Joel Cisneros v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ JOEL CISNEROS, No. 08-09-00096-CR § Appellant, Appeal from § v. 120th District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC # 20070D05189) §

OPINION

Joel Cisneros was charged by indictment with aggravated assault with a deadly weapon. The

jury returned a verdict of guilty and assessed punishment at five years’ imprisonment. For the

reasons that follow, we affirm.

FACTUAL SUMMARY

The record reveals the following accounts of the assault in question. Gail Cornwell was

partying with Ricky and Kenny Hunt during the night and morning of the incident. She was in the

home of Ausencio Casas when Ricky and Kenny walked in. Ricky approached Gail and tore her

shirt. Ausencio intervened. Gail went into the kitchen and heard a scuffle break out in the living

room. Ricky and Kenny then left the house. Gail returned to the living room and saw Ausencio

standing by the door. He left the house and Gail drove away in her car.

Ausencio Casas is Appellant’s father-in-law. On June 18, 2007, Gail Cornwell was at his

house. Around 4 or 5 in the evening, Ricky and Kenny Hunt showed up. Ricky immediately went

to Gail and grabbed her by the shirt collar and said, “You’re coming with us, bitch.” Ausencio got

in between the two and was “spanked around a bit.” After Kenny and Ricky left, Ausencio grabbed his cane and went after them. He caught up with them approximately two blocks from his house.

Ausencio and Ricky then got into another altercation. During the altercation, Ausencio heard a car

slam on its brakes and a door open. He then heard Appellant’s voice. When Appellant jumped out

of the vehicle, Ricky took a step or two toward him and planted himself in a linebacker position

ready to tackle. Ausencio next recalled that Ricky went down to the ground. Ausencio saw a pistol

and as Ricky went down, Ricky knocked Appellant’s right hand into the weapon and the weapon

discharged into the ground. Ausencio then got back into the car with Appellant and drove to

Appellant’s house. According to Ausencio, only one shot was fired.

Maria Carter was standing in her driveway when she noticed two black men walking and

laughing on her street. She then saw a dark, navy blue SUV come to a screeching halt near the two

men. Appellant looked out of the window yelled to the two men, “What are you being funny? Is this

funny?” The two black men were not armed or carrying anything. Appellant then got out of the car

and went after one of the men. Appellant grabbed him by the shirt collar and “dragged him to the

middle of the street and he was pound-fisting him with a closed-fist hand.” The man was on the

ground on his back. Appellant was pounding him with his fist in the face. The man on the ground

was trying to prevent Appellant from hitting him.

Maria observed two other passengers in the SUV--a woman and another Hispanic male. The

male came around the back with a golf club in his hand and began swinging it. He hit the man on

the ground with the golf club a couple of times. Appellant then moved into the driver’s side and

pulled a revolver out of the car. He appeared to be trying to shoot the man on the ground in the head.

The first shot went awry. Appellant shot twice more, with one of the shots striking a neighbor’s car.

Maria heard a total of four shots. The two black men were not armed at any point. When the firing

stopped, Appellant let the man go. Appellant stood in his car and told Maria and her husband, “Yeah, what are you going to do?” Appellant still had his gun in his hand. Appellant then drove

away with the other Hispanic male and the woman. Maria called 911but Appellant left the scene

before the police arrived.

Donnice Carter, Maria’s husband, testified he was in his backyard when his wife called,

“They’re shooting. They’re firing out here.” Donnice went to his front yard and heard three shots.

The shots sounded like they came from a large caliber gun. He saw the SUV headed east on

Dearborne Street moving at a slow pace.

Araceli Turner noticed an argument in the middle of her street. A vehicle stopped and she

heard yelling. An Hispanic male, the driver of the vehicle, confronted a black man walking in the

street. Araceli could only recall that the driver was standing over the body of the black man, fighting

with him on the ground. At that point, another gentleman came out of the vehicle with a shiny

object. Araceli then saw the driver with a gun shooting in the direction of the black man.

Sandrine Patton was in the Carters’ driveway picking up her children on the night of the

incident. She noticed two gentlemen walking down the street and then she heard tires screeching.

Three individuals jumped out of the vehicle, two males and a female. The driver, identified as

Appellant, said something to the two black men and then ran up and started beating on one of them.

Sandrine turned to say something to her children, and then she heard gunshots. She called 911.

Appellant, the other Hispanic male, and the female then got back into the vehicle and drove by in

a slow, intimidating manner. Appellant asked her, “What are you looking at? What are you going

to do?”

CHARGE ERROR

Appellant brings eleven issues for review complaining of charge error. Charge error is

reviewed on appeal by determining whether error occurred, and if so, whether that error caused sufficient harm to require reversal. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App.1996).

The degree of harm necessary for reversal depends on whether the error was preserved. Id. at 171.

Preserved error will require reversal provided the error is not harmless, meaning any harm present

requires reversal. Id. When error is not preserved, egregious harm must be shown. Id. Egregious

harm affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects

a defensive theory. Id. In conducting a harm analysis, the reviewing court may consider the

following four factors: the charge itself; the state of the evidence including contested issues and the

weight of the probative evidence; arguments of counsel; and any other relevant information revealed

by the record. Id.

Threats as Justifiable Force

In Issues One and Two, Appellant complains that the trial court should have given requested

instructions concerning threats as justifiable force. His proposed jury instruction number five read:

The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Proposed jury instruction six read: Now, if you find from the evidence beyond a reasonable doubt that on June 18, 2007 Joel Cisneros did intentionally and knowingly threaten Ricky Hunt with a deadly weapon as alleged, but you further find from the evidence, or have a reasonable doubt thereof, that viewed from the stand point of Joel Cisneros at the time, that the production of the weapon is limited to creating a apprehension that he would use deadly force if necessary, or if you have a reasonable doubt as to whether or not Joel Cisneros produced the weapon for the limited propose of creating an apprehension that he would use deadly force, then you should give Joel Cisneros the benefit of that doubt and say by your verdict ‘Not Guilty’.

Instructions five and six are modeled after Section 9.04 of the Penal Code, which provides:

The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

TEX .PENAL CODE ANN . § 9.04 (Vernon 2003). The State argues that Section 9.04 does not create

a justification or defense independent of the other provisions of Chapter 9. Appellant concedes that

Texas case law does not provide support for his argument.

The San Antonio Court of Appeals has addressed this specific issue in an unpublished

opinion. Smith v. State, No. 04-95-00337-CR, 1997 WL 94151, at *1 (Tex.App.--San Antonio, pet.

ref’d)(not designated for publication). There, the appellant was convicted of aggravated assault. Id.

The trial court granted requested instructions on self-defense, apparent danger, and defense-of- third-

persons. Id. But Smith argued that the court should have given a separate instruction under Section

9.04 because it does not require the actor to retreat before threatening to use deadly force. Id. The

appellate court concluded that Smith had misconstrued Section 9.04. Id. It relied on the statutory

language that “The threat of force is justified when the use of force is justified by this chapter.” Id.

Section 9.04 must incorporate the other sections of Chapter 9 that justify the use of force. In Smith,

the sections incorporated were Sections 9.31 and 9.32 dealing with self-defense. Id; see also Davis

v. State, 22 S.W.3d 638, 640 (Tex.App.--Waco 2000, pet. ref’d)(finding that use of knife was threat of force under Section 9.04 and then using Section 9.31 to see if it was justified); Kirkpatrick v.

State, 633 S.W.2d 357, 358-359 (Tex.App.--Fort Worth 1982, pet. ref’d)(applying Section 9.04 in

conjunction with Sections 9.31 and 9.32).

We agree with the analysis of our sister court. Because Appellant’s requested instructions

based on Section 9.04 were not used in conjunction with other sections of Chapter 9, we must

conclude that the trial court did not commit charge error. We overrule Issues One and Two.

Waiver of Appellate Review

An appellant’s brief must contain a clear and concise argument for the contention made, with

appropriate citations to authorities and to the record. TEX .R.APP .P. 38.1(h); see Torres v. GSC

Enterprises, Inc., 242 S.W.3d 553, 559 (Tex.App.--El Paso 2007, no pet.)(brief must contain clear

and concise argument for contentions made, with appropriate citations to authorities and to the

record); City of Midland v. Sullivan, 33 S.W.3d 1, 10 n.6 (Tex.App.--El Paso 2000, pet. dism’d

w.o.j.)(appellant failed to brief complaint and thus waived appellate review). An appellant waives

error when it does not provide appropriate citations to authorities or to the record. In re M.J.G., 248

S.W.3d 753, 760 (Tex.App.--Fort Worth 2008, no pet.); Torres, 242 S.W.3d at 559. We construe

the Rules of Appellate Procedure liberally, but an appellate court has no duty to search the record

without sufficient guidance from an appellant to determine whether an assertion of reversible error

is valid. In re M.J.G., 248 S.W.3d at 760; Dallas Independent School District v. Finlan, 27 S.W.3d

220, 237 (Tex.App.--Dallas 2000, pet. denied). An appellate court has discretion to find an issue is

waived due to inadequate briefing. Fredonia State Bank v. General American Life Ins. Co., 881

S.W.2d 279, 284 (Tex. 1994).

We reluctantly conclude that Appellant has inadequately briefed Issues Three, Four, Five,

Six, Seven, Eight, and Eleven. His brief does not contain any of the governing principles of self- defense or defense-of-a-third-person. It merely recites the standard of review on instructing the jury

on defensive issues and contains extensive quotations from the record followed by a conclusory

statement that:

All of the foregoing testimony, a large part of which was elicited by the State itself, seen in the light most favorable to the Defense, Wood, 271 S.W.3d at 333, amply supports the giving of Defensive charges relating to Threat of deadly force, Defense of a Third Person, and self Defense, Mistake of Fact, Cain, 549 S.W.2d at 713.

Appellant has wholly failed to identify the elements of self-defense or defense-of-a-third-person, or

to analyze the evidence with respect to these elements.

Nor does Appellant’s brief contain any of the governing legal principles on mistake of fact.

The State correctly points out that Appellant does not identify his mistaken belief, cite to evidence

of his mistaken belief in the record, nor explain how his mistaken belief negated his culpability. His

argument regarding a mistake of fact instruction is purely conclusory.

Issues Seven, Eight, and Eleven, are not addressed at all in the body of Appellant’s brief.

These three issues relate to a combination of threat as to self-defense, a combination of threat as to

self-defense of a third person, and combination of mistake of fact and defense of a third person. The

only mention of these issues is in the list of issues presented for review. Appellant’s brief contains

no argument on these issues or citation to legal authority.

Because Appellant has failed to adequately brief these seven issues, he presents nothing for

review. Accordingly, we overrule Issues Three, Four, Five, Six, Seven, Eight, and Eleven. Preservation of Error

In Issues Nine and Ten, Appellant contends that the trial court created egregious harm by

failing to instruct the jury with a combination of threat of deadly force and defense of third person

and failing to instruct the jury with a combination of threat of deadly force and self defense. The

State argues that these issues are not preserved for appellant review because Appellant’s requested

instructions did not alert the court to those particular theories. Specifically, Appellant’s requested

instructions on threats as justifiable force were too general to preserve combination of threat as

justifiable force and self-defense; threat as justifiable force and defense-of-a-third-person. We agree

with the State.

In Posey v. State, the Court of Criminal Appeals held that a trial court is not statutorily

required to sua sponte instruct the jury on a mistake of fact “defensive issue” because a “defensive

issue” is not “‘applicable to the case’ . . . unless the defendant timely requests the issue or objects

to the omission of the issue in the jury charge.” 966 S.W.2d 57, 62 (Tex.Crim.App. 1998). It is

clear from the record that Appellant did not request instructions that combined threats as justifiable

force with self-defense and defense-of-a-third-person. Consequently, the trial court had no duty to

include those instructions in the charge. We overrule Issues Nine and Ten and affirm the judgment

of the trial court.

July 30, 2010 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)