said nothing to him
and made no threatening move toward him. Uceta acknowledged that he slashed at Dortch with
the razor blade multiple times, that he swung at Dortch’s back and face, and that he stopped
swinging the razor blade at Dortch only because of the jail guards’ intervention. Uceta also
acknowledged that he was aware of jail-disciplinary procedures, that he could have reported
what happened with Dortch previously, and that jail staff could have disciplined him.
A brief video of Uceta’s hearing before the disciplinary board was admitted into
evidence without objection. On the video, Uceta states that he is guilty of the assault, and then a
board member asks Uceta whether there “was something that happened prior to this.” Uceta
replies, “No.” He adds, “All I want to say is, you got what you deserved, p---y.”
When the evidence closed, Uceta requested a jury instruction on self-defense,
which the district court denied. Additionally, Uceta objected to the inclusion of a deadly weapon
instruction, which the district court overruled. The jury found Uceta guilty of aggravated assault
with a deadly weapon as charged. When the punishment phase concluded, the jury found an
6 enhancement paragraph true and assessed punishment at sixty-five years’ imprisonment. The
district court rendered judgment on the verdict. This appeal followed.
DISCUSSION
No entitlement to instruction on self-defense
In his first issue, Uceta contends that the district court erred by refusing his
requested jury instruction on self-defense. Our review of charge-error issues begins with a
determination of whether error exists in the charge. Price v. State, 457 S.W.3d 437, 440 (Tex.
Crim. App. 2015). “If error exists, we then analyze the harm resulting from the error” to
determine whether reversal is required. Id. In determining harm, we apply separate standards of
review depending on whether the charge error was preserved in the trial court. Marshall v. State,
479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (citing procedure for review of charge-error
complaints set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on
reh’g)). When, as here, the jury-charge complaint was preserved in the trial court, “reversal is
required if there was some harm to the defendant.” Id. at 843.
The Penal Code provides that “[t]he issue of the existence of a defense is not
submitted to the jury unless evidence is admitted supporting the defense.” Tex. Penal Code
§ 2.03(a); Kuhn v. State, 393 S.W.3d 519, 532 (Tex. App.—Austin 2013, pet. ref’d). A
defensive issue is raised by the evidence if there is sufficient evidence to support a rational jury
finding as to each element of the defense. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim.
App. 2020); see Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (noting that
defendant is entitled to instruction on defensive issue that is raised by evidence, whether weak or
strong, unimpeached or uncontradicted, and regardless of credibility of such defense to trial
court). “The defendant bears the burden of showing that each element of the defense has been
7 satisfied.” Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). Accordingly, when
the evidence viewed in the light most favorable to the defendant does not establish the defense,
the defendant is not entitled to an instruction on the issue. Kuhn, 393 S.W.3d at 532.
When “determining whether a defense is supported by the evidence, ‘a court must
rely on its own judgment, formed in the light of its own common sense and experience, as to the
limits of rational inference from the facts proven.’” Id. (quoting Shaw, 243 S.W.3d at 658).
Requiring the evidence to “rationally support a jury finding before a defensive instruction is
required serves to preserve the integrity of the jury as the factfinder by ensuring that it is
instructed as to a defense only when, given the evidence, that defense is a rational alternative to
the defendant’s criminal liability.” Shaw, 243 S.W.3d at 658. “If a jury were instructed as to a
defense even though the evidence did not rationally support it, then the instruction would
constitute an invitation to the jury to return a verdict based on speculation.” Id. “Whether a
defense is supported by the evidence is a sufficiency question reviewable on appeal as a question
of law.” Id.
The Texas Penal Code sets forth the elements of self-defense, providing that “a
person is justified in using force against another when and to the degree the actor reasonably
believes the force is immediately necessary to protect the actor against the other’s use or
attempted use of unlawful force.” Tex. Penal Code § 9.31(a) (emphasis added). “‘Reasonable
belief’ means a belief that would be held by an ordinary and prudent man in the same
circumstances as the actor.” Id. § 1.07(a)(42). Thus, the Penal Code expressly requires some
evidence of the defendant’s reasonable belief that his use of force was immediately necessary to
protect himself from another’s use or attempted use of unlawful force. See id. §§ 1.07(a)(42),
8 9.31(a); Alexander v. State, No. 03-14-00290-CR, 2016 Tex. App. LEXIS 531, at *9 & n.11
(Tex. App.—Austin Jan. 21, 2016, pet. ref’d) (mem. op., not designated for publication).
Uceta contends that the evidence at trial and reasonable inferences from it “would
have allowed a reasonable juror to conclude that Uceta was in fear of being beaten, if not killed
by Dortch if Dortch’s taunts and bullying escalated.” (Emphasis added.) But to meet his burden
of showing entitlement to a self-defense instruction, Uceta had to show some evidence that he
reasonably believed his use of force was immediately necessary to protect himself against
Dortch’s use or attempted use of unlawful force. See Tex. Penal Code § 9.31(a) (emphasis
added). The uncontroverted evidence was that Uceta planned to attack Dortch, that Dortch did
nothing while in the restroom to make Uceta think that Dortch was about to come after him, and
Dortch said nothing to Uceta and made no threatening move toward Uceta as Uceta entered the
restroom door. Although Uceta testified that he felt “furious,” “anger,” and “in fear of [his] life”
when he saw Dortch, no evidence indicated that Dortch used or attempted to use unlawful force
against Uceta at the time of the assault, and Uceta testified that he was not worried about Dortch
turning around and coming at him from the restroom. Cf. id.
Nothing in the record, viewed in the light most favorable to Uceta, would allow a
reasonable factfinder to infer that he had a reasonable belief that his use of force against Dortch
was “immediately necessary” to protect himself against any use or attempted use of unlawful
force by Dortch. See id. §§ 1.07(a)(42), 9.31(a). Because Uceta failed to meet his burden of
showing that every element of self-defense in subsection 9.31(a) was met, we cannot conclude
that the district court erred by refusing Uceta’s requested jury instruction on self-defense. See id.
§ 9.31(a); Jordan, 593 S.W.3d at 343; Juarez, 308 S.W.3d at 404; Kuhn, 393 S.W.3d at 532. We
overrule Uceta’s first issue.
9 Sufficient evidence showing use of deadly weapon during assault
In his second issue, Uceta challenges his conviction by contending that there was
insufficient evidence that he used a “deadly weapon” during the commission of an assault. We
determine whether there is sufficient evidence to support a conviction by considering the
combined and cumulative force of all admitted evidence in the light most favorable to the verdict
and deciding whether, based on that evidence and the reasonable inferences from it, a jury was
rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318-19 (1979); Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Proving a
defendant’s guilt beyond a reasonable doubt does not require disproving every conceivable
alternative to his guilt. Tate, 500 S.W.3d at 413. Direct evidence and circumstantial evidence
are equally probative in a sufficiency review. Id. As the sole judge of credibility and weight to
be attached to the testimony of witnesses, the jury may draw multiple reasonable inferences from
the facts so long as each is supported by the evidence presented at trial. Jackson, 443 U.S. at
326; Tate, 500 S.W.3d at 413. If the record supports conflicting inferences, we presume that the
jury resolved those conflicts in favor of the verdict. Jackson, 443 U.S. at 326; Tate, 500 S.W.3d
at 413.
The Penal Code states, in relevant part, that a person commits aggravated assault
if he commits assault and uses or exhibits a deadly weapon during the commission of the assault.
Tex. Penal Code § 22.02(a)(2). The Penal Code defines a deadly weapon as “(A) a firearm or
anything manifestly designed, made, or adapted for the purpose of inflicting death or serious
bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing
death or serious bodily injury.” Id. § 1.07(a)(17). The Penal Code defines “[s]erious bodily
injury” as “bodily injury that creates a substantial risk of death or that causes death, serious
10 permanent disfigurement, or protracted loss or impairment of the function of any bodily member
or organ.” Id. § 1.07(a)(46). The district court’s charge tracked these statutes when defining the
offense and the terms “deadly weapon” and “serious bodily injury” in the abstract portion of the
charge. In the application paragraph, the court instructed the jury to find Uceta guilty of
aggravated assault with a deadly weapon if it found from the evidence beyond a reasonable
doubt that Uceta “did then and there intentionally, knowingly, or recklessly cause bodily injury
to Detrick Dortch by cutting the said Detrick Dortch with a razor blade, and [Uceta] did then and
there use or exhibit a deadly weapon, to-wit: a razor blade during the commission of said
assault.” See id. § 22.02(a)(2).
When determining whether a weapon is deadly in its manner of use or intended
manner of use, we consider threatening actions by the defendant, including the defendant’s
proximity to the victim, the weapon’s ability to inflict serious bodily injury or death, and the
manner in which the defendant used the weapon. Johnson v. State, 509 S.W.3d 320, 323 (Tex.
Crim. App. 2017). Although the nature of the inflicted wounds is a factor to be considered,
“wounds are not a necessary prerequisite for an object to be a deadly weapon.” Dominique v.
State, 598 S.W.2d 285, 286 (Tex. Crim. App. 1980) (noting that “[t]he most important criteria
was the manner in which the weapon was used”). Either expert testimony or lay testimony may
be sufficient to support a deadly weapon finding. English v. State, 647 S.W.2d 667, 668-69
(Tex. Crim. App. 1983).
Here, Uceta notes that the razor he used to strike Dortch was small, that it was
described as “flimsy” and incapable of bearing an “extreme amount of force behind it” and that
the flimsiness of the blade kept the injuries from being serious ones. However, Uceta
acknowledged that he slashed at Dortch with the razor blade multiple times, swinging at
11 Dortch’s back and face. Uceta was close enough to inflict multiple cuts to Dortch as he stood at
the urinal. There was evidence that Uceta used the razor blade to inflict injury that impaired
Dortch’s eyesight, and the jury saw the permanent scarring to Dortch’s face and shoulder
resulting from Uceta’s use of the blade. Corporal Booth testified that the cuts to Dortch’s back
were “the most severe” in “length and depth” and that those injuries, if inflicted on his throat,
could have caused serious bodily injury or death. A jail nurse stated that she applied “glue or
Steri-strips” instead of stitches or sutures to close the wound that went from Dortch’s ear to his
eye. She opined that a wound to the eye could have caused a loss of the eye and that a wound to
the throat by a razor blade would have presented a risk of serious bodily injury or death. The
jury saw video evidence showing that jail guards intervened shortly after Uceta entered the
restroom, and Uceta acknowledged that he stopped swinging the razor blade at Dortch only
because of their intervention. Further, the razor blade itself was admitted into evidence, and the
jury could observe its characteristics when assessing whether it was a deadly weapon.
We conclude that the evidence at trial, viewed in the light most favorable to the
jury’s verdict, is sufficient to support the jury’s verdict that the razor blade was a deadly weapon
because the manner of its use or intended use by Uceta was capable of causing death or serious
bodily injury. See Barnett v. State, 344 S.W.3d 6, 13 (Tex. App.—Texarkana 2011, pet. ref’d)
(concluding that pocketknife was deadly weapon); see also Byrd v. State, No. 04-08-00313-CR,
2009 Tex. App. LEXIS 4970, at *3 n.1, *11 (Tex. App.—San Antonio July 1, 2009, pet. ref’d)
(mem. op., not designated for publication) (noting that deadly weapon used by inmate during
assault was blade removed from State-issued disposable razor). We overrule Uceta’s second
issue.
12 Admission of statement to Sergeant Craft was harmless
In his third issue, Uceta contends that the district court erred by admitting his
custodial statement to Sergeant Craft after the attack and while Uceta was in a holding cell. The
court overruled Uceta’s objection to Sergeant Craft’s testimony that he asked Uceta what
happened and Uceta said, “I had to cut.” Uceta contends that he was in police custody when he
made his statement to Sergeant Craft and that the statement was inadmissible because he had not
been provided with Miranda warnings. See Miranda, 384 U.S. at 479. Uceta’s complaint is
based on this testimony from Sergeant Craft:
Q And so in terms of this incident we’re talking about you being in the beginning of the investigative stage when you go talk to Mr. Uceta?
A Yes.
Q And when you went to talk to him in the holding cell, what did you say to him?
A I asked him, simply what happened. What did you see what happened, what was your side.
Q All right. And what did he say to you?
A He was kind of chanting the words of a song back and forth “I had to cut him.”
Q Were those the only words that you can remember him saying?
.... Q Did he—was there a period of time that he chanted this song?
A From my recollection he was chanting the song even before I walked up to the cell.
Q Okay. So when you asked him the question, he was already chanting the song?
13 The evidence shows that Uceta was chanting a song, “I had to cut him,” before
Sergeant Craft ever asked him a question. But even if Uceta’s statement to Sergeant Craft
should have been excluded, its admission was harmless. Texas Rule of Appellate Procedure
44.2(a) provides that if there is constitutional error, the reviewing court must reverse the
judgment of conviction unless the court determines “beyond a reasonable doubt that the error did
not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a). Here, the admission of
Uceta’s statement, “I had to cut”—which was the subject of his objection during trial—did not
contribute to Uceta’s conviction or punishment, particularly given the evidence that was
previously presented to the jury showing that Uceta cut Dortch as charged in the indictment.
The day before the jury heard any testimony from Sergeant Craft about Uceta’s
statement, the jury saw the video showing Uceta dancing in a common area outside the restroom,
speaking to a jail guard, entering the restroom less than a minute after Dortch, being separated
from Dortch by jailers, and being escorted from the restroom. The jury heard jail guard Guerra
testify that he saw Uceta walk up behind Dortch and appear to begin “hitting” Dortch’s back and
the back of his head. Corporal Booth noticed that Dortch’s injuries “didn’t look like they had
come from a fight” with fists but “looked more like he had been sliced with a knife, or razor
blade.” After the attack, Uceta produced a razor from his mouth and gave it to Corporal Booth.
As Uceta was being placed into a holding cell, Corporal Booth heard Uceta chanting loudly,
unprompted by any question, “I’m a cut, cut, cutter.”
Further, Uceta himself testified that he assaulted Dortch with a razor “out of anger
because of a prior incident”; that he did not turn in the razor blade when he found it; that he
waited for Dortch; and that he slashed at him with the razor blade multiple times, stopping only
14 because of the jail guards’ intervention. The jury saw a second video from the disciplinary
proceeding, in which Uceta stated, “All I want to say is, you got what you deserved.”
Given the evidence presented to the jury during trial, we conclude beyond a
reasonable doubt that even if there were any error in admitting Uceta’s statement to Sergeant
Craft that he “had to cut,” such error did not contribute to Uceta’s conviction or punishment. See
Tex. R. App. P. 44.2(a). We overrule Uceta’s third issue.
CONCLUSION
We affirm the district court’s judgment of conviction.
__________________________________________ Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Smith
Affirmed
Filed: February 3, 2021
Do Not Publish