ACCEPTED
01-14-00561-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/24/2015 4:10:53 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00561-CR
FILED IN
IN THE COURT OF APPEALS FOR THE1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST DISTRICT OF TEXAS 11/24/2015 4:10:53 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
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
JONATHAN ROSARIO, the Appellant in Cause Number 2013-CR-5658 in the
186th District Court of Bexar County, Texas, pursuant to Rule 49 of the Texas Rules
of Appellate Procedure, submits this Motion for Rehearing moving this Honorable
Court to reconsider its Opinion of November 10, 2015 affirming the judgment and
sentence of conviction.
1
GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED BY RULING
THAT THE JURY’S REJECTION OF THE
APPELLANT’S CLAIM OF SELF-DEFENSE WAS
SUPPORTED BY LEGALLY SUFFICIENT
EVIDENCE.
ARGUMENT AND AUTHORITIES
In the case at bar, this Court held that “the jury could have rationally chosen
not to believe [the Appellant’s] testimony about the sequence of events and thus
implicitly rejected his self-defense claim.” Rosario v. State, No. 01-14-00561-CR at
8 (Tex. App. - Houston [1st Dist.], November 10, 2015). The appropriate standard of
review, however, regarding whether or not the evidence was legally sufficient to
support the jury’s rejection of a self-defense claim is to view “all” the evidence – not
merely a defendant’s testimony. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010); Smith v. State, 355 S.W.3d 138, 144-145 (Tex. App. - Houston [1st Dist.]
2011, pet. ref’d). This Court in the case at bar, however, focused solely on the
Appellant’s testimony when this Court stated that, “By testifying, Rosario produced
‘some evidence’ to support a self-defense claim.” Rosario v. State, supra. This Court
failed to consider the testimony of other witnesses which also supported the self-
defense claim.
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It is clear from all the evidence at trial that Hill (the complainant) was in an
agitated mood. (R - v.6 - 176-177). It was undisputed that a text message was sent
from the group Hill was with that stated, “Get ready, we fittin’ to fuck up Romello.”
(R - v.4 - 10, 12). The group Hill was with had knives, brass knuckles, and a taser. (R
- v.3 - 71-75, 122-123, 144; R - v.4 - 99; R - v.6 - 28-29, 75, 220). A person in the
group Hill was with made a statement that was threatening in that she had “a 40
Glock” nearby at her house and would use it. (R - v.6 - 178-180; R - v.7 - 34). Hill
stated to the other group, “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 Hill’s group wanted to fight. (R - v.6 -
187). Hill’s group had some dogs with them that were threatening. (R - v.6 - 135). If
there was fighting, there was a worry that the dogs might attack someone. (R - v.6 -
135). Hill and another person from his group were drinking alcohol at this time. (R -
v.7 - 31-32). The group Hill was with outnumbered the group which included the
Appellant, Jonathan. (R - v.5 - 44).
Prior to fighting with Jonathan, Hill fought with two people. (R - v.4 - 19). A
member of Hill’s group brandished his taser in a threatening manner at the other
group. (R - v.3 - 147; R - v.4 - 208). At this point, Hill began fighting with another
person, and then assaulted another person and knocked out one person. (R - v.4 - 208-
210, 214; R - v.6 - 30-31, 104). Everyone “got wound up” and it turned into “a real
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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 members
of Hill’s group “pulled out more weapons.” (R - v.6 - 192). Jonathan was terrified
when he saw the knives and Taser. (R - v.7 - 179). Everyone began fighting and it
was a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6 - 26).
During the fighting, Jonathan attempted to stop 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 Hill with
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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). Someone yelled that Hill had been “snuffed”
and everyone ran away from the area since 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). Everything happened in about four or five minutes. (R -
v.4 - 124).
Based upon a review of all the above evidence and not merely the testimony
of the Appellant, the jury’s rejection of the self-defense claim was not supported by
legally sufficient evidence. This Court erred by limiting its decision only to the
testimony of the Appellant. See Jackson v. Virginia, supra; Brooks v. State, supra;
Smith v. State, supra. This Honorable Court should withdraw its opinion of
November 10, 2015, and sustain the Appellant’s Point of Error One.
GROUND FOR REVIEW NUMBER TWO
THE COURT OF APPEALS ERRED BY RULING
THAT THE EVIDENCE WAS LEGALLY
SUFFICIENT TO SUPPORT THE JURY’S
REJECTION OF THE CLAIM THAT THE MURDER
WAS COMMITTED UNDER THE IMMEDIATE
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INFLUENCE OF SUDDEN PASSION ARISING
FROM AN ADEQUATE CAUSE.
ARGUMENT AND AUTHORITIES
In the case at bar, this Court held that, “The jury could have rationally
concluded that, by anticipating the fight and preparing a response, Rosario had time
to deliberate and was not acting under the immediate influence of sudden passion.”
Rosario v. State, supra, at 11. This Court stated that, “Rosario asserts that because
Hill attacked, choked, and injured him, the evidence is legally insufficient to support
the jury’s negative finding on the punishment issue of sudden passion.” Id. This Court
failed to consider all the evidence relied upon by the Appellant as to this issue.
Witnesses testified that prior to the assault on the Appellant by Hill, everyone
“got wound up” and it turned into “a real big brawl.” (R - v.5 - 83; R - v.6 - 26, 104).
Many people were 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 Hill’s group “pulled out more weapons.” (R - v.6 - 192). Jonathan was
terrified when he saw the knives and Taser brandished by Hill’s group. (R - v.7 -
179). Prior to the assault on the Appellant by Hill, everyone began fighting and it was
a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6 - 26).
Witnesses testified that Hill struck the Appellant (Jonathan) who then fell to
the ground. (R - v.6 - 109-110; R - v.7 - 197-203). Several state and defense witnesses
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testified that Hill had Jonathan on the asphalt and was beating Jonathan. (R - v.6 -
109-110; R - v.7 - 48-49, 52, 64, 159). The evidence was undisputed that during this
assault on Jonathan by Hill, 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).
Jonathan could not have anticipated that Hill would assault Jonathan given the
size of the two groups and give the above described sudden turn of events that
precipitated the fighting between the two groups. Additionally, Jonathan could not
have anticipated that the fighting between the two groups would result in Hill
7
assaulting Jonathan. The jury could not have rationally concluded that Jonathan
anticipated the fight as claimed by this Court. The jury could not have rationally
concluded, as claimed by this Court, that Jonathan had time to deliberate especially
since state and defense witnesses testified that, prior to Hill assaulting Jonathan,
everyone began fighting and it was a very intense and emotional situation (R - v.4 -
122, 124; R - v.6 - 26) and “it was a free for all. Everybody was hitting everybody.”
(R - v.7 - 56). Clearly, Jonathan was acting under the immediate influence of sudden
passion. Based upon a review of all the above evidence from state and defense
witnesses, the jury’s rejection of the sudden passion claim was not supported by
legally sufficient evidence. This Honorable Court should withdraw its opinion of
November 10, 2015, and sustain the Appellant’s Point of Error Two.
GROUND FOR REVIEW NUMBER THREE
THE COURT OF APPEALS ERRED BY RULING
THAT THE EVIDENCE WAS FACTUALLY
SUFFICIENT 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 the case at bar, this Court held that “there was factually-sufficient evidence
to support the jury’s rejection of Rosario’s sudden-passion claim.” Rosario v. State,
supra, at 13. This Court stated that, “If the jury believed other witnesses instead of
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Rosario, it could have believed that Rosario had time to cool off between the end of
the fight and the moment he approached Hill with a knife.” Id. Jonathan’s testimony
was not the only evidence of sudden passion. This Court failed to consider all the
evidence relied upon by the Appellant as to this issue.
State witnesses Godley and Valdez testified that prior to the assault on the
Appellant by Hill, everyone “got wound up” and it turned into “a real big brawl.” (R -
v.5 - 83; R - v.6 - 26, 104). State witness Stuckey testified that prior to the assault on
the Appellant by Hill, many people were fighting, and “a bunch of people have
weapons” so it was “not a good situation.” (R - v.6 - 191). State witness Suckey
testified that a big fight broke out and “everybody just started swinging” and Hill’s
group “pulled out more weapons.” (R - v.6 - 192). Jonathan was terrified when he saw
the knives and Taser brandished by Hill’s group. (R - v.7 - 179). State witnesses
James and Valdez testified that, prior to the assault on the Appellant by Hill, everyone
began fighting and it was a very intense and emotional situation. (R - v.4 - 122, 124;
R - v.6 - 26).
Witnesses testified that Hill struck the Appellant (Jonathan) who then fell to
the ground. (R - v.6 - 109-110; R - v.7 - 197-203). Several state and defense witnesses
testified that Hill had Jonathan on the asphalt and was beating Jonathan. (R - v.6 -
109-110; R - v.7 - 48-49, 52, 64, 159). The evidence was undisputed that during this
9
assault on Jonathan by Hill, 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).
State witness Godley testified that Jonathan was very upset and shaking after
the fight with Hill. (R - v.5 - 94). State witness Stuckey testified that, after the fight,
Jonathan was bleeding while he was in the car and there was a lot of blood coming
from Jonathan. (R - v.6 - 200-201).
Based upon the above testimony of state and defense witnesses, Jonathan’s
testimony was not the only testimony regarding the assault by Hill on Jonathan.
Contrary to this Court’s statement, state and defense witnesses other than Jonathan
established the fact that Jonathan did not have time to cool off between the time of
the fight with Hill and when Jonathan stabbed Hill with the knife during this fight.
There was not factually-sufficient evidence to support the jury’s rejection of
Jonathan’s sudden-passion claim. This Court failed to consider all the evidence relied
upon by the Appellant as to this issue. Based upon a review of all the above evidence
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from state and defense witnesses, the jury’s rejection of the sudden passion claim was
not supported by factually sufficient evidence. This Honorable Court should
withdraw its opinion of November 10, 2015, and sustain the Appellant’s Point of
Error Three.
PRAYER
WHEREFORE, for the reasons stated above and for the reasons stated in the
Brief for the Appellant, this Court should grant the Appellant’s Motion for Rehearing
and upon rehearing, reverse the judgment of the trial judge and enter a judgment of
acquittal, or in the alternative, remand this cause for a new trial, or in the alternative,
remand this cause for a new punishment hearing.
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
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was emailed to
Enrico Valdez, Assistant District Attorney, jeanette.canales@bexar.org on the 24th
day of November 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 2,496 words
excluding the 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
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