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
CONCURRING OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
The majority concludes that the jury had before it sufficient evidence on which it
could conclude, beyond a reasonable doubt, that Appellant was not justified in using
deadly force against Officer Sessions because Appellant had “provoke[d] the [officer’s]
use or attempted use of unlawful deadly force” by rapidly reversing his vehicle while the
officer was attempting to remove Appellant from his vehicle while effecting a lawful arrest.
Relying on Braughton v. State, 569 S.W.3d 592, 606, 608-09 (Tex. Crim. App. 2018), and
section 9.31(b) of Texas Penal Code, the majority rejects Appellant’s sole issue, finding
that any rational trier of fact would have found the essential elements of the crime beyond
a reasonable doubt and could have reasonably rejected Appellant’s claim of self-defense
by concluding he provoked the officer’s use of force. Because I do not want to leave the
impression that Officer Sessions’s use of deadly force was “unlawful” in any way, I concur
in the result, but write separately.
One being placed under arrest does have the right to resist the unlawful use of
excessive force1—but such resistance must be judiciously exercised, with extreme
restraint, in order to avoid an escalation of hostilities in an arena fraught with the potential
of misinterpretation in the subsequent light of cool reflection. Specifically, the use of force
to resist an arrest is only justified (1) if, before the actor offers any resistance, the officer
uses or attempts to use greater force than necessary to make the arrest and (2) when
and to the degree the actor reasonably believes the force he chooses to use is
immediately necessary to protect himself against the officer’s use or attempted use of
excessive force. TEX. PENAL CODE ANN. § 9.31(c) (West 2019). The use of deadly force
is never justified under section 9.31(c) except as provided in sections 9.32 and 9.33. See
TEX. PENAL CODE ANN. § 9.31(d).
Under sections 9.32 and 9.33, in addition to the requirements of section 9.31(c), a
person is only justified in using deadly force against another 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 or (B) to prevent
the other’s imminent commission of aggravated kidnapping, murder, sexual assault,
1 “If the officer uses more force than necessary [to make an arrest], the suspect would then be
justified to resist arrest.” State Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001).
2
aggravated sexual assault, robbery, or aggravated robbery. See TEX. PENAL CODE ANN.
§ 9.32(a) (use of deadly force in defense of self) (emphasis added). See also § 9.33
(similar provision pertaining to the use of deadly force in defense of third persons).
As the majority has properly stated, when reviewing the sufficiency of the evidence
in the context of evaluating the jury’s rejection of a defendant’s claim of self-defense in
this case, Appellant would be justified in using deadly force against Officer Sessions (1)
if he would be justified in using force against Officer Sessions under section 9.31 and (2)
“when and to the degree” Appellant reasonably believed deadly force was immediately
necessary to protect himself against Officer Sessions’s use of unlawful deadly force.
Because Appellant has not shown Officer Sessions’s use of deadly force to be unlawful,
or even that he reasonably believed the use of deadly force was immediately necessary
to protect himself from what he perceived to be unlawful deadly force, he has failed to
meet his burden of proof. As a reviewing court, we may not re-evaluate the weight and
credibility of the evidence in the record and thereby substitute our judgment for that of the
original fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Precedent from the Court of Criminal Appeals has long held that in a claim of self-
defense, a defendant bears the burden to produce evidence supporting that defense,
while the State retains the burden of persuasion to disprove the issues raised. Braughton,
569 S.W.3d at 592; Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The
State’s burden is “not one that requires the production of evidence, rather it requires only
that the State prove its case beyond a reasonable doubt.” Braughton, 569 S.W.3d at 608
(citing Saxton v. State, 804 S.W.3d 910, 913 (Tex. Crim. App. 1991)). Accordingly, in
resolving a sufficiency of the evidence issue such as we have in this case, we do not look
3
to see whether the State refuted Appellant’s self-defense testimony; rather, we examine
the record to determine whether, 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 offense beyond a reasonable doubt and also would have found against Appellant on
the self-defense issue beyond a reasonable doubt. Braughton, 569 S.W.3d at 609;
Saxton, 804 S.W.2d at 914.
Under section 9.31(d) of the Texas Penal Code, Appellant would never have been
justified in using deadly force in response to Officer Sessions’s use of lawful deadly force.
Furthermore, Appellant has not shown that he reasonably believed his use of deadly force
was immediately necessary to protect himself from what he perceived to be unlawful
excessive force. Accordingly, I find the State carried its burden of presenting legally
sufficient evidence on which a reasonable jury could conclude, beyond a reasonable
doubt, that Appellant committed the aggravated assault for which he was charged and
that he was not acting in self-defense at the time he committed the acts constituting that
offense. As such, Appellant’s sole issue is overruled.
CONCLUSION
I also affirm the judgment of the trial court.
Patrick A. Pirtle
Justice
Do not publish.
4