Opinion issued February 3, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00095-CR
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ROBERTO ALFREDO VENTURA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1355473
MEMORANDUM OPINION
A jury convicted Roberto Alfredo Ventura of murder 1 and assessed his
punishment at fifty years’ confinement and a $10,000 fine. In his sole point of
1
See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
error, appellant contends that the evidence was factually insufficient to support his
conviction. We affirm.
Background
On July 24, 2012, officers responded to a dispatch call involving a shooting
in North Harris County. When they arrived at the scene, they discovered the
complainant, James “Chucky” Hill, lying motionless on the ground behind Primo’s
Food Store. Based on witnesses’ identification of appellant as the shooter, DNA
evidence, and the store’s videotaped surveillance, appellant was subsequently
arrested and charged with Hill’s murder. He pleaded not guilty to the charge and
the case proceeded to trial.
Travis Mitchell testified that he first saw appellant “rolling weed” outside of
Primo’s Food Store on the date of the shooting.2 Mitchell later witnessed Hill
approach appellant outside of Primo’s and hit him, at which point appellant pulled
out a gun and began shooting at Hill. Mitchell testified that Hill began running
away and appellant ran after him, shooting. Terrence Brown, a resident at an
adjacent apartment complex who witnessed the shooting, testified that after Hill
fell, appellant stood over Hill and fired several more shots.
Dr. Sara Doyle, an assistant medical examiner who performed the autopsy
on Hill, testified that Hill was shot a total of eight times, and that seven of the shots
2
Mitchell and Hill, whom Mitchell referred to as his “patna,” sometimes sold drugs
outside of Primo’s.
2
were non-life-threatening but that the shot to the back of Hill’s head was lethal. In
particular, Dr. Doyle testified that the wound to Hill’s head, if not immediately
fatal, was “immediately incapacitating” so that “[i]t would make him unconscious
and unable to move or walk or run.” Harris County Sheriff’s Deputy Jesus Ortiz, a
crime scene investigator assigned to the case, testified that Hill’s body was found
approximately one hundred feet from the front of the store.
The trial court admitted the store’s video surveillance of the incident (State’s
Exhibit 86) and appellant’s videotaped statement to police after the shooting
(State’s Exhibit 102). In his statement, appellant told police that Hill had
threatened him the night before the shooting, telling him that if he saw appellant
outside of Primo’s again that he would kill him.
At the conclusion of trial, the jury found appellant guilty of the charged
offense and assessed his punishment at fifty years’ confinement. Appellant timely
filed this appeal.
Discussion
In his sole point of error, appellant contends that the evidence is factually
insufficient to support the jury’s rejection of his claim that he acted in self-defense.
The State argues that it proved all the elements of murder beyond a reasonable
doubt and that a rational jury could have rejected appellant’s self-defense claim.
3
A. Standard of Review
“[T]he Jackson v. Virginia legal sufficiency 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.” Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781
(1979)). Under this standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the verdict, no
rational fact finder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970);
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Viewed in the light
most favorable to the verdict, the evidence is insufficient under this standard when
either: (1) the record contains no evidence, or merely a “modicum” of evidence,
probative of an element of the offense; or (2) the evidence conclusively establishes
a reasonable doubt. See Jackson, 443 U.S. at 314, 99 S. Ct. at 2781; Laster, 275
S.W.3d at 518.
The jury is the sole judge of the credibility of witnesses and the weight to
give testimony, and our role on appeal is simply to ensure that the evidence
reasonably supports the jury’s verdict. Montgomery v. State, 369 S.W.3d 188, 192
4
(Tex. Crim. App. 2012). An appellate court may not re-evaluate the weight and
credibility of the record evidence and thereby substitute its own judgment for that
of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
In conducting a legal sufficiency review, we defer to the jury’s assessment of the
credibility of the witnesses and the weight to be given to their testimony. See
Brooks, 323 S.W.3d at 899.
B. Applicable Law
Self-defense is a defense to prosecution under Penal Code section 2.03. See
TEX. PENAL CODE ANN. §§ 2.03, 9.02, 9.32 (West 2011). Under section 9.31(a), 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. at § 9.31(a) (West Supp.
2014). If a person would be justified in using force under section 9.31, he may use
deadly force when and to the degree he reasonably believes it is immediately
necessary to protect himself against the other person’s use or attempted use of
unlawful deadly force, but only if a reasonable person in the actor’s situation
would not have retreated. Id. at § 9.32(a).
A “reasonable belief” is defined as one that would be held by “an ordinary
and prudent man in the same circumstances as the actor.” TEX. PENAL CODE ANN.
§ 1.07(a)(42) (West Supp. 2014). “Deadly force” is force intended or known by
5
the actor to cause, or in the manner of its use or its intended use is capable of
causing, death or serious bodily injury. Id. at § 9.01(3) (West 2011). “Serious
bodily injury” is an injury that creates a “substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Id. at § 1.07(a)(46) (West Supp. 2014).
A defendant bears the burden to produce some evidence supporting a claim
of self-defense. Cleveland v. State, 177 S.W.3d 374, 380 (Tex. App.—Houston
[1st Dist.] 2005, pet. ref’d) (citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim.
App. 2003)). Once the defendant produces some evidence raising the issue of self-
defense, the State then bears the burden of persuasion to disprove the asserted
defense. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991);
Cleveland, 177 S.W.3d at 380. The burden of persuasion does not require the State
to produce evidence; rather, it requires that the State prove its case beyond a
reasonable doubt. Saxton, 804 S.W.2d at 913. If the jury finds the defendant
guilty, it has made an implicit finding against any defensive theory raised by the
defendant. See id. at 914.
Because the State bears the burden of persuasion to disprove a section 2.03
defense by establishing its case beyond a reasonable doubt, we review both legal
and factual sufficiency challenges to the jury’s rejection of such a defense under
the Jackson v. Virginia standard. See Smith v. State, 355 S.W.3d 138, 144 (Tex.
6
App.—Houston [1st Dist.] 2011, pet. ref’d) (applying standard to jury’s rejection
of self-defense claim); see also Saxton, 804 S.W.2d at 914 (distinguishing standard
of review for defensive claims in which State bears burden of persuasion and
affirmative defenses in which defendant bears burden of proof).
C. Analysis
Appellant does not dispute that he shot Hill. Rather, he argues that the
jury’s implicit rejection of his self-defense claim is unsupported by the evidence.
In support of his contention, appellant relies on (1) the store’s video surveillance
showing that Hill was the first aggressor and (2) appellant’s statement to the police
that Hill had threatened appellant the day before the shooting, telling him that he
would kill appellant if he saw him at Primo’s again.
At trial, the jury saw the store’s video surveillance showing appellant
standing outside of the store when Hill, Mitchell, and a third unidentified man
walked by. Hill then approached appellant and hit him, and appellant pulled out a
gun and started shooting. Appellant argues that this evidence supports his claim
that he acted in self-defense because he reasonably believed that it was
immediately necessary to use deadly force to protect himself against Hill. We
disagree.
A review of the video shows that after appellant pulled out a gun and began
shooting, Hill ran away and appellant chased him. The jury heard testimony that
7
appellant continued shooting and that, after Hill fell, appellant stood over him and
shot him several more times. The jury also heard evidence that Hill was shot a
total of eight times, and that the wound to the back of Hill’s head, if not
immediately fatal, was “immediately incapacitating” so that “[i]t would make him
unconscious and unable to move or walk or run.” Given this testimony, and in
light of the fact that Hill’s body was found one hundred feet away from the front of
the store where he had begun running, the jury could have reasonably concluded
that appellant’s conduct in chasing and shooting at Hill after he had begun to run
away, was inconsistent with his defensive claim. See Cleveland, 177 S.W.3d at
387 (finding that jury could have reasonably concluded that defendant’s conduct in
continuing to stab his wife’s back as she lay bleeding on floor was inconsistent
with his claim of self-defense).
In support of his self-defense claim, appellant also relies on his statement to
police after the shooting that Hill had threatened him the previous day and told him
that he would kill appellant if he saw him outside of Primo’s again. As appellant
correctly notes, when a defendant claims that the deceased was the first aggressor,
prior threats or specific acts of violence relevant to the ultimate confrontation may
be offered to show a deceased’s state of mind, intent, or motive. See Torres v.
State, 71 S.W.3d 758, 761–62 (Tex. Crim. App. 2002) (holding defendant in
murder prosecution was entitled to introduce evidence that victim had previously
8
made threats against defendant’s friend’s aunt and her children, in order to
establish that victim was first aggressor as evidence was probative of victim’s state
of mind, intent, and motive); see also Tate v. State, 981 S.W.2d 189, 193 (Tex.
Crim. App. 1998) (holding that evidence of threat made by decedent one or two
months before his death was admissible when offered by defendant who was
charged with murder and asserted self-defense, because threat was probative of
decedent’s state of mind to possibly harm defendant on date of offense); Lewis v.
State, 463 S.W.2d 186, 188 (Tex. Crim. App. 1971) (evidence that deceased often
carried knife and got in barroom brawls, along with threat against defendant, was
admissible).
The jury’s decision to reject appellant’s defensive claim, however,
ultimately hinges on the credibility of the witnesses. “As factfinder, the jury is
entitled to judge the credibility of witnesses, and can choose to believe all, some,
or none of the testimony presented by the parties.” Chambers v. State, 805 S.W.2d
459, 461 (Tex. Crim. App. 1991). The statements of a defendant do not
conclusively prove a claim of self-defense. See Smith, 355 S.W.3d at 146
(concluding jury could have reasonably concluded that defendant’s conduct in
chasing decedent and attempting to stab him second time was inconsistent with his
defensive claims); Denman v. State, 193 S.W.3d 129, 132–33 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (finding evidence sufficient to support
9
conviction for aggravated assault under Jackson v. Virginia standard despite
defendant’s claim of self-defense, which was based on testimony of defendant and
other witnesses who stated that complainant had assaulted or threatened defendant
on prior occasions); see also Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App.
2003) (holding that only evidence weighing against jury finding that defendant
entered home with no specific intent to commit sexual assault was defendant’s own
statement, and this was not enough to render evidence insufficient). Here,
appellant’s evidence supporting his self-defense claim, in light of the video
surveillance and witnesses’ testimony presented at trial, does not render the
evidence in this case insufficient to support the jury’s verdict. See Smith, 355
S.W.3d at 146; Chambers, 805 S.W.2d at 461; see also Denman, 193 S.W.3d at
132–33.
We conclude that the jury rationally could have found that each element of
the charged offense was proven beyond a reasonable doubt, and rationally could
have rejected appellant’s claim of self-defense. See Jackson, 443 U.S. at 319, 99
S. Ct. 2781; see also Zuliani, 97 S.W.3d at 594. Accordingly, we hold that the
evidence was sufficient to support appellant’s conviction for Hill’s murder.3 We
overrule appellant’s sole point of error.
3
Citing to Code of Criminal Procedure article 44.29(b), appellant requests in the
alternative that his sentence be reversed and a new trial ordered on the matter of
punishment only. See TEX. CRIM. PROC. CODE ANN. art. 44.29(b) (West 2013)
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Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Jennings, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
(providing that if appellate court finds that there was reversible error committed at
punishment stage of trial [except for convictions under Penal Code section 19.03],
defendant is entitled to new trial on punishment only). However, appellant has
presented no argument in support of such a request, nor cited to authorities or the
record. As such, appellant has waived this issue for appellate review. See TEX. R.
APP. P. 38.1(i).
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Roberto Alfredo Ventura v. State
Combined Opinion