Rodriguez, Abel v. State

• Court: Court of Appeals of Texas
• Decided: March 18, 2004
• Docket: 14-03-00471-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 18, 2004

Affirmed and Memorandum Opinion filed March 18, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00471-CR

ABEL RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 899,451

M E M O R A N D U M   O P I N I O N

Appellant Abel Rodriguez was found guilty of the offense of murder, and the jury sentenced him to fifteen years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In one point of error, appellant claims the trial court erred in overruling his objections to improper jury argument.  We affirm.

I.   Background

On January 11, 2002, appellant stabbed the complainant, Uvaldo Losoya, Jr., with a knife at least fifteen times.  The complainant died as a result of the wounds.  Appellant admitted to stabbing the complainant, but claimed he was acting in defense of his fiancée, Tammy Biesner.^[1]  That night, appellant and Biesner had gone to a club in north Houston where Biesner occasionally worked.  Appellant played pool while Biesner talked with some people at the bar.  Jashona Jones, the bartender on duty that evening, spoke briefly with the complainant.  During their conversation, the complainant told Jones that he had just gotten out of prison and commented that Jones was the best thing he had seen in a while.  The complainant then asked Jones where the restrooms were and walked towards them. 

Appellant testified he saw the complainant in the restroom.  According to appellant, the complainant was holding a knife and a small bag and asked appellant if Ahe wanted some.@  Appellant said the complainant wanted to know if appellant was a member of a prison gang and told appellant he was looking for a fight because he was Aready to [expletive] someone up.@  Appellant left the bathroom and returned to the pool table.

Jones later saw the complainant talking with Biesner at the bar.  Jones saw Biesner grab the complainant=s shirt and push him backwards, causing both of them to fall over some bar stools and onto the floor.  Jones jumped over the top of the bar and attempted to separate Biesner and the complainant.  Two bystanders saw the disturbance and tried to assist Jones.  Jones heard a man say, ALet go of her.@  Jones heard Biesner respond, AHe don=t have me; I have him.@  Appellant then stabbed the complainant several times.  One of the bystanders then attempted to separate appellant and the complainant, but was stabbed by appellant in the hand.  When the complainant attempted to pull himself up on the bar, appellant stabbed him at least two times in the back.  Appellant wiped his knife blade, and left the bar with Biesner.  The couple was later arrested in Wisconsin.  At trial, Biesner said the complainant had grabbed her left breast and put his arm around her neck, and that when she tried to hit him, they fell.  Biesner denied making the comment, AHe don=t have me; I have him.@  She said she was in fear of her life during the scuffle.  Appellant testified that he also feared for Biesner=s life when he stabbed the complainant.

II.   The Jury Argument

In his only point of error, appellant claims the prosecutor improperly told the jury during closing argument that appellant was required to retreat if he could have done so.  Specifically, appellant contends (1) the comment that A[a] reasonable person standing in [appellant=s] shoes must retreat, if at all possible@ was a comment on the law that justifies deadly force in defense of a third person; (2) this statement was a misstatement as to the law of defense of a third person; (3) the comment was contrary to the trial court=s charge; and (4) the trial court erred by not overruling appellant=s objection to it.  Because the complained-of argument related to the self-defense paragraph in the charge rather than the defense-of-third-person paragraph in the charge, we find no error.

To fall within the realm of proper jury argument, the argument must encompass one of the following general areas: (1) summation of the evidence presented at trial; (2) a reasonable deduction drawn from the evidence; (3) an answer to the opposing counsel=s argument; or (4) a plea for law enforcement.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).  It is not error for the State to quote or paraphrase the jury charge.  Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990).  However, it is error for the State to present a statement of the law that is contrary to that presented in the charge to the jury.  Id.

The charge contained an instruction regarding self-defense on page three and an instruction regarding the defense of a third person on page four.  During closing argument, appellant=s counsel informed the jury that the charge contained both instructions, but noted appellant was only arguing that his actions were justified under the theory of defense of a third person.  At the beginning of her closing argument, the prosecutor asked the jury to look at both theories of defense in the charge and to notice how many times the words Areasonably@ or Areasonable@ appeared.  The focus of the prosecutor=s argument was that appellant=s actions were not reasonable under the circumstances.  The following exchange took place:

[Prosecutor]:  The question becomes: Was it reasonable?  Does the lawCdo you 12 ladies and gentlemen of the jury excuse or justify his behavior?  And that=s really what it comes down to and you=ve got to look at this from a reasonable person=s perspective.  A reasonable person standing in his shoes must retreat, if at all possible.  Was there a possibility to retreat?

[Defense counsel]: Objection, Judge.  That is not a part of the law of defense of third persons.  It is a part of the law as to self-defense.

The Court: Overruled.

[Defense counsel]: And it must be from [Biesner=s] point of view on retreat.  That=s what the charge says.

[Prosecutor]: I=ll refer you to page 3 in the charge and the second paragraph.  If a reasonable person in his situation would not have retreated.  He=s justified if a reasonable person in his situation would not have retreated.  And we talk again about retreating on the fourth page.  A reasonable person, if the reasonable person being defended would not have retreated.  Was it reasonable?  If it was reasonable to get away, ask for help, see what else is going on, then he has to do that first.

The prosecutor then continued to argue why appellant=s actions were not reasonable and concluded her argument by stating that his actions did not constitute self-defense or defense of another.

When the prosecutor said that appellant should have retreated, if possible, the jury may have been confused as to which portion of the charge or to which defensive-theory she was referring.  However, after the objection by appellant=s counsel, the prosecutor referred the jury to paragraph two on page three of the charge.  By this reference, the prosecutor directed the jury to the self-defense instruction.  The duty to retreat would apply to this instruction.  See Tex. Pen. Code Ann. ' 9.32(a)(3) (Vernon 2003) (providing that a person is justified in using deadly force in self‑defense if a reasonable person in the actor=s situation would not have retreated).  The prosecutor then turned the jury=s attention to page four of the chargeCthe page containing the instruction on the defense of a third personCand instructed the jury that the standard with regard to this defense was whether the person being defended would have retreated.  Again, the prosecutor provided a proper statement of law with regard to that defense.  See Hughes v. State, 719 S.W.2d 560, 565 (Tex. Crim. App. 1986) (stating that the defense of third person A>applies= the law of retreat only to the third person, and then only in the sense that it requires the accused to make the reasonable assessment, from his standpoint, that a reasonable person in the third person=s shoes would not have retreated, before he may act with deadly force in that person=s behalf@).  The prosecutor=s argument directed the jury=s attention to two defensive instructions in the jury charge, and provided the jury with the correct legal standard concerning retreat for each theory.  Accordingly, we find no error because the prosecutor=s closing argument did not contain a misstatement of law.

Appellant=s sole point of error is overruled, and we affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 18, 2004.

Panel consists of Justice Yates, Anderson and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Appellant and Tammy Biesner are now married.  Tammy Biesner is identified in the record as both Tammy Biesner and Tammy Rodriguez.  For ease of reference, we will refer to appellant=s wife as Tammy Biesner.