Opinion issued April 18, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00548-CR
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ALFREDO ERNESTO HERRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1235094
MEMORANDUM OPINION
Appellant, Alfredo Ernesto Herrera, was charged by indictment with
murder. 1 He pleaded not guilty. The jury found him guilty and assessed
1
See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2011).
punishment at 25 years’ confinement. In three issues, appellant argues the trial
court abused its discretion by (1) denying his requests for jury instructions and (2)
denying his motion for new trial without holding a hearing.
We affirm.
Background
On September 27, 2009, Michael De Los Santos was shot in the head with a
shotgun while inside a club in Houston, Texas called La Bola Loca. He died
several days later in the hospital. The cause of death was determined to be
complications from a shotgun wound to the head with penetration of the brain.
Appellant was identified as a suspect, arrested, and charged with murder.
The State presented evidence that appellant had been in a fight inside the
club earlier in the night and had been escorted out of the club. 2 Appellant went to
his truck in the parking lot and retrieved a shotgun. He walked back to the club,
opened the door, and fired at least one shot, hitting De Los Santos. A manager for
the club was outside, came up behind appellant, and hit appellant on the back of
the head with the handle of his pistol. Appellant retreated into the parking lot and
eventually reached his car as the manager fired shots at appellant. Appellant fired
2
The evidence supporting the conviction is not challenged on appeal. Accordingly,
the State’s evidence is generally summarized for purposes of this appeal.
Conflicts in different witnesses’ accounts are not addressed.
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at least one more shot before getting into his truck. At least one more person also
got into appellant’s truck, and they drove away.
T. Ware, an arson investigator for the Houston Fire Department was
performing surveillance in the area of the club when he heard shots and saw the
truck leave the parking lot. Ware activated his flashing red lights and began
pursuing the truck. During the pursuit, he saw a gun thrown from the passenger
side of the truck. He drove over the gun in his pursuit. The truck pulled ahead and
turned near a highway. When he turned the corner, Ware saw the truck in the
roadway with the doors open. He also saw two Hispanic males running away into
a nearby bayou.
Appellant testified on his own behalf. He testified that he went to the club
that night with his uncle and cousin. His uncle bought a bucket of beers and they
each took one. Almost immediately after that, appellant turned around and saw his
uncle in a fight near the front of the club. As he approached, he saw 10 to 15 men
also approaching, looking aggressive. He saw one of the men pull something shiny
from his pocket, which appellant believed was a knife. Concerned for his uncle’s
safety, appellant rushed to his truck and grabbed his shotgun.
Appellant headed back to the club. He explained to the jury that he had no
intention of firing the shotgun. Instead, he planned to waive the gun around to
scare away the group that had been approaching his uncle. He opened the door to
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the club and began waiving the gun. Two seconds later, appellant felt a hard blow
to the back of his head. Stunned, he stumbled backwards and fell off of the curb of
the sidewalk next to a car in the parking lot. As he fell, appellant accidentally fired
the gun.
The person who hit him in the back of the head began firing shots at him.
Appellant ran to his truck, threw the shotgun onto the floorboard, and began to
start the car. His uncle and cousin reached the truck. His cousin grabbed the
shotgun and fired it at the club. They all got into the truck, and appellant drove
away. They saw the emergency lights on a car following them. Appellant’s uncle
wiped down the gun and threw it out of the truck. Later, the truck wrecked, and
they fled on foot.
On the day of the jury charge conference, appellant requested instructions to
the jury on voluntary act, mistake of fact, on self defense, defense of third person,
and threat as justifiable force. At the charge conference, appellant’s counsel
requested instructions on mistake of fact, defense of third person, and threat as
justifiable force. The trial court denied the requests.
Almost a month after the trial, appellant filed a motion for new trial. In it,
he requested a new trial based on newly discovered evidence. Appellant explained
that, after the night of the shooting, his cousin had fled to Mexico, “upon learning
that people were looking to kill him.” Following appellant’s conviction, the cousin
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talked with appellant’s stepfather, Mauro Lopez, over the telephone. Josefa
Castillo was in the room with the cousin during the telephone conversation. Both
Lopez and Castillo provided affidavits about the conversation, which appellant
attached to his motion. Castillo’s affidavit is in Spanish, however, without any
English translation.
According to Lopez’s affidavit, the cousin explained that when he was at the
club with appellant and their uncle, appellant told him that their uncle was in
trouble. They both left the club and the cousin saw appellant go to the truck and
walk back with a shotgun. When appellant reached the door of the club, the cousin
saw a man come up behind appellant and hit him on the head several times with a
pistol. The man then shot towards appellant, apparently missing him despite being
at point blank range, and towards the club. Appellant fell back into the parking lot.
His shotgun went off and hit the parked car next to him. The cousin ran to
appellant and helped him up. They both ran to the truck. The cousin held the gun
as they ran to the truck. When they reached the truck, the cousin fired one shot
into the air. They got into the truck with their uncle and drove away.
Appellant requested a hearing on his motion for new trial. The trial denied
the motion without a hearing.
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Jury Instructions
In his first issue, appellant argues the trial court abused its discretion by
denying his requests for instructions on defense of third person and threat as
justifiable force. In his second issue, appellant argues the trial court abused its
discretion by denying his request for an instruction on mistake of fact.
A. Standard of Review
When reviewing jury-charge error, we first determine if error actually exists
in the jury charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);
Johnson v. State, 227 S.W.3d 180, 182 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d). If we find error, we then determine whether it harmed the appellant. Ngo,
175 S.W.3d at 743.
The degree of harm requiring reversal depends upon whether an objection
was raised to the error at trial. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim.
App. 1986). If appellant did not make a proper objection at trial, appellant “will
obtain a reversal only if the error was so egregious and created such harm that he
has not had a fair and impartial trial.” Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984). If appellant made a proper objection, the error must be
reversed “as long as the error is not harmless.” Hutch v. State, 922 S.W.2d 166,
171 (Tex. Crim. App. 1996) (citing Almanza, 686 S.W.2d at 171).
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We do not review a trial court’s ruling on a request for a defensive
instruction with the usual deference. Instead, “we view the evidence in the light
most favorable to the defendant’s requested submission.” Bufkin v. State, 207
S.W.3d 779, 782 (Tex. Crim. App. 2006).
B. Analysis
“It is well settled that an accused has the right to an instruction on any
defensive issue raised by the evidence, whether that evidence is weak or strong,
unimpeached or contradicted, and regardless of what the trial court may or may not
think about the credibility of the evidence.” Granger v. State, 3 S.W.3d 36, 38
(Tex. Crim. App. 1999). When a defensive theory is raised by the evidence from
any source, the theory must be submitted to the jury. Reynolds v. State, 371
S.W.3d 511, 521 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (citing Brown
v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997)).
Appellant argues for his first issue that his “defense was that he was using
non-deadly force in defense of a third person by brandishing a deadly weapon[]
and that[,] in the course of doing that, Appellant unintentionally fired the gun one
time after being pistol-whipped.” Appellant argues that, without instructions on
defense of a third person and threat as justifiable force, the jury “would have had
no guidance for considering that Appellant have been acting within the law when
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he brought the shotgun to the nightclub and brandished it under the
circumstances.”
Section 9.33 of the Texas Penal Code provides, “A person is justified in
using force or deadly force against another to protect a third person if:
(1) under the circumstances as the actor reasonably believes them
to be, the actor would be justified under Section 9.31 or 9.32 in
using force or deadly force to protect himself against the
unlawful force or unlawful deadly force he reasonably believes
to be threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is
immediately necessary to protect the third person.
TEX. PENAL CODE ANN. § 9.32 (Vernon 2011).
With respect to threat as justifiable force, section 9.04 of the Texas Penal
Code provides,
The threat of force is justified when the use of force is justified by this
chapter. For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise, as
long as the actor’s purpose is limited to creating an apprehension that
he will use deadly force if necessary, does not constitute the use of
deadly force.
Id. § 9.04 (Vernon 2011).
Both of these defenses are justification defenses, also known as confession-
and-avoidance defenses. See id. §§ 9.04 (providing “[t]he threat of force is
justified when . . .” (emphasis added)), 9.33 (providing “[a] person is justified in
using force or deadly force . . .” (emphasis added)); Rodriguez v. State, 368 S.W.3d
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821, 824 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (discussing function of
justification defenses). For justification defenses, “a defensive instruction is only
appropriate when the defendant’s defensive evidence essentially admits to every
element of the offense including the culpable mental state, but interposes the
justification to excuse the otherwise criminal conduct.” Shaw v. State, 243 S.W.3d
647, 659 (Tex. Crim. App. 2007).
A person commits the offense of murder “if he intentionally or knowingly
causes the death of an individual.” TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon
2011). Appellant did not admit to this at trial, however. The defensive evidence
consisted of essentially his testimony and Castillo’s testimony. Castillo only
testified that appellant’s cousin had fled to Mexico shortly after the shooting.
Appellant testified that he opened the door to the club, brandishing but not
shooting the shotgun. He then was hit in the back of the head, stumbled
backwards, fell off the curb, and accidentally discharged the shotgun as a result of
the fall.
Instead of admitting to every element of the offense including the culpable
mental state, appellant’s defensive evidence establishes that the discharge of the
weapon was only by accident and that he never had any intent other than to wave
the shotgun around. A defendant is not entitled to an instruction on a defensive
theory that “merely negates an element in the State’s case, rather than
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independently justifying or excusing the conduct.” Walters v. State, 247 S.W.3d
204, 209 (Tex. Crim. App. 2007).
We hold that, because his defensive evidence did not essentially admit to
every element of the offense of murder, appellant was not entitled to jury
instructions on justification defenses. We overrule appellant’s first issue.
In his second issue, appellant argues the trial court abused its discretion by
denying his request for an instruction on mistake of fact. Specifically, he argues
that there was conflicting evidence on whether his uncle was in immediate danger
that night. The only relevance that appellant argues this has, however, concerns
whether appellant was justified in believing his uncle needed defending that night.
In other words, this instruction concerns whether appellant could assert defense of
third person. See TEX. PENAL CODE ANN. § 9.33.
“It is a defense to prosecution that the actor through mistake formed a
reasonable belief about a matter of fact if his mistaken belief negated the kind of
culpability required for commission of the offense.” TEX. PENAL CODE ANN.
§ 8.02(a) (Vernon 2011). “A mistake about the existence of a fact which would
establish an affirmative defense to an offense, rather than negating an element of
the offense, does not raise the mistake of fact defense.” Lugo v. State, 923 S.W.2d
598, 601 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).
We overrule appellant’s second issue.
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Hearing on Motion for New Trial
In his third issue, appellant argues that the trial court abused its discretion by
not holding a hearing on his motion for new trial.
A. Standard of Review & Applicable Law
A defendant does not have an absolute right to a hearing on his motion for
new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). Instead,
he is entitled to a hearing when he (1) raises matters which are not determinable
from the record and (2) establishes reasonable grounds showing that he could
potentially be entitled to relief. Id.
We review the trial court’s denial of a hearing on a motion for new trial for
an abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App.
2009). A trial court abuses its discretion when the ruling “was so clearly wrong as
to lie outside that zone within which reasonable persons might disagree.” Id. “Our
review . . . is limited to the trial [court]’s determination of whether the defendant
has raised grounds that are both undeterminable from the record and reasonable,
meaning they could entitle the defendant to relief.” Id.
B. Analysis
“A new trial shall be granted an accused where material evidence favorable
to the accused has been discovered since trial.” TEX. CODE CRIM. PROC. ANN. art.
40.001 (Vernon 2006).
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Under that statute, a defendant is entitled to have his motion for new
trial granted if (1) the newly discovered evidence was unknown to
him at the time of trial; (2) his failure to discover the new evidence
was not due to his lack of due diligence; (3) the new evidence is
admissible and not merely cumulative, corroborative, collateral, or
impeaching; and (4) the new evidence is probably true and will
probably bring about a different result in a new trial.
Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).
A trial court does not abuse its discretion when the prosecution’s case was
strong enough that the new evidence suggested by the affidavits, even if true,
would not be compelling enough to probably bring about a different result in a new
trial. Id. In this case, the affidavits indicate that appellant’s cousin stated that
neither he nor appellant fired at the club, let alone in the club. Appellant shot a car
next to the club and his cousin shot into the air in the parking lot. According to the
cousin, the only person to fire into the club was someone with a pistol. Yet, the
uncontroverted physical evidence establishes that the complainant died of a
shotgun wound to the head at relatively close proximity. Under appellant’s
cousin’s theory of events, this outcome was impossible. Accordingly, we hold that
appellant’s motion for new trial did not establish “reasonable grounds showing that
he could potentially be entitled to relief.” Hobbs, 298 S.W.3d at 199.
We overrule appellant’s third issue.
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Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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