ACCEPTED
01-14-00561-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/29/2015 5:42:19 PM
CHRISTOPHER PRINE
NO. 01-14-00561-CR CLERK
IN THE COURT OF APPEALS FOR THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST DISTRICT OF TEXAS 4/29/2015 5:42:19 PM
CHRISTOPHER A. PRINE
Clerk
HOUSTON, TEXAS
JONATHAN ROSARIO,
Appellant
V.
STATE OF TEXAS,
Appellee
Appealed From The
186th Judicial District Court
Of Bexar County, Texas
BRIEF FOR THE APPELLANT
GROSS & ESPARZA, P.L.L.C.
MICHAEL C. GROSS
State Bar No. 08534480
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
Lawofcmg@gmail.com
(210) 354-1919
(210) 354-1920 Fax
Attorney for the Appellant,
JONATHAN ROSARIO
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Mr. Jonathan Rosario, Appellant
Michael C. Gross, Attorney for the Appellant
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
Alex Scharff, Attorney for the Appellant
222 East Main Plaza
San Antonio, Texas 78205
Loraine Efron, Attorney for the Appellant
1001C San Pedro Avenue
San Antonio, Texas 78216
Enrico Valdez, Assistant District Attorney
101 West Nueva
San Antonio, Texas 78205
Tanner Neidhardt, Assistant District Attorney
101 West Nueva
San Antonio, Texas 78205
Ryan Groomer, Assistant District Attorney
101 West Nueva
San Antonio, Texas 78205
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUN
. .S.E.L. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 2
POINTS OF ERROR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
POINT OF ERROR ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
THE JURY’S REJECTION OF THE APPELLANT’S
CLAIM OF SELF-DEFENSE IS NOT SUPPORTED
BY LEGALLY SUFFICIENT EVIDENCE.
ARGUMENT AND AUTHORITIES IN SUPPORT OF
POINT OF ERROR ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
POINT OF ERROR TWO .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO SUPPORT THE JURY’S REJECTION OF THE
CLAIM THAT THE MURDER WAS COMMITTED
UNDER THE IMMEDIATE INFLUENCE OF
SUDDEN PASSION ARISING FROM AN
ADEQUATE CAUSE.
iii
ARGUMENT AND AUTHORITIES IN SUPPORT OF
POINT OF ERROR TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
POINT OF ERROR THREE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
THE EVIDENCE WAS FACTUALLY
INSUFFICIENT TO SUPPORT THE JURY’S
REJECTION OF THE CLAIM THAT THE MURDER
WAS COMMITTED UNDER THE IMMEDIATE
INFLUENCE OF SUDDEN PASSION ARISING
FROM AN ADEQUATE CAUSE.
ARGUMENT AND AUTHORITIES IN SUPPORT OF
POINT OF ERROR THREE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
TABLE OF AUTHORITIES
Allen v. State, 253 S.W.3d 260
(Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Clayton v. State, 235 S.W.3d 772
(Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Cleveland v. State, 177 S.W.3d 374
(Tex. App. - Houston [1st Dist.] 2005, pet. ref’d). . . . . . . . . . . . . . . . . 17, 20
Hartsfield v. State, 305 S.W.3d 859
(Tex. App. - Texarkana 2010, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iv
Hooper v. State, 214 S.W.3d 9
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Meraz v. State, 785 S.W.2d 146
(Tex. Crim. App. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Morales v. State, 357 S.W.3d 1
(Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Saxton v. State, 804 S.W.2d 910
(Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Smith v. State, 355 S.W.3d 138
(Tex. App. - Houston [1st Dist.] 2011, pet. ref’d) . . . . . . . . . . . . . . 11, 16, 17
Watson v. State, 204 S.W.3d 404
(Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Zuliani v. State, 97 S.W.3d 589
(Tex. Crim. App. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Zuniga v. State, 144 S.W.3d 477
(Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Constitutions And Statutes
Tex. Penal Code Section 9.32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Tex. Penal Code Section 9.33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. R. App. P. 39.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
v
NO. 01-14-00561-CR
IN THE COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS
HOUSTON, TEXAS
JONATHAN ROSARIO,
Appellant
V.
STATE OF TEXAS,
Appellee
Appealed From The
186th Judicial District Court
Of Bexar County, Texas
BRIEF FOR THE APPELLANT
TO THE HONORABLE COURT OF APPEALS:
Jonathan Rosario, the Appellant in Cause Number 2013-CR-5658 in the 186th
Judicial District Court of Bexar County, Texas and the Appellant in this cause,
pursuant to Rule 38.1 of the Texas Rules of Appellate Procedure, submits this brief
to this Honorable Court for the purpose of appealing the judgment and sentence in
1
this cause that were adjudged on May 23, 2014. The parties will be referred to as “the
Appellant” and “the State.”
STATEMENT OF THE CASE
The Appellant was indicted in Cause Number 2013-CR-5658 with Murder
occurring on or about December 2, 2012. (T - 7, 95).1 The jury trial began with jury
selection on May 14, 2014 before the Honorable Maria Herr, presiding judge. (R -
v.2 - 1). On May 22, 2014, the jury found the Appellant guilty, contrary to his plea.
(R - v.8 - 1, 119). On May 23, 2014, the jury sentenced the Appellant to
imprisonment for forty years in the Texas Department of Criminal Justice,
Institutional Division and no fine. (T - 95; R - v.9 - 1, 163). A motion for new trial
was timely filed on June 16, 2014 and was denied by operation of law. Notice of
appeal was timely filed on June 16, 2014. (T - 102).
STATEMENT REGARDING ORAL ARGUMENT
Counsel for the Appellant respectfully requests leave, pursuant to Rule 39.1 of
the Texas Rules of Appellant Procedure, to make oral argument to this Honorable
Court. Counsel believes that oral argument is necessary for a full and complete
understanding of the facts and constitutional issues presented in this case. This
request is made so that justice may be done.
1
The clerk’s record will be referred to as “T and page number.” The court reporter’s
record will be referred to as “R and volume and page number.”
2
POINTS OF ERROR
POINT OF ERROR ONE
THE JURY’S REJECTION OF THE APPELLANT’S CLAIM OF
SELF-DEFENSE IS NOT SUPPORTED BY LEGALLY SUFFICIENT
EVIDENCE.
POINT OF ERROR TWO
THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE
JURY’S REJECTION OF THE CLAIM THAT THE MURDER WAS
COMMITTED UNDER THE IMMEDIATE INFLUENCE OF SUDDEN
PASSION ARISING FROM AN ADEQUATE CAUSE.
POINT OF ERROR THREE
THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE
JURY’S REJECTION OF THE CLAIM THAT THE MURDER WAS
COMMITTED UNDER THE IMMEDIATE INFLUENCE OF SUDDEN
PASSION ARISING FROM AN ADEQUATE CAUSE.
STATEMENT OF FACTS
Romello “Mello” James knew Michael Huizar had been selling drugs, and
Mello informed the parents of Huizar about this selling of drugs. (R - v.3 - 130-131).
As a result, Huizar and his friend Robert Aldana were very angry with Mello. (R - v.4
- 190; R - v.6 - 252). About one week prior to December 2, 2012, Aldana assaulted
Mello since Mello had informed on Huizar. (R - v.3 - 68, 144). Huizar used his cell
phone to videotape this fight. (R - v.3 - 132, 138, 142; R - v.10 - Defense Exhibit 2).
On December 2, 2012, both Aldana and Mello wanted a rematch to fight again
with each other. (R - v.3 - 69, 71, 138). On this date, Huizar was seventeen years old,
Aldana was sixteen years old, Jacob St. Clair was eighteen years old, and John Valdez
3
was about twenty years old. (R - v.3 - 135, 148). Just prior to the rematch, Huizar and
Aldana had been smoking marijuana with John Valdez and Jacob St. Clair. (R - v.3 -
124-126). Huizar was on probation at the time. Id. Aldana received a text message
from Mello about scheduling the rematch for that night. (R - v.3 - 127, 136). Huizar
received a call from the complainant, Kevin Hill, that several people were at the site
where the rematch was to take place. (R - v.4 - 9). Hill was in an agitated mood. (R -
v.6 - 176-177). After the call from Hill, Huizar sent a text message to St. Clair that
stated, “Get ready, we fittin’ to fuck up Romello.” (R - v.4 - 10, 12). Mello thought
is was possible that Huizar and Aldana would bring weapons to the fight. (R - v.4 -
69).
Huizar drove five people including Aldana, St. Clair, and Valdez to the fight
and, in his car, there were knives and brass knuckles. (R - v.3 - 71-75, 122-123, 144;
R - v.4 - 99). At the site of the rematch, Hill joined Huizar’s “crew” against the
people who were with Mello. (R - v.4 - 13). Huizar had more people with him than
Mello had with him. (R - v.5 - 44). Aldana and Huizar and everyone else in their
crew, except Hill, had weapons. (R - v.6 - 151). Aldana and Huizar brought people
with them to the rematch including Jacob St. Clair who had a knife with him by his
side, and John Valdez who had two knives on his belt and a taser. (R - v.3 - 122-123;
R - v.6 - 28-29, 75; R - v.6 - 220). Prior to the rematch, Mello called people and went
4
on Facebook and asked his friends (including a female named Shay Godley) to come
help him during the rematch. (R - v.4 - 70, 102-103). Mello was afraid that if he beat
Aldana in the fight that other people would begin to assault Mello. (R - v.4 - 103).
Five people, including the Appellant (Jonathan Rosario) and Shay, accompanied
Mello to the rematch. (R - v.4 - 71-74; R - v.5 - 31). In the car was a bat and a
screwdriver. (R - v.5 - 33).
The rematch resulted in many people fighting each other, and many of the
combatants were carrying knives, a taser, and the threat of a gun. Jonathan brought
a paring knife with him to the rematch. (R - v.5 - 34). Jonathan did not appear as if
he was ready to use the knife. (R - v.6 - 132). Prior to the rematch fight, Emily from
Huizar’s crew threatened Mello’s group. (R - v.5 - 82-83). Emily was in a bad mood.
(R - v.6 - 177-178). Emily made a statement that was threatening to Mello’s group
that she had “a 40 Glock” nearbyat her house and would use it. (R - v.6 - 178-180; R -
v.7 - 34). This terrified Jonathan since he is afraid of guns after his friend was shot
and killed when Jonathan was fourteen years old. (R - v.7 - 176-177). Hill told one
of the people from Mello’s group that, “I don’t give a fuck about you. Get the fuck
away from me.” (R - v.7 - 29-30). It was clear that everyone in Huizar’s crew wanted
to fight Mellos’s group. (R - v.6 - 187). Hill and Emily had some dogs with them that
were threatening to a person from Mello’s group. (R - v.6 - 135). If there was
5
fighting, there was a worry that the dogs might attack someone. (R - v.6 - 135). Emily
and Hill were drinking alcohol at this time. (R - v.7 - 31-32).
At the rematch, Huizar struck Mello in the head, Mello fell to the ground, and
Huizar then kicked Mello in the head at least seven times while Mello was on the
ground causing Mello’s head to bounce off the asphalt. (R - v.3 - 90-91, 146-148; R -
v.4 - 115, 159-160, 204; R - v.5 - 47, 73, 75; R - v.7 - 42-43). Shay was getting bad
vibes at this point of the fighting. (R - v.5 - 74). While Huizar was kicking Mello, Hill
and St. Clair stepped in and Hill fought with two people. (R - v.4 - 19). St. Clair
pulled his knife out at this point since he thought he would be attacked by Mello’s
group. (R - v.6 - 228). While Huizar was kicking Mello, Valdez brandished his taser
to keep the people with Mello from stopping Huizar. (R - v.3 - 147; R - v.4 - 208).
The taser was inches from Shay’s eyes, and Shay could hear the taser. (R - v.5 - 48,
83). Shay felt very threatened at this point. (R - v.5 - 83). At this point, Hill began
fighting with another person, and then another person from Mello’s group confronted
Hill and Hill then assaulted that second person too and knocked out one person. (R -
v.4 - 208-210, 214; R - v.6 - 30-31, 104). Mello was limp on the asphalt when Huizar
repeatedly kicked him in the head. (R - v.5 - 76). Mello sustained a swollen eye,
fractured nose, and bleeding face and eye. (R - v.4 - 113-115). Mello stated that his
memory was adversely affected by these injuries to his head. (R - v.4 - 127).
6
Shay attempted to stop Huizar from continuing to kick Mello in the head. (R -
v.4 - 116-117). Shay stated that she thought Mello would be killed if Shay did not
stop the kicking. (R - v.5 - 47, 77). Shay thought she would be killed during this
fighting. (R - v.5 - 85). Emily then assaulted Shay and they began fighting each
other. (R - v.3 - 149-152; R - v.4 - 118; R - v.5 - 48-50, 79-80, 82, 97; R - v.6 - 100).
Everyone “got wound up” when Emily and Shay were fighting, and it turned
into “a real big brawl.” (R - v.5 - 83; R - v.6 - 26, 104). Nobody wanted to stop any
of the fighting, and “a bunch of people have weapons” so it was “not a good
situation.” (R - v.6 - 191). A big fight broke out and “everybody just started
swinging” and Huizar’s crew “pulled out more weapons.” (R - v.6 - 192). Jonathan
was terrified when he saw the knives and Taser. (R - v.7 - 179).
Shay was on the ground and Valdez and Jacob and Hill and Aldana and “a lot
of other people” in Huizar’s group began hitting and punching Shay in the back of the
head while she was on the ground. (R - v.4 - 117-118; R - v.5 - 84, 97; R - v.6 - 27,
101-102, 106). Valdez had his taser in one hand and was hitting Shay with his other
hand. (R - v.6 - 149, 191). Hill also kicked Shay while Shay was on the ground. (R -
v.5 - 96). Jonathan attempted to help Shay. (R - v.6 - 197). Everyone then began
fighting and it was a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6
- 26). A person from Huizar’s group pointed two knives at a person from Mello’s
group. (R - v.6 - 147, 153).
7
During the fighting, Jonathan Rosario attempted to stop the complainant, Kevin
Hill, from hitting Shay and continuing the fighting. (R - v.6 - 109-110, 112; R - v.7 -
195, 196). Hill struck Jonathan who then fell to the ground. (R - v.6 - 109-110; R -
v.7 - 197-203). Hill (who was nineteen years old) had Jonathan (who was only
seventeen years old) on the asphalt and was beating Jonathan. (R - v.6 - 109-110; R -
v.7 - 48-49, 52, 64, 159). At this time “it was a free for all. Everybody was hitting
everybody.” (R - v.7 - 56). Hill was punching Jonathan in the head and banging his
head on the asphalt street. (R - v.7 - 203). During this assault, Jonathan sustained
wounds to include a head injury, chin injury, lip injury, bruising to the neck and chest,
and an elbow injury. (R - v.5 - 91; R - v.7 - 210-216; R - v.10 - State’s Exhibit 37).
Jonathan suffered a concussion from the beating by Hill, and Hill then began to choke
Jonathan. (R - v.7 - 178, 203, 205). Jonathan was blacking out and thought he was
going to die, so he pushed Hill away from him with his hand and stabbed Kevin with
the paring knife. (R - v.7 - 205). Someone pulled Hill off of Jonathan and the fighting
ended. (R - v.7 - 56).
After the fighting ended, Hill stood up but something was wrong with him. (R -
v.6 - 153). When Hill stood, the fighting was already ended. (R - v.6 - 155). Jonathan
was standing by Shay. (R - v.6 - 154). As Mello’s group were walking toward their
car, Huizar’s crew were gathered around Hill. (R - v.6 - 155).
8
Someone yelled that Hill had been “snuffed” and everyone ran away from the
area since Emily was running toward her house where she had her gun, and Mello’s
group including Jonathan feared retaliation. (R - v.7 - 57). Jonathan was very upset
and shaking after the fight with Hill. (R - v.5 - 94). Jonathan was bleeding while he
was in the car and there was a lot of blood coming from Jonathan. (R - v.6 - 200-201).
Everyone in the car with Mello and Jonathan were in shock since the rematch fight
was not a clean fight given how Huizar’s crew attacked Mello’s friends. (R - v.5 -
94). Everything happened in about four or five minutes. (R - v.4 - 124).
SUMMARY OF THE ARGUMENT
POINT OF ERROR ONE
A rational jury could not have concluded that the Appellant’s belief that the
complainant, Hill, threatened him with deadly force was not objectively reasonable.
A reasonable juror would have concluded that the Appellant, fearing for his life,
stabbed Hill during Hill’s attack on the Appellant. The jury’s decision rejecting the
Appellant’s claim of self-defense was not one a rational juror could make when
presented with the facts of this case. The evidence is insufficient to support the jury’s
rejection of self-defense.
POINT OF ERROR TWO
Given the terrifying circumstances for the Appellant, the attack on the
Appellant by the complainant, the choking of the Appellant by the complainant, and
9
given the injuries and damage done to the Appellant by the complainant, the evidence
is legally insufficient to support the jury’s negative finding on the punishment issue
of sudden passion. The Appellant should receive a new punishment hearing.
POINT OF ERROR THREE
From all the evidence, a rational jury would have reasonably concluded that the
complainant was provoking the Appellant when the stabbing occurred, and, therefore,
the Appellant was acting under the immediate influence of sudden passion arising
from an adequate cause when he stabbed the complainant. After considering all of the
relevant evidence, and deferring to the jury’s determinations regarding the weight and
credibility of the testimony, the judgment is so against the great weight and
preponderance of the evidence so as to be manifestly unjust. Accordingly, this Court
should hold that the evidence is factually insufficient to support the jury’s negative
finding on the punishment issue of sudden passion. The Appellant should receive a
new punishment hearing.
POINT OF ERROR ONE
THE JURY’S REJECTION OF THE APPELLANT’S
CLAIM OF SELF-DEFENSE IS NOT SUPPORTED
BY LEGALLY SUFFICIENT EVIDENCE.
ARGUMENT AND AUTHORITIES IN
SUPPORT OF POINT OF ERROR ONE
When a defendant raises the issue of self-defense, he has the burden of
producing some evidence to support this defense. See Zuliani v. State, 97 S.W.3d
10
589, 594 (Tex. Crim. App. 2003). Once a defendant produces some evidence to
support this defense, the State has the burden of persuasion to disprove the defense.
Id. The burden of persuasion does not require the production of evidence, but it does
require that the State persuade the jury beyond a reasonable doubt that the defendant
did not act in self-defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App.
2008); Zuliani, supra, 97 S.W.3d at 594. Self-defense is an issue of fact to be
determined by the jury, and the jury is free to accept or reject any defensive evidence
on this issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). A jury
that returns a verdict of guilty implicitly rejects a theory of self-defense. Zuliani,
supra, 97 S.W.3d at 594; Saxton, supra, 804 S.W.2d at 914.
Because the State carries the burden of persuasion to disprove self-defense
beyond a reasonable doubt, an appellate court reviews sufficiency of the evidence
under the standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). Smith v. State, 355 S.W.3d 138, 144-145 (Tex. App. -
Houston [1st Dist.] 2011, pet. ref’d) (applying Jackson standard to jury’s rejection of
self-defense claim). Under the Jackson standard, an appellate court must determine
whether, after viewing all evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of murder beyond a
reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
11
(citing Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.
- Texarkana 2010, pet. ref’d). An appellate court examines legal sufficiency under
Brooks while giving deference to the responsibility of the jury “to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson, 443 U.S. at 318-319); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). Sufficiency of the evidence is measured by the elements of
the offense as defined by a hypothetically correct jury charge. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “sets
out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.” Id.
Self-defense justifies the use of deadly force under certain circumstances.
Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). Section 9.32(a) of the
Texas Penal Code states that the use of deadly force is justified “(1) if the actor would
be justified in using force against the other under Section 9.31; and (2) 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 . . . .” Section 9.33 of the Texas Penal Code states that the use of deadly force
12
to protect a third person is justified “(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.” Section 9.31 of the Texas Penal
Code justifies the use of force “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.”
Jonathan did not appear as if he was ready to use the knife before the start of
the rematch. (R - v.6 - 132). Prior to the rematch fight, Emily from Huizar’s crew
threatened Mello’s group. (R - v.5 - 82-83). Emily was in a bad mood. (R - v.6 - 177-
178). Emily made a statement that was threatening to Mello’s group that she had “a
40 Glock” nearbyat her house and would use it. (R - v.6 - 178-180; R - v.7 - 34). This
terrified Jonathan since he is afraid of guns after his friend was shot and killed when
Jonathan was fourteen years old. (R - v.7 - 176-177). Hill told one of the people from
Mello’s group that, “I don’t give a fuck about you. Get the fuck away from me.” (R -
v.7 - 29-30). It was clear that everyone in Huizar’s crew wanted to fight Mellos’s
group. (R - v.6 - 187).
13
Shay attempted to stop Huizar from continuing to kick Mello in the head. (R -
v.4 - 116-117). Shay stated that she thought Mello would be killed if Shay did not
stop the kicking. (R - v.5 - 47, 77). Shay thought she would be killed during this
fighting. (R - v.5 - 85). Emily then assaulted Shay and they began fighting each
other. (R - v.3 - 149-152; R - v.4 - 118; R - v.5 - 48-50, 79-80, 82, 97; R - v.6 - 100).
Everyone “got wound up” when Emily and Shay were fighting, and it turned
into “a real big brawl.” (R - v.5 - 83; R - v.6 - 26, 104). Nobody wanted to stop any
of the fighting, and “a bunch of people have weapons” so it was “not a good
situation.” (R - v.6 - 191). A big fight broke out and “everybody just started
swinging” and Huizar’s crew “pulled out more weapons.” (R - v.6 - 192). Jonathan
was terrified when he saw the knives and Taser. (R - v.7 - 179).
Shay was on the ground and Valdez and Jacob and Hill and Aldana and “a lot
of other people” in Huizar’s group began hitting and punching Shay in the back of the
head while she was on the ground. (R - v.4 - 117-118; R - v.5 - 84, 97; R - v.6 - 27,
101-102, 106). Valdez had his taser in one hand and was hitting Shay with his other
hand. (R - v.6 - 149, 191). Hill also kicked Shay while Shay was on the ground. (R -
v.5 - 96). Jonathan attempted to help Shay. (R - v.6 - 197). Everyone then began
fighting and it was a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6
- 26). A person from Huizar’s group pointed two knives at a person from Mello’s
group. (R - v.6 - 147, 153).
14
During the fighting, Jonathan Rosario attempted to stop the complainant, Kevin
Hill, from hitting Shay and continuing the fighting. (R - v.6 - 109-110, 112; R - v.7 -
195, 196). Hill struck Jonathan who then fell to the ground. (R - v.6 - 109-110; R -
v.7 - 197-203). Hill (who was nineteen years old) had Jonathan (who was only
seventeen years old) on the asphalt and was beating Jonathan. (R - v.6 - 109-110; R -
v.7 - 48-49, 52, 64, 159). At this time “it was a free for all. Everybody was hitting
everybody.” (R - v.7 - 56). Hill was punching Jonathan in the head and banging his
head on the asphalt street. (R - v.7 - 203). During this assault, Jonathan sustained
wounds to include a head injury, chin injury, lip injury, bruising to the neck and chest,
and an elbow injury. (R - v.5 - 91; R - v.7 - 210-216; R - v.10 - State’s Exhibit 37).
Jonathan suffered a concussion from the beating by Hill, and Hill then began to choke
Jonathan. (R - v.7 - 178, 203, 205). Jonathan was blacking out and thought he was
going to die, so he pushed Hill away from him with his hand and stabbed Kevin with
the paring knife. (R - v.7 - 205). Someone pulled Hill off of Jonathan and the fighting
ended. (R - v.7 - 56).
Jonathan was very upset and shaking after the fight with Hill. (R - v.5 - 94).
Jonathan was bleeding while he was in the car and there was a lot of blood coming
from Jonathan. (R - v.6 - 200-201). Everyone in the car with Mello and Jonathan were
in shock since the rematch fight was not a clean fight given how Huizar’s crew
15
attacked Mello’s friends. (R - v.5 - 94). Everything happened in about four or five
minutes. (R - v.4 - 124).
Given the above facts, a rational jury could not have concluded that the
Appellant’s belief that the complainant, Hill, threatened him with deadly force was
not objectively reasonable. A reasonable juror would have concluded that the
Appellant, fearing for his life, stabbed Hill during Hill’s attack on the Appellant. The
jury’s decision rejecting the Appellant’s claim of self-defense was not one a rational
juror could make when presented with the facts of this case. The evidence is
insufficient to support the jury’s rejection of self-defense.
POINT OF ERROR TWO
THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO SUPPORT THE JURY’S REJECTION OF THE
CLAIM THAT THE MURDER WAS COMMITTED
UNDER THE IMMEDIATE INFLUENCE OF
SUDDEN PASSION ARISING FROM AN
ADEQUATE CAUSE.
ARGUMENT AND AUTHORITIES IN
SUPPORT OF POINT OF ERROR TWO
An appellate court reviews challenges to the legal sufficiency of the evidence
with respect to issues on which a defendant had the burden of proof by a
preponderance of the evidence, like sudden passion, under the legal sufficiency
standard utilized in civil cases. See Smith v. State, supra, 355 S.W.3d at 147-148;
16
Cleveland v. State, 177 S.W.3d 374, 387-388 (Tex. App. - Houston [1st Dist.] 2005,
pet. ref’d). The civil legal sufficiency standard requires a two-step analysis. First, a
reviewing court examines the record for any evidence that supports the jury’s
negative finding while ignoring all evidence to the contrary. See Smith, 355 S.W.3d
at 148; Cleveland, 177 S.W.3d at 387. Second, if no evidence supports the negative
finding, a reviewing court then examines the entire record to determine whether the
evidence establishes the issue as a matter of law. Smith, 355 S.W.3d at 148;
Cleveland, 177 S.W.3d at 387. A reviewing court defers to the fact-finder’s
determination of the weight and credibility to give the testimony and the evidence at
trial. See Cleveland, 177 S.W.3d at 388-389.
In the case at bar, the trial judge instructed the jury as to sudden passion which
the jury rejected. (T - 85-88, 93). The evidence was legally insufficient to support the
jury’s negative finding on the punishment issue of sudden passion. Everyone “got
wound up” when Emily and Shay were fighting, and it turned into “a real big brawl.”
(R - v.5 - 83; R - v.6 - 26, 104). Nobody wanted to stop any of the fighting, and “a
bunch of people have weapons” so it was “not a good situation.” (R - v.6 - 191). A
big fight broke out and “everybody just started swinging” and Huizar’s crew “pulled
out more weapons.” (R - v.6 - 192). Jonathan was terrified when he saw the knives
and Taser. (R - v.7 - 179).
17
Shay was on the ground and Valdez and Jacob and Hill and Aldana and “a lot
of other people” in Huizar’s group began hitting and punching Shay in the back of the
head while she was on the ground. (R - v.4 - 117-118; R - v.5 - 84, 97; R - v.6 - 27,
101-102, 106). Valdez had his taser in one hand and was hitting Shay with his other
hand. (R - v.6 - 149, 191). Hill also kicked Shay while Shay was on the ground. (R -
v.5 - 96). Jonathan attempted to help Shay. (R - v.6 - 197). Everyone then began
fighting and it was a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6
- 26). A person from Huizar’s group pointed two knives at a person from Mello’s
group. (R - v.6 - 147, 153).
During the fighting, Jonathan Rosario attempted to stop the complainant, Kevin
Hill, from hitting Shay and continuing the fighting. (R - v.6 - 109-110, 112; R - v.7 -
195, 196). Hill struck Jonathan who then fell to the ground. (R - v.6 - 109-110; R -
v.7 - 197-203). Hill (who was nineteen years old) had Jonathan (who was only
seventeen years old) on the asphalt and was beating Jonathan. (R - v.6 - 109-110; R -
v.7 - 48-49, 52, 64, 159). At this time “it was a free for all. Everybody was hitting
everybody.” (R - v.7 - 56). Hill was punching Jonathan in the head and banging his
head on the asphalt street. (R - v.7 - 203). During this assault, Jonathan sustained
wounds to include a head injury, chin injury, lip injury, bruising to the neck and chest,
and an elbow injury. (R - v.5 - 91; R - v.7 - 210-216; R - v.10 - State’s Exhibit 37).
Jonathan suffered a concussion from the beating by Hill, and Hill then began to choke
18
Jonathan. (R - v.7 - 178, 203, 205). Jonathan was blacking out and thought he was
going to die, so he pushed Hill away from him with his hand and stabbed Kevin with
the paring knife. (R - v.7 - 205). Someone pulled Hill off of Jonathan and the fighting
ended. (R - v.7 - 56).
Jonathan was very upset and shaking after the fight with Hill. (R - v.5 - 94).
Jonathan was bleeding while he was in the car and there was a lot of blood coming
from Jonathan. (R - v.6 - 200-201). Everyone in the car with Mello and Jonathan were
in shock since the rematch fight was not a clean fight given how Huizar’s crew
attacked Mello’s friends. (R - v.5 - 94). Everything happened in about four or five
minutes. (R - v.4 - 124).
Given the above facts including the terrifying circumstances for the Appellant,
the attack on the Appellant by the complainant, the choking of the Appellant by the
complainant, and given the injuries and damage done to the Appellant by the
complainant, the evidence is legally insufficient to support the jury’s negative finding
on the punishment issue of sudden passion. The Appellant should receive a new
punishment hearing.
19
POINT OF ERROR THREE
THE EVIDENCE WAS FACTUALLY
INSUFFICIENT TO SUPPORT THE JURY’S
REJECTION OF THE CLAIM THAT THE MURDER
WAS COMMITTED UNDER THE IMMEDIATE
INFLUENCE OF SUDDEN PASSION ARISING
FROM AN ADEQUATE CAUSE.
ARGUMENT AND AUTHORITIES IN
SUPPORT OF POINT OF ERROR THREE
A reviewing court reviews a challenge to the factual sufficiency of the evidence
supporting a jury’s negative finding on an issue that the defendant had to prove by a
preponderance of the evidence under the factual sufficiency standard announced in
Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990). See Zuniga v. State,
144 S.W.3d 477, 482 (Tex. Crim. App. 2004) (holding that Meraz standard was
suitable for sufficiency reviews regarding affirmative defenses because burden of
proof on defendant is preponderance of evidence), overruled on other grounds by
Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006); Cleveland, 177 S.W.3d at
390-391. The evidence supporting a jury’s negative finding on the issue of sudden
passion is insufficient if, after considering all relevant evidence, the judgment is so
against the great weight and preponderance of the evidence so as to be manifestly
unjust. Meraz, 785 S.W.2d at 154-155. A reviewing court reviews all of the evidence
neutrally and defers to the fact-finder’s determination of the weight and credibility
given to any witness’s testimony. Cleveland, 177 S.W.3d at 390-391.
20
In the case at bar, the trial judge instructed the jury as to sudden passion which
the jury rejected. (T - 85-93). With respect to this challenge to the factual sufficiency
of the evidence supporting the jury’s negative finding on the issue of sudden passion,
the following facts are relevant. Everyone “got wound up” when Emily and Shay
were fighting, and it turned into “a real big brawl.” (R - v.5 - 83; R - v.6 - 26, 104).
Nobody wanted to stop any of the fighting, and “a bunch of people have weapons”
so it was “not a good situation.” (R - v.6 - 191). A big fight broke out and “everybody
just started swinging” and Huizar’s crew “pulled out more weapons.” (R - v.6 - 192).
Jonathan was terrified when he saw the knives and Taser. (R - v.7 - 179).
Shay was on the ground and Valdez and Jacob and Hill and Aldana and “a lot
of other people” in Huizar’s group began hitting and punching Shay in the back of the
head while she was on the ground. (R - v.4 - 117-118; R - v.5 - 84, 97; R - v.6 - 27,
101-102, 106). Valdez had his taser in one hand and was hitting Shay with his other
hand. (R - v.6 - 149, 191). Hill also kicked Shay while Shay was on the ground. (R -
v.5 - 96). Jonathan attempted to help Shay. (R - v.6 - 197). Everyone then began
fighting and it was a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6
- 26). A person from Huizar’s group pointed two knives at a person from Mello’s
group. (R - v.6 - 147, 153).
During the fighting, Jonathan Rosario attempted to stop the complainant, Kevin
Hill, from hitting Shay and continuing the fighting. (R - v.6 - 109-110, 112; R - v.7 -
21
195, 196). Hill struck Jonathan who then fell to the ground. (R - v.6 - 109-110; R -
v.7 - 197-203). Hill (who was nineteen years old) had Jonathan (who was only
seventeen years old) on the asphalt and was beating Jonathan. (R - v.6 - 109-110; R -
v.7 - 48-49, 52, 64, 159). At this time “it was a free for all. Everybody was hitting
everybody.” (R - v.7 - 56). Hill was punching Jonathan in the head and banging his
head on the asphalt street. (R - v.7 - 203). During this assault, Jonathan sustained
wounds to include a head injury, chin injury, lip injury, bruising to the neck and chest,
and an elbow injury. (R - v.5 - 91; R - v.7 - 210-216; R - v.10 - State’s Exhibit 37).
Jonathan suffered a concussion from the beating by Hill, and Hill then began to choke
Jonathan. (R - v.7 - 178, 203, 205). Jonathan was blacking out and thought he was
going to die, so he pushed Hill away from him with his hand and stabbed Kevin with
the paring knife. (R - v.7 - 205). Someone pulled Hill off of Jonathan and the fighting
ended. (R - v.7 - 56).
Jonathan was very upset and shaking after the fight with Hill. (R - v.5 - 94).
Jonathan was bleeding while he was in the car and there was a lot of blood coming
from Jonathan. (R - v.6 - 200-201). Everyone in the car with Mello and Jonathan were
in shock since the rematch fight was not a clean fight given how Huizar’s crew
attacked Mello’s friends. (R - v.5 - 94). Everything happened in about four or five
minutes. (R - v.4 - 124).
22
From this evidence, a rational jury would have reasonably concluded that the
complainant was provoking the Appellant when the stabbing occurred, and, therefore,
the Appellant was acting under the immediate influence of sudden passion arising
from an adequate cause when he stabbed the complainant. After considering all of the
relevant evidence, and deferring to the jury’s determinations regarding the weight and
credibility of the testimony, the judgment is so against the great weight and
preponderance of the evidence so as to be manifestly unjust. Accordingly, this Court
should hold that the evidence is factually insufficient to support the jury’s negative
finding on the punishment issue of sudden passion. The Appellant should receive a
new punishment hearing.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant prays this Court
reverse the judgment and sentence and order a new trial in this cause, or in the
alternative, without waiving the foregoing, remand this cause for a new punishment
hearing.
23
Respectfully submitted,
GROSS & ESPARZA, P.L.L.C.
/s/ Michael C. Gross
Michael C. Gross
State Bar No. 08534480
106 South St. Mary’s Street, Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920 Fax
Attorney for the Appellant,
JONATHAN ROSARIO
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Brief for the Appellant was
delivered to Enrico Valdez, Assistant District Attorney, 300 Dolorosa, San Antonio,
Texas 78205 on the 29th day of April 2015.
/s/ Michael C. Gross
CERTIFICATE OF COMPLIANCE
1. The brief complies with the type-volume limitation imposed by Rule 9.4(i) of
the Texas Rules of Appellate Procedure because the brief contains 5,775 words
excluding the caption, identity of parties and counsel, statement regarding oral
argument, table of contents, table of authorities, statement of the case, statement of
issues presented, signature, proof of service, certification, certificate of compliance,
and appendix.
2. The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been prepared
in a proportionally spaced typeface using WordPerfect 6.1 in 14 point font and Times
New Roman type style.
/s/ Michael C. Gross
24