Marcus Villarreal III v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 29, 2023
• Docket: 13-22-00188-CR
• Status: Published

Opinion

NUMBER 13-22-00188-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MARCUS VILLARREAL III, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Silva

Appellant Marcus Villarreal III was indicted on murder for the death of Robert

Serrata, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02. At trial, his counsel

advanced the theory that appellant shot Serrata in self-defense. See id. § 9.32. The jury

rejected appellant’s self-defense claim, convicted him of the lesser-included offense of manslaughter, a second-degree felony, and the trial court assessed his punishment at

fourteen years’ imprisonment. See id. § 19.04. By one issue, appellant argues that the

evidence was insufficient to support the jury’s rejection of his self-defense claim. We

affirm as modified.

I. BACKGROUND

On October 3, 2019, Romeo Jaso was sitting on a bus bench across a Walmart

parking lot in Corpus Christi when he overheard someone yelling profanities. Jaso looked

up to see a sixty-five-year-old man, later identified as Serrata, and a woman arguing

across the street. At some unspecified point, Jaso noticed appellant, who was also

situated across the street from Jaso, nearby Serrata. Serrata caught appellant staring at

him and reportedly asked appellant, “[W]hat’s the deal?” In response, appellant walked

up to Serrata and punched him. “After [appellant] punched him, the old man staggered

back and took off his cap and glasses,” testified Jaso. “[Serrata] was about to hit

[appellant], and [appellant] shot him.” Appellant then walked away.

Three other witnesses also testified to the events that transpired immediately after

Serrata was shot: Raymond Ysassi and Sara Rogers, Walmart employees, and Maria

Flores, a bus driver. Ysassi testified that after he heard a gunshot, “[he] saw [appellant]

with the gun in his hand, a cloud of smoke,[ 1] and [Serrata] f[a]ll to the floor.” Appellant

then walked away and appeared to “put a bag inside a vehicle.” Ysassi stated appellant

returned shortly thereafter but maintained a distance.

Rogers testified that she was seated right next to Ysassi, engaged in conversation

1 CCPD firearm examiner Carolyn Martinez testified that the type of revolver used in the shooting usually emits more smoke than a pistol and described it as “fairly difficult to cock and fire.” 2 with him, when he interrupted and said, “‘[O]h, crap, gun,’ or, [‘H]e’s got a gun.’” Rogers

looked over and saw appellant standing “five or six feet” away from Serrata. “I saw the

puff of smoke. I saw him walk over to his car,” stated Rogers.

Flores testified she had just pulled up to the bus stop when she saw appellant

walking away from a man lying on the ground, bleeding. Flores stated she radioed

dispatch requesting an ambulance, exited the bus, and comforted Serrata’s significant

other until law enforcement arrived. Each witness testified that appellant did not at any

point attempt to render aid.

David Saenz, Battalion Chief with the Corpus Christi Fire Department, was “around

the corner” when he received a dispatch call reporting a shooting near the Walmart and

arrived ahead of law enforcement. According to Saenz, individuals standing around

Serrata’s body identified appellant as the shooter. Appellant was seated underneath a

tree nearby. Saenz testified, “And at that point I kind of—I make eye contact with

[appellant]. I said, [‘L]ook, I’m just here to check this guy. I don’t want no trouble. Are we

good?[’]” Saenz further testified “there was blood everywhere,” and so he was unable to

ascertain the exact location of Serrata’s entrance or exit wound. Former Nueces County

Medical Examiner, Ray Fernandez, testified that Serrata’s cause of death was a “gunshot

wound to the neck.”

Corpus Christi Police Department (CCPD) Officer Vicente Ortiz testified that

appellant was cooperative throughout the investigation, handed over his gun to police,

and admitted to shooting Serrata—maintaining that he had acted in self-defense. CCPD

Detective Edward Alvarado testified that he was also told by appellant that he had acted

3 out of fear that Serrata was “going to assault him.” No weapons were found on Serrata.

Appellant testified that on the day of the shooting, he had been living out of his car

in the Walmart parking lot. His car battery had drained overnight, and he had planned to

take the bus to an automotive parts store to recharge it. Appellant testified that he was

walking over to the bus stop when he heard someone cursing at him: “It’s getting louder

and it’s getting louder, like somebody is walking up behind me. So, I feared. I turned

around and I see [Serrata] across the street under the tree on a shopping cart that has

been turned sideways sitting down, looking at me, saying that.” Appellant testified that he

told Serrata, “What? What?” and Serrata stopped cursing but continued to stare at him.

Appellant stated that he walked away from the bus stop in an effort to ignore Serrata.

After appellant saw the bus nearing, he made his way to the bus stop and heard

Serrata cursing again. Appellant testified that he turned around to see Serrata walking

towards him, reaching for his neck. Appellant stated he punched Serrata and jumped

back. Serrata then took off his sunglasses and said, “Te voy a desgraciar.” 2 In response,

appellant pulled out his gun, cocked it, and took off the safety, explaining:

[T]he safety on my gun jams every single time, it takes a lot of strength to take the bullet, I m[e]an, to take the safety off. . . . So, I’m using all my strength, all my strength, and I took it off, but the gun jumped up. And when it jumped up, with my nerves and my tension, I grabbed it. And when I grabbed it, I pulled the trigger[,] and the gun went off by accident. And wow, the gun went off before I intended it to go off.

After shooting Serrata, appellant stated he walked back to his car to drop off the battery

he had been carrying and then walked to “go get something to eat” and check what was

showing at the theater. “I thought everything was fine,” testified appellant, stating that he

2 There was no direct translation provided at trial. 4 was unaware that the bullet had struck Serrata. Contrary to witness testimony, appellant

testified he saw Serrata walk back to his girlfriend, and she was “laughing and giggling.”

During cross-examination, appellant testified that he had been voluntarily

homeless for approximately twenty-five years, working in various physically laborious

industries over the years. Although first denying ever walking up to Serrata, appellant

then acquiesced he had walked “[m]aybe five feet” towards Serrata. Appellant testified he

saw no trail of blood in the images admitted at trial but opined that the video and

photographs had been fabricated, with law enforcement using a mannequin in place of

Serrata.

After both sides rested and closed, the trial court included the following self-

defense instruction in the jury charge:

Self-defense does not cover conduct in response to verbal provocation alone. The defendant must have reasonably believed the other person had done more than verbally provoke the defendant.

....

If you have found that the state has proved the offense beyond a reasonable doubt, you must also decide whether the state has proved that the defendant’s conduct was not justified by self-defense.

The jury returned a guilty verdict for the lesser-included offense of manslaughter and this

appeal followed.

II. SUFFICIENCY

By his sole issue, appellant challenges the sufficiency of the evidence to support

the jury’s rejection of his self-defense claim.

5 A. Standard of Review and Applicable Law

The penal code provides that deadly force used in self-defense is a defense to

prosecution for murder if that use of force is “justified.” See id. §§ 9.02 (“It is a defense to

prosecution that the conduct in question is justified under this chapter.”), 9.31–.33 (setting

forth substantive requirements for establishing claim of self-defense or defense of a third

person); Braughton v. State, 569 S.W.3d 592, 606 (Tex. Crim. App. 2018). Texas Penal

Code § 9.31 states that, subject to certain exceptions, 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 ANN. § 9.31(a). A “reasonable belief” in this context is

defined as one “that would be held by an ordinary and prudent man in the same

circumstances as the actor.” Id. § 1.07(a)(42).

A person is justified in using deadly force against another if he would be justified

in using force under § 9.31 “when and to the degree the [person] reasonably believes the

deadly force is immediately necessary . . . to protect [themselves] against the other’s use

or attempted use of unlawful deadly force.” Id. § 9.32(a)(2)(A); Rogers v. State, 664

S.W.3d 843, 851–52 (Tex. Crim. App. 2022) (“Section 9.31 lays out the standard for the

use of force in self-defense. However, the use of deadly force in defense of a person is

governed by [§] 9.32.”). “The Penal Code does not require that a defendant intend the

death of an attacker in order to be justified in using deadly force in self-defense.” Alonzo

v. State, 353 S.W.3d 778, 783 (Tex. Crim. App. 2011). However, the defendant bears the

burden to produce evidence in support of his claim. Braughton, 569 S.W.3d at 608 (“The

6 defendant’s burden of production requires him to adduce some evidence that would

support a rational finding in his favor on the defensive issue.”). “By contrast, the State’s

burden of persuasion ‘is not one that requires the production of evidence; rather it requires

only that the State prove its case beyond a reasonable doubt.’” Id. (quoting Zuliani v.

State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)).

In determining the sufficiency of the evidence to support a criminal conviction, “we

consider all the evidence in the light most favorable to the verdict and determine whether,

based on that evidence and reasonable inferences therefrom, a rational juror could have

found the essential elements of the crime beyond a reasonable doubt.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-

19, (1979)); see Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Entwined

in this analysis is a review of whether any rational trier of fact would have also “found

against appellant on the self-defense issue beyond a reasonable doubt.” Braughton, 569

S.W.3d at 609. “We measure the evidence by the elements of the offense as defined by

the hypothetically correct jury charge.” Id. at 608; Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). This familiar standard “recognizes the trier of fact’s role as the

sole judge of the weight and credibility of the evidence after drawing reasonable

inferences from the evidence.” Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011). “As a reviewing court, we may not reevaluate the weight and credibility of the

evidence in the record and thereby substitute our own judgment for that of the factfinder.”

Braughton, 569 S.W.3d at 608; Brooks, 323 S.W.3d at 899 (providing that a reviewing

court must not sit as “thirteenth juror,” disagree with the jury’s “weighing of the evidence,”

7 or “disagree with a jury’s resolution of conflicting evidence”). “We presume that the

factfinder resolved any conflicting inferences in favor of the verdict, and we defer to that

resolution.” Braughton, 569 S.W.3d at 608; Brooks, 323 S.W.3d at 922. “Although the

parties may disagree about the logical inferences that flow from undisputed facts, where

there are two permissible views of the evidence, the fact-finder’s choice between them

cannot be clearly erroneous.” Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App.

2006) (cleaned up).

B. Discussion

By finding appellant guilty of manslaughter, the jury necessarily rejected his

proposed self-defense claim. See Rogers, 664 S.W.3d at 850, n.32; Braughton, 569

S.W.3d at 611; Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991)

(providing assessment of credibility of defensive evidence is “solely within the jury’s

province and the jury is free to accept or reject the defensive evidence”; “[a] jury verdict

of guilty is an implicit finding rejecting the defendant’s self-defense theory”). Moreover,

the record does not indicate that the jury was irrational in rejecting the defense testimony

that appellant relied on for his claim of self-defense.

By appellant’s own admissions, he initiated physical force in response to verbal

provocation. Subsequent to being assaulted by appellant, Serrata made a threatening

comment, which appellant claims prompted him to draw and then inadvertently discharge

his weapon. Believing he had not struck Serrata, appellant then returned to his car and

left to check nearby movie times. Conversely, Jaso stated he saw appellant strike Serrata

8 unprovoked and then draw his weapon and shoot. According to multiple witnesses, it was

evident Serrata had been shot because he was lying in a pool of his blood.

Although the jury heard two conflicting versions of the altercation, the jury was the

sole judge of witness credibility on this issue, and we accept the jury’s resolution of

conflicts in favor of the verdict. See Braughton, 569 S.W.3d at 610 (“[I]t is apparent that

appellant’s defensive claims hinged almost entirely on the credibility of the witnesses who

viewed the events. Given this fact, it would have been improper for the court of appeals

to apply its own view of the weight and credibility of the witness testimony, thereby

substituting its own view for that of the jury.”); Saxton, 804 S.W.2d at 913. Thus, the

evidence is sufficient to support the jury’s rejection of appellant’s self-defense claim. We

overrule appellant’s sole issue.

III. MODIFICATION OF JUDGMENT

The judgment of conviction states that appellant’s sentence was imposed on April

22, 2022. We modify the judgment to recite the correct date of appellant’s sentence: April

25, 2022. See Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (noting that

we have the power to modify a judgment to speak the truth when we are presented with

the necessary information to do so).

IV. CONCLUSION

We affirm the trial court’s judgment as modified.

CLARISSA SILVA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

9 Delivered and filed on the 29th day of June, 2023.