COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00388-CR
RIGOBERTO CEDILLO APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
I. Introduction
A jury convicted Appellant Rigoberto Cedillo of misdemeanor assault,
bodily injury to a family member.2 The trial court sentenced Appellant to ninety
1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2010). The affirmative family-violence finding entered in this case does not affect Appellant’s sentence because the State did not allege that he had previously been convicted of assault–family violence. See id. ' 22.01(b)(2)(A). days in the county jail. In one point, Appellant contends that the evidence is
insufficient to support the jury’s guilty verdict. We affirm.
II. Factual and Procedural Background
On May 6, 2009, the complainant Jose Alfaro and two of his adult
stepsons—Appellant and Eduardo Escamilla—were drinking beer in Alfaro’s
garage. Alfaro began drinking at approximately 2:00 p.m.; Escamilla (who lived
across the street and two houses down) joined him in the early evening; and
Appellant (who lived with Alfaro) joined them around midnight. Alfaro testified
that he was intoxicated that evening but that the three men were talking and
drinking together ―just fine.‖ At some point, Alfaro told Appellant that he needed
to start paying rent. When Appellant responded that he did not have any money
because he had sent it all to his father in Mexico, Alfaro stated that ―that wasn’t
right‖ and that he needed to help pay the bills before sending money to his father.
When the prosecutor asked Alfaro about the broken nose that he had
sustained that night, he initially denied knowing exactly what had happened or
who had hit him.3 Ultimately, however, Alfaro testified that Escamilla had been
standing off to the side while Alfaro and Appellant talked and that Appellant hit
him in the face, knocking him to the ground. Alfaro testified that he did not think
that he had hit or attempted to hit Appellant. He further testified that the injury to
his nose ―hurt‖ and ―was bad‖ but that it had since healed.
3 Alfaro signed an affidavit of non-prosecution prior to trial.
2 Police Sergeants Willie Easley and Chris Herbert responded to Alfaro’s
residence in the early morning hours of May 7, 2009. The sergeants found Alfaro
outside on the ground, unconscious, with a bloody, severely broken nose.4
Sergeant Easley testified that, based on his experience and in his opinion, Alfaro
sustained a ―direct punch‖ that could not have been inflicted accidentally.
Appellant’s wife, Gloria, was frantic, crying, and upset, and she repeatedly
walked and pointed toward a house diagonally across the street. Sergeants
Easley and Herbert approached the identified house, and Officer Jason East
arrived and joined them. While Sergeant Easley remained outside with three
individuals standing in the front yard, Sergeant Herbert and Officer East knocked
on the front door, entered the home with their weapons drawn, and found
Appellant hiding under a bed.
When Appellant emerged, he claimed that Alfaro had ―punched‖ him and
that he had defended himself by returning a single punch. Although Sergeant
Herbert closely examined Appellant’s face, he did not see any injuries. When
asked if Appellant had any injuries, Sergeant Herbert recounted Appellant’s
statement that he had dislocated—and put back into place—a finger and that he
may have broken his hand. Based on Sergeant Herbert’s experience, however,
this was an ―offensive type wound, not necessarily a defensive type wound.‖
4 The medical records introduced by the State provided in part that Alfaro suffered from a nasal fracture when he was admitted to the hospital the day of the offense.
3 While acknowledging that a dislocated finger could be the result of an offensive
or defensive injury, Sergeant Herbert testified that Appellant’s injury would have
resulted from him attacking someone rather than from someone attacking him.
Sergeant Easley testified that he did not see any marks on Appellant that
indicated that Alfaro had hit him.
Eduardo Escamilla testified for the defense that he and Alfaro were
intoxicated when Appellant arrived, that Alfaro was ―already feeling good‖ and
―getting rowdy,‖ and that Appellant was sober. According to Escamilla, while
Appellant and Alfaro were talking, Appellant ―took one step back,‖ Alfaro
―reached out to swing,‖ and Appellant ―just reacted faster and just hit him one
good time in the nose.‖ When defense counsel asked if Alfaro ―was swinging‖ at
Appellant, Escamilla stated, ―[H]e sure did that attempt. You know, but of course,
if you’re drinking, you’re a little bit more slower.‖ Escamilla stated that
Appellant’s punch was not intentional or accidental but rather ―more like [a]
reflex. It’s just the way we are. We’ve been raised by a boxer.‖ In Escamilla’s
opinion, Appellant was defending himself. On cross-examination, Escamilla
explained that Alfaro took a swing at Appellant but ―stopped in the middle of it
when he was reaching out.‖ Escamilla acknowledged that he had told the
responding officers that he had not seen what happened between Alfaro and
Appellant.
4 III. Sufficiency of the Evidence
In one point, Appellant contends that the evidence is insufficient to support
the jury’s guilty verdict. Specifically, he argues that the jury found him guilty even
though ―each witness related that he was acting in self-defense.‖
A defendant has the initial burden of producing some evidence to support
a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.
2003) (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)).
Once evidence is produced, the burden shifts to the State to disprove the
defense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. This burden of
persuasion does not require the State to produce evidence to refute the self-
defense claim, but requires only that it prove its case beyond a reasonable doubt.
Id. Self-defense is an issue of fact to be determined by the jury, which is free to
accept or reject the defensive issue. Id. at 913–14. The fact finder is the sole
judge of the weight and credibility of the evidence. Brown v. State, 270 S.W.3d
564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). A jury’s
guilty verdict is an implicit finding rejecting the defendant’s self-defense theory.
Saxton,. 804 S.W.2d at 914.
In reviewing the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893, 912
5 (Tex. Crim. App. 2010) (―[T]he Jackson v.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-09-00388-CR
RIGOBERTO CEDILLO APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
I. Introduction
A jury convicted Appellant Rigoberto Cedillo of misdemeanor assault,
bodily injury to a family member.2 The trial court sentenced Appellant to ninety
1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2010). The affirmative family-violence finding entered in this case does not affect Appellant’s sentence because the State did not allege that he had previously been convicted of assault–family violence. See id. ' 22.01(b)(2)(A). days in the county jail. In one point, Appellant contends that the evidence is
insufficient to support the jury’s guilty verdict. We affirm.
II. Factual and Procedural Background
On May 6, 2009, the complainant Jose Alfaro and two of his adult
stepsons—Appellant and Eduardo Escamilla—were drinking beer in Alfaro’s
garage. Alfaro began drinking at approximately 2:00 p.m.; Escamilla (who lived
across the street and two houses down) joined him in the early evening; and
Appellant (who lived with Alfaro) joined them around midnight. Alfaro testified
that he was intoxicated that evening but that the three men were talking and
drinking together ―just fine.‖ At some point, Alfaro told Appellant that he needed
to start paying rent. When Appellant responded that he did not have any money
because he had sent it all to his father in Mexico, Alfaro stated that ―that wasn’t
right‖ and that he needed to help pay the bills before sending money to his father.
When the prosecutor asked Alfaro about the broken nose that he had
sustained that night, he initially denied knowing exactly what had happened or
who had hit him.3 Ultimately, however, Alfaro testified that Escamilla had been
standing off to the side while Alfaro and Appellant talked and that Appellant hit
him in the face, knocking him to the ground. Alfaro testified that he did not think
that he had hit or attempted to hit Appellant. He further testified that the injury to
his nose ―hurt‖ and ―was bad‖ but that it had since healed.
3 Alfaro signed an affidavit of non-prosecution prior to trial.
2 Police Sergeants Willie Easley and Chris Herbert responded to Alfaro’s
residence in the early morning hours of May 7, 2009. The sergeants found Alfaro
outside on the ground, unconscious, with a bloody, severely broken nose.4
Sergeant Easley testified that, based on his experience and in his opinion, Alfaro
sustained a ―direct punch‖ that could not have been inflicted accidentally.
Appellant’s wife, Gloria, was frantic, crying, and upset, and she repeatedly
walked and pointed toward a house diagonally across the street. Sergeants
Easley and Herbert approached the identified house, and Officer Jason East
arrived and joined them. While Sergeant Easley remained outside with three
individuals standing in the front yard, Sergeant Herbert and Officer East knocked
on the front door, entered the home with their weapons drawn, and found
Appellant hiding under a bed.
When Appellant emerged, he claimed that Alfaro had ―punched‖ him and
that he had defended himself by returning a single punch. Although Sergeant
Herbert closely examined Appellant’s face, he did not see any injuries. When
asked if Appellant had any injuries, Sergeant Herbert recounted Appellant’s
statement that he had dislocated—and put back into place—a finger and that he
may have broken his hand. Based on Sergeant Herbert’s experience, however,
this was an ―offensive type wound, not necessarily a defensive type wound.‖
4 The medical records introduced by the State provided in part that Alfaro suffered from a nasal fracture when he was admitted to the hospital the day of the offense.
3 While acknowledging that a dislocated finger could be the result of an offensive
or defensive injury, Sergeant Herbert testified that Appellant’s injury would have
resulted from him attacking someone rather than from someone attacking him.
Sergeant Easley testified that he did not see any marks on Appellant that
indicated that Alfaro had hit him.
Eduardo Escamilla testified for the defense that he and Alfaro were
intoxicated when Appellant arrived, that Alfaro was ―already feeling good‖ and
―getting rowdy,‖ and that Appellant was sober. According to Escamilla, while
Appellant and Alfaro were talking, Appellant ―took one step back,‖ Alfaro
―reached out to swing,‖ and Appellant ―just reacted faster and just hit him one
good time in the nose.‖ When defense counsel asked if Alfaro ―was swinging‖ at
Appellant, Escamilla stated, ―[H]e sure did that attempt. You know, but of course,
if you’re drinking, you’re a little bit more slower.‖ Escamilla stated that
Appellant’s punch was not intentional or accidental but rather ―more like [a]
reflex. It’s just the way we are. We’ve been raised by a boxer.‖ In Escamilla’s
opinion, Appellant was defending himself. On cross-examination, Escamilla
explained that Alfaro took a swing at Appellant but ―stopped in the middle of it
when he was reaching out.‖ Escamilla acknowledged that he had told the
responding officers that he had not seen what happened between Alfaro and
Appellant.
4 III. Sufficiency of the Evidence
In one point, Appellant contends that the evidence is insufficient to support
the jury’s guilty verdict. Specifically, he argues that the jury found him guilty even
though ―each witness related that he was acting in self-defense.‖
A defendant has the initial burden of producing some evidence to support
a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.
2003) (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)).
Once evidence is produced, the burden shifts to the State to disprove the
defense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. This burden of
persuasion does not require the State to produce evidence to refute the self-
defense claim, but requires only that it prove its case beyond a reasonable doubt.
Id. Self-defense is an issue of fact to be determined by the jury, which is free to
accept or reject the defensive issue. Id. at 913–14. The fact finder is the sole
judge of the weight and credibility of the evidence. Brown v. State, 270 S.W.3d
564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). A jury’s
guilty verdict is an implicit finding rejecting the defendant’s self-defense theory.
Saxton,. 804 S.W.2d at 914.
In reviewing the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893, 912
5 (Tex. Crim. App. 2010) (―[T]he Jackson v. Virginia standard 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 required
to prove beyond a reasonable doubt.‖). Thus, in reviewing the sufficiency of the
evidence to support the jury’s rejection of Appellant’s self-defense theory, we
examine all the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
offense and also could have found against Appellant on the self-defense issue
beyond a reasonable doubt. Saxton, 804 S.W.2d at 914 (citing Jackson, 443
U.S. 307).
A person commits an assault if he intentionally, knowingly, or recklessly
causes bodily injury to another. Tex. Penal Code. Ann. § 22.01(a)(1). The
State’s indictment alleged in relevant part that Appellant ―intentionally or
knowingly cause[d] bodily injury to Jose Alfaro, a member of the defendant’s
family or household, by striking him with [Appellant’s] hand.‖5 The court’s charge
instructed the jury to find Appellant guilty if it found the elements of the offense as
charged in the information.
5 The court instructed the jury that ―A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.‖ See Tex. Penal Code Ann. ' 6.03(a) (Vernon 2003). The court also instructed that ―A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.‖ See id. ' 6.03(b).
6 The court’s charge also instructed the jury on self-defense. See id.
§ 9.31(a) (Vernon Supp. 2010).6 The charge instructed the jury to acquit
Appellant if it found—or if it had a reasonable doubt—that, in striking Alfaro with
his hand, Appellant reasonably believed that his use of force was immediately
necessary to protect himself against Alfaro’s use or attempted use of unlawful
force. See id. The charge defined ―reasonable belief‖ as ―a belief that would be
held by an ordinary and prudent person in the same circumstances as the
defendant.‖ See id. ' 1.07(a)(42) (Vernon Supp. 2010).
Based on the evidence, a rational jury could have found beyond a
reasonable doubt that (1) Appellant assaulted the victim and that (2) his use of
force was not justified. Both parties presented evidence that Appellant caused
bodily injury to Alfaro by striking him with his hand. The jury could have inferred
Appellant’s mental state—that he committed the assault either intentionally or
knowingly—from his acts, conduct, remarks, and the surrounding circumstances.
See Juarez v. State, 308 S.W.3d 398, 405 (Tex. Crim. App. 2010) (citing Moore
v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998)). Sergeant Easley testified
that Alfaro’s broken nose was one of the worst he had ever seen and that it could
not have been inflicted accidentally. See Patrick v. State, 906 S.W.2d 481, 487
(Tex. Crim. App. 1995) (holding that intent can be inferred from the extent of the
6 ―[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.‖ Id. ' 9.31(a).
7 complainant’s injuries). Further, the jury was free to draw an inference of guilt
from Appellant’s conduct in fleeing the scene and hiding from the police under a
bed. See Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007)
(noting that ―[e]vidence of flight evinces a consciousness of guilt‖).
Additionally, the jury could have reasonably believed Alfaro’s testimony
that he never attempted to hit Appellant. Alternatively, the jury could have found
that Appellant failed to prove that he reasonably believed that his use of force
was immediately necessary to protect himself. Despite Appellant’s claims at the
time of the offense that Alfaro had punched him, none of the responding officers
saw any injuries to support Appellant’s claim. Moreover, Appellant’s own
defense witness, Escamilla, testified that an intoxicated Alfaro merely attempted
to swing at Appellant but that he ―stopped in the middle of it when he was
reaching out.‖ Indeed, the jury could have determined that Appellant’s statement
(to the officers) and Escamilla’s testimony that Appellant was defending himself
were conclusory and did not address Appellant’s state of mind—i.e. that
Appellant put on no evidence that he reasonably believed force was immediately
necessary to protect himself.
Viewing the evidence in the light most favorable to the verdict, we hold that
the evidence is sufficient to support both the jury’s finding of guilt and its rejection
of Appellant’s self-defense claim. We overrule Appellant’s sole point.
8 IV. Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: February 10, 2011