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
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
While Officer Sessions attempted to execute an arrest warrant upon Walter
Orellana (appellant), the latter placed his SUV in reverse in effort to leave. By then,
though, appellant had already provided the officer with a false identity and ignored the
directive to exit the vehicle. So too had he experienced the officer opening the SUV’s
door and grasping him to effectuate the arrest. What then did appellant do? He
responded by “reversing really fast” in the direction of a patrol car while kicking Sessions,
who had jumped on the moving SUV’s running board. Given the direction of appellant’s
travel and the location of the squad car, Sessions realized he “was going to get crushed
between my car and his door.” Thus, he “feared for his life” and drew his weapon. It
appears he fired it, as well, before the SUV collided with the patrol unit. The moving
vehicle apparently stopped or slowed quickly after the collision without Sessions being
injured. At that point, appellant reached for a sawed-off shotgun in the front of the
Explorer. Sessions noticed that and began moving away while again firing his handgun.
Soon he felt pellets from the shotgun hit him. He fell to the ground, rose, and continued
to fire as he resumed his effort to find cover. The entirety of this event occurred over a
matter of seconds as depicted in videos and still photos of it.
Appellant contends that he shot the officer in self-defense. The jury obviously
rejected that contention when it opted to convict him of aggravated assault against a
public servant by using a deadly weapon. Through one issue, appellant argues that the
evidence was insufficient to support the rejection of his claimed defense. We affirm.
One 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.’“ Braughton v. State, 569 S.W.3d 592,
606 (Tex. Crim. App. 2018) (quoting TEX. PENAL CODE ANN. § 9.31(a)). However, the use
of force is not justified when responding to verbal provocation alone or when the actor
provoked the other’s use or attempted use of unlawful force. Id.; TEX. PENAL CODE ANN.
§ 9.31(b) (West 2019).
Next, one claiming self-defense has the burden to produce evidence supporting it,
while the State has the burden to disprove the issue. Braughton v. State, 569 S.W.3d at
608. The latter burden, though, does not require the production of evidence, but rather
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only that the State prove its case beyond a reasonable doubt. Id. So, in addressing an
issue like that at bar, we do not look at whether the State presented evidence refuting
appellant’s self-defense testimony; we instead determine if 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 crime beyond a reasonable doubt and also would have
found against appellant on the self-defense issue beyond a reasonable doubt. Id. at 608–
09. That said, we return to the evidence of record mentioned within the opening
paragraph of this opinion.
First, the evidence illustrated appellant shot a uniformed police officer who was
attempting to execute an arrest warrant. That was the substance of the allegations in the
State’s indictment. Moreover, that is the substance of the crime of aggravated assault
upon a public servant with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a) &
(b)(2)(B) (West 2019) (stating that one commits aggravated assault when 1) committing
assault upon someone he knows is a public servant while the servant is lawfully
discharging an official duty and 2) uses or exhibits a deadly weapon during the assault).
Second, it may be true that Officer Sessions fired his weapon first, as appellant
asserts. Yet, the jury had before it evidence from which it could reasonably conclude that
appellant provoked him. Appellant both sped in reverse toward a stationary squad car
with the officer hanging outside the moving vehicle and kicked at him. Seeing the
possibility of being crushed, the officer reacted by drawing his weapon to end what he
perceived to be an oncoming threat of injury or death. As said in Braughton, one is not
justified in using force when he provokes the other’s use or attempted use of unlawful
force. Braughton, 569 S.W.3d at 606–07. A jury could reasonably conclude, beyond
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reasonable doubt, that appellant’s use of his vehicle as a device immediately threatening
the life of a police officer can reasonably provoke the officer’s use of force to protect
himself.
Two other matters merit comment. First, when appellant reached for the sawed-
off shotgun, he was in the midst of attempting to thwart Sessions’s effort to arrest him
pursuant to an outstanding warrant. Statute provides that one commits an offense if he
intentionally flees from someone he knows is a peace officer attempting to lawfully arrest
or detain him. TEX. PENAL CODE ANN. § 38.04(a). The grade of that offense ranges from
a Class A misdemeanor to a second-degree felony, depending on the circumstances. Id.
§ 38.04(b) & (c). Thus, the jury had before it evidence negating appellant’s contention
“that he was not engaged in criminal activity at the time of the incident.” See id. §
9.31(a)(3) (stating that an actor’s belief that force was necessary is presumed reasonable
if the actor, among other things, was not engaged in criminal activity other than a class C
misdemeanor involving a traffic violation).
Second, among appellant’s discussion of self-defense we find little dedicated to
explaining why or how he believed Sessions’s initial use of force was unlawful. The
availability of self-defense depends upon whether the actor reasonably believed force
was immediately necessary to protect against the use or attempted use of “unlawful
force.” Id. § 9.31(a). Little is said about Sessions lacking the authority to arrest one who
is the subject of an outstanding arrest warrant. Nor is anything said about an officer’s
authority, or supposed lack thereof, to protect himself when, in effectuating an arrest, the
arrestee engages in assaultive or deadly conduct. Similarly missing is discussion about
an officer’s authority, or supposed lack thereof, to utilize deadly force when attempting to
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make an arrest. The latter two circumstances are especially telling since a peace officer
may be justified in using deadly force against someone when he reasonably believes 1)
the deadly force is immediately necessary to make a lawful arrest or prevent escape after
arrest and 2) there is a substantial risk that the arrestee will cause death or serious injury
to the officer. See id. § 9.51(c)(2). Again, the evidence before the jury included testimony
that Sessions was attempting to arrest appellant per an outstanding warrant when
appellant used his vehicle to place the officer in danger of serious injury, if not death.
And, it is this very evidence which tends to negate the requirement that his force was
motivated by the belief that Sessions engaged in “unlawful force” when Sessions sought
to protect against being crushed and/or appellant escaping.
Thus, we hold that the jury had before it legally sufficient evidence upon which to
conclude, beyond reasonable doubt, that appellant committed the assault with which he
was charged and did so while not acting in self-defense. The sole issue is overruled, and
the judgment affirmed.
Brian Quinn
Chief Justice
Do not publish.
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