Walter Orellana v. State

• Court: Court of Appeals of Texas
• Decided: November 23, 2020
• Docket: 07-20-00088-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00088-CR

WALTER ORELLANA, APPELLANT

V.

STATE OF TEXAS, APPELLEE

On Appeal from the 46th District Court of Wilbarger County, Texas Trial Court No. 12,452; Honorable Dan Mike Bird, Presiding

November 23, 2020

CONCURRING OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

The majority concludes that the jury had before it sufficient evidence on which it

could conclude, beyond a reasonable doubt, that Appellant was not justified in using

deadly force against Officer Sessions because Appellant had “provoke[d] the [officer’s]

use or attempted use of unlawful deadly force” by rapidly reversing his vehicle while the

officer was attempting to remove Appellant from his vehicle while effecting a lawful arrest.

Relying on Braughton v. State, 569 S.W.3d 592, 606, 608-09 (Tex. Crim. App. 2018), and

section 9.31(b) of Texas Penal Code, the majority rejects Appellant’s sole issue, finding that any rational trier of fact would have found the essential elements of the crime beyond

a reasonable doubt and could have reasonably rejected Appellant’s claim of self-defense

by concluding he provoked the officer’s use of force. Because I do not want to leave the

impression that Officer Sessions’s use of deadly force was “unlawful” in any way, I concur

in the result, but write separately.

One being placed under arrest does have the right to resist the unlawful use of

excessive force1—but such resistance must be judiciously exercised, with extreme

restraint, in order to avoid an escalation of hostilities in an arena fraught with the potential

of misinterpretation in the subsequent light of cool reflection. Specifically, the use of force

to resist an arrest is only justified (1) if, before the actor offers any resistance, the officer

uses or attempts to use greater force than necessary to make the arrest and (2) when

and to the degree the actor reasonably believes the force he chooses to use is

immediately necessary to protect himself against the officer’s use or attempted use of

excessive force. TEX. PENAL CODE ANN. § 9.31(c) (West 2019). The use of deadly force

is never justified under section 9.31(c) except as provided in sections 9.32 and 9.33. See

TEX. PENAL CODE ANN. § 9.31(d).

Under sections 9.32 and 9.33, in addition to the requirements of section 9.31(c), a

person is only justified in using deadly force against another when and to the degree the

actor reasonably believes the deadly force is immediately necessary (A) to protect the

actor against the other’s use or attempted use of unlawful deadly force or (B) to prevent

the other’s imminent commission of aggravated kidnapping, murder, sexual assault,

1 “If the officer uses more force than necessary [to make an arrest], the suspect would then be justified to resist arrest.” State Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001).

2 aggravated sexual assault, robbery, or aggravated robbery. See TEX. PENAL CODE ANN.

§ 9.32(a) (use of deadly force in defense of self) (emphasis added). See also § 9.33

(similar provision pertaining to the use of deadly force in defense of third persons).

As the majority has properly stated, when reviewing the sufficiency of the evidence

in the context of evaluating the jury’s rejection of a defendant’s claim of self-defense in

this case, Appellant would be justified in using deadly force against Officer Sessions (1)

if he would be justified in using force against Officer Sessions under section 9.31 and (2)

“when and to the degree” Appellant reasonably believed deadly force was immediately

necessary to protect himself against Officer Sessions’s use of unlawful deadly force.

Because Appellant has not shown Officer Sessions’s use of deadly force to be unlawful,

or even that he reasonably believed the use of deadly force was immediately necessary

to protect himself from what he perceived to be unlawful deadly force, he has failed to

meet his burden of proof. As a reviewing court, we may not re-evaluate the weight and

credibility of the evidence in the record and thereby substitute our judgment for that of the

original fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Precedent from the Court of Criminal Appeals has long held that in a claim of self-

defense, a defendant bears the burden to produce evidence supporting that defense,

while the State retains the burden of persuasion to disprove the issues raised. Braughton,

569 S.W.3d at 592; Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The

State’s burden is “not one that requires the production of evidence, rather it requires only

that the State prove its case beyond a reasonable doubt.” Braughton, 569 S.W.3d at 608

(citing Saxton v. State, 804 S.W.3d 910, 913 (Tex. Crim. App. 1991)). Accordingly, in

resolving a sufficiency of the evidence issue such as we have in this case, we do not look

3 to see whether the State refuted Appellant’s self-defense testimony; rather, we examine

the record to determine whether, after viewing all the evidence in the light most favorable

to the prosecution, any rational trier of fact would have found the essential elements of

the offense beyond a reasonable doubt and also would have found against Appellant on

the self-defense issue beyond a reasonable doubt. Braughton, 569 S.W.3d at 609;

Saxton, 804 S.W.2d at 914.

Under section 9.31(d) of the Texas Penal Code, Appellant would never have been

justified in using deadly force in response to Officer Sessions’s use of lawful deadly force.

Furthermore, Appellant has not shown that he reasonably believed his use of deadly force

was immediately necessary to protect himself from what he perceived to be unlawful

excessive force. Accordingly, I find the State carried its burden of presenting legally

sufficient evidence on which a reasonable jury could conclude, beyond a reasonable

doubt, that Appellant committed the aggravated assault for which he was charged and

that he was not acting in self-defense at the time he committed the acts constituting that

offense. As such, Appellant’s sole issue is overruled.

CONCLUSION

I also affirm the judgment of the trial court.

Patrick A. Pirtle Justice

Do not publish.