Appellant, Juan J. Ruiz Jr., Jesus Cisneros Jr. and Eduardo Cisneros were convicted in a joint trial for the murder of Cesar Flores. Appellant was sentenced to 30 years' confinement and assessed a $10,000.00 fine. He has perfected this appeal. We reverse and remand.
Jesus Cisneros Jr. (04-87-00308-CR) and Eduardo Cisneros (04-87-00309-CR) have appealed under their respective cause numbers. An extensive joint opinion is released in those causes on this same date.
Appellant sets out eight points of error in his appeal but complies with TEX.R.APP.P. 74 only with regard to the first point of error. Apparently completely confident of succeeding with his initial point of error, appellant concedes that as to points of error two through eight, his brief is lacking and would probably require supplementation, which has not taken place. Appellant's brief in this respect is broad, general, global, and fails to sufficiently direct this Court to the record or authorities. However, because of our disposition of a similar complaint in the Cisneros causes, we will not require rebriefing, and will address his point of error number five.
Appellant, like the Cisneros, complains initially that he was denied a fair and impartial jury because Juror Mario Pola, a first cousin of State's witnesses Arturo and Rodrigo Escamilla, was selected as a juror without their knowledge of his blood-relationship to the witnesses.
The record reflects that during the voir dire, although the prospective jurors were advised that Arturo Escamilla was a State witness, Pola failed to disclose he knew him after the District Attorney asked if any juror knew any witness. During the motion for new trial hearing, although somewhat contradictory at times, Pola testified that he advised the trial judge he was a cousin of Escamilla before the jury was selected. However, the trial judge recalled he was advised by Pola of the possibility of a blood relationship only after the jury had been selected and before it was sworn. Regardless, this information regarding the relationship of Pola and the Escamillas was not revealed to counsel for either side by the trial judge. The trial proceeded with Pola as a member of the jury. Although an alternate juror was selected at the outset, she substituted for another excused juror several days into the trial, and before counsel for appellants had any knowledge of the relationship of Pola and the Escamillas. Appellant first became aware of the relationship between Pola and the Escamillas during the trial but made no motion for a mistrial or objected in any other manner. However, the record fails to indicate appellant knew Pola had communicated with the judge about the relationship until the hearing on the motion for a new trial.
The critical nature of the testimony of Arturo and Rodrigo Escamilla is readily apparent when considering the theories pursued by the State and the defense during the trial. The State contended that the deceased, who was in his truck, was first shot by Jesus Cisneros Jr. from the apartment balcony above. The appellant and the Cisneros asserted a self-defense theory contending Jesus Cisneros Jr. was fired at first by the deceased when on ground level, and only then responded with fire. The Escamilla brothers were the only State eye witnesses and they testified the firing commenced from the balcony. Thus, the credibility of the Escamilla brothers was crucial to establish the case for the State and to destroy the self-defense theory of the appellant and the Cisneros.
In Von January v. State, 576 S.W.2d 43 (Tex.Crim.App. 1978), the Court reversed the conviction when a prospective juror denied knowing the accused and it was later discovered he had known the accused for *Page 537 many years. In reversing, the Court stated:
. . . It was for defense counsel, and not the prospective juror, to decide whether Dunn's relationship to the Parkers made him unacceptable and subject to a peremptory challenge. Dunn's failure to truthfully answer the question propounded to him prevented defense counsel from making this determination. When a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, who has acted in good faith upon the answers given to him on voir dire not knowing them to be inaccurate, good ground exists for a new trial. Norwood v. State, supra, and cases cited therein.Von January v. State, 576 S.W.2d at 45; Norwoodv. State, 123 Tex.Crim. 134, 58 S.W.2d 100 (1933);Bolt v. State, 112 Tex.Crim. 267, 16 S.W.2d 235 (1929); Adams v. State, 92 Tex.Crim. 264,243 S.W. 474 (1921).
The State contends the appellant has waived any complaint because he failed to sufficiently pursue questioning of Pola during voir dire, and did not move for a mistrial upon discovering Pola's relationship with the Escamillas during the trial. The State further contends that the trial judge had no obligation to disclose to the appellant what he had been told by Pola.
It is not lack of diligence for an accused to believe what a prospective juror states. To require an accused to assume a prospective juror is untruthful and irritate the juror with accusing questions, would most certainly result in a prejudiced juror. In this case, Pola indicated he did not know Escamilla in answer to questions of the District Attorney, and appellant was entitled to rely on that answer.
Although there is contradiction as to what Pola actually related to the trial judge, the matter should have nevertheless been revealed to the parties in order that the parties could have decided what action, if any, they wished to take. "It was for defense counsel . . . to decide whether [Pola's] relationship to [the Escamillas] made him unacceptable and subject to a peremptory challenge." Von January v.State, 576 S.W.2d at 45.
At issue then is whether the appellant's failure to object in a form of a requested mistrial or otherwise upon discovering the alleged defect, amounted to a waiver or lack of diligence.
Rogers v. State, 640 S.W.2d 248, 264 (Tex.Crim.App. 1982) (on State's second motion for rehearing).'The purpose of an objection is to challenge the correctness of the action by the trial court to the end that such action may be corrected by the court itself, if deemed erroneous, and to lay the foundation for its review, if necessary, by the appropriate appellate tribunal; and the accused cannot remain silent, gambling on his chances for a favorable verdict, and then, when the verdict has gone against him, raise objections which he knew of and which could have been raised during trial.' 24 C.J.S., Criminal Law, Section 1670, at page 1063.
As a general rule, alleged errors on appeal will not be considered unless they have first been brought to the attention of the trial judge by proper objection at the time during the trial. Esquivel v. State, 595 S.W.2d 516 (Tex.Crim.App. 1980) (en banc), cert. denied,449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). This contemporaneous objection rule has been held to also apply to constitutional questions, Mendoza v. State, 552 S.W.2d 444 (Tex.Crim.App. 1977); to alleged violations under the Sixth and Fourteenth Amendments, Dunlap v. State, 477 S.W.2d 605 (Tex.Crim.App. 1971); to alleged violations under the Fourth Amendment, Darland v. State, 582 S.W.2d 452 (Tex.Crim.App. 1979); to alleged due process violations in the selection of the jury, Crawford v. State, 617 S.W.2d 925 (Tex.Crim.App. 1981) (en banc); and to alleged due process violations in the revocation of probation process. Rogersv. State, 640 S.W.2d at 265.
This record discloses that the appellant and the Cisneros became fully aware of the relationship between Pola and the Escamillas during the trial. However, the record *Page 538 is silent as to a request for a mistrial, objection, or any other requested relief. Therefore, we hold that the appellant's silence amounted to a waiver and lack of diligence. The complaint is overruled.
In point of error five, like the Cisneros, appellant contends the trial court erred in refusing his requested instruction to the jury that the Cisneros had the right to arm themselves. Without citing authorities, the State contends such an instruction is not supported by the evidence.
Young v. State, 530 S.W.2d 120, 122 (Tex.Crim.App. 1975).1 Banks v. State, 656 S.W.2d 446, 447 (Tex.Crim.App. 1983) (en banc); Gassett v. State, 587 S.W.2d 695, 697 (Tex.Crim.App. 1979); Williams v.State, 580 S.W.2d 361 (Tex.Crim.App. 1979); Martinezv. State, 653 S.W.2d 630, 637 (Tex.App. — San Antonio 1983, pet. ref'd). This rule is unchanged by the new Penal Code. Young v. State, 530 S.W.2d at 123. It is also unchanged by the fact that the accused may have requested the provocation charge. Banks v. State, 656 S.W.2d at 447.[I]t is equally well settled that if the court's instruction limits the accused's right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused's right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence.
The record here reflects the court limited the self-defense instruction with a charge on provoking the difficulty. The record also reflects that appellant and the Cisneros requested an instruction on the right of the Cisneros to arm themselves. The issue therefore is whether the evidence supported the right to arm instruction. If so, the instruction should have been given under these circumstances.
In Young v. State, supra, the court held the evidence supported and required a right to arm charge where the appellant testified that:
1) the deceased had previously threatened him while the deceased was in prison and later in the county jail;
2) a conversation on the day of the shooting with his brother placed him in fear of the deceased;
3) he armed himself and went to the home of the deceased to "try to get it straight"; and
4) he shot the deceased in the deceased's home, when the deceased assaulted him with a broom.
In Banks v. State, supra, the court held that the evidence supported and required a right to arm charge where the appellant testified that:
1) he and the deceased had been engaged in a feud for some time;
2) the deceased had constantly "bullied" and "picked on" him;
3) he was afraid the deceased "would have jumped on me and beat me up" if he had not armed himself when he went to ask the deceased to return his money; and
4) he shot the deceased in self-defense when the deceased turned towards him. *Page 539
In Williams v. State, supra, the court held that the evidence supported and required a right to arm charge where the appellant testified that:
1) he was chased from a tennis court by the complainant and a friend, both weighing over 235 lbs and armed with a tree limb and beer bottles;
2) he returned to retrieve his car armed with a shot gun; and
3) he fired twice when he saw the complainant crouched near appellant's car pointing what he thought was a gun.
In Gassett v. State, supra, the court held that the evidence supported and required a right to arm charge where the appellant testified that:
1) he and his wife, who had previously been married to the deceased, had taken the minor child of the marriage of the deceased and appellant's present wife out of state after a court had granted custody of the child to the deceased;
2) the purpose was to prevent the deceased from having custody of the child;
3) he returned home alone a week before the homicide;
4) the deceased frequently drove around the neighborhood of the appellant in an effort to find his child;
5) he feared the deceased because of the custody matter, and his knowledge of the violence of the deceased, who carried a gun in his car;
6) he saw the deceased and his new wife driving towards appellant's home;
7) he curbed deceased's car with his pick-up;
8) with a pistol in hand he approached deceased's car seeking an explanation for deceased's continuous surveillance of appellant's home; and
9) shot the deceased when the deceased, with a gun in his hand, got out of the car and started to move his hand forward.
In Martinez v. State, supra, this Court held that the evidence supported and required a right to arm charge when the appellant testified that:
1) he and his brother discovered where their property had been taken to after a burglary of their home;
2) he and his brother went and purchased a shotgun to go and retrieve their property;
3) he felt obligated to arm himself because several hand guns and a rifle had been taken from their home;
4) he and his brother went to the deceased's home armed with the shotgun, and found the stolen property;
5) a struggle ensued between him and the deceased when he saw the deceased had a handgun; and
6) during the struggle, appellant recovered deceased's gun and shot him twice in the back of the head because he thought the deceased was reaching for another weapon.
In the cause before us, Jesus Cisneros Jr. testified that:
1) there was hatred between the Cisneros family and the deceased for a long time because of the relationship between his sister, Maria Elena Cisneros, and the deceased;
2) he did not intend to kill the deceased but wanted to confront and beat up the deceased because he feared the deceased would provoke a fight with his father, Jesus Cisneros Sr.;
3) he armed himself because he knew the deceased was violent and always carried a weapon;
4) with the rifle pointing away from the deceased, he alone approached the deceased, who was in his truck, and asked him to come out;
5) when the deceased started out of the truck, the deceased fired first, and in self-defense, he returned the fire;
6) no one else fired at the truck;
7) at the time of the shooting, his brother-in-law co-defendant Juan Ruiz was in his Blazer some distance away, and his brother Eduardo was in the vicinity but did not participate; and
8) he later heard the deceased had died. *Page 540
Appellant Juan Ruiz Jr., co-defendant and brother-in-law of the Cisneros, testified that:
1) the statements taken from him were not voluntary and untrue;
2) he was now telling the truth during the trial;
3) he was told by his sister-in-law, Maria Elena Cisneros, that the deceased was a violent and dangerous man, had tried to kill her, and habitually carried a gun;
4) he once saw the deceased with a gun at a friend's house;
5) he communicated all this to the Cisneros prior to the shooting;
6) the Cisneros did not intend to kill the deceased, but wanted to "settle this once and for all" in a fight because the deceased "was messing with their dad" and they were afraid the deceased would hurt their dad;
7) the weapon was carried only for protection because of the deceased's violent and dangerous reputation; and
8) he did not witness the shooting or participate in it.
Maria Elena Cisneros testified that:
1) she first met the deceased when she was 15 when all the Cisneros family worked for the deceased;
2) she later had two children out of wedlock whose biological father was the deceased;
3) friction resulted between her entire family and the deceased as a result of her relationship with the deceased;
4) the deceased was a violent man; and
5) she told Juan Ruiz that the deceased approached her with his gun and got her out of her job, that he would wreck her car whenever he saw her, and that he struck her.
The dissent contends the facts clearly show that the appellants "waylaid the deceased and killed him." Under these circumstances, it reasonably must be concluded that the trial judge instructed on self-defense without justification. With all due respect, it is suggested that in reaching this conclusion, it is necessary to either disregard or disbelieve the evidence presented which indicated any possible justification for the Cisneros to arm themselves.
Williams v. State, 580 S.W.2d at 363.Although the State's witnesses contradicted appellant's version of what happened, the issue of whether the charge [right to arm] should have been given depends on what testimony was presented, not what is or is not believed as to the truth of that testimony. . . . His requested charge [right to arm] was sufficient to inform the trial court of the need for such a charge, and denial of such a charge constituted reversible error. (emphasis added)
Thompson v. State, 521 S.W.2d 621, 624 (Tex.Crim.App. 1974).It is also well recognized that a defendant is entitled to an instruction on every issue raised by the evidence, whether produced by the State or the defendant, and whether it be strong, weak, unimpeached, or contradicted.
As in Gassett and Banks, we do not hold that the jury was required to accept the version of the facts set out by the defense. Nor, as suggested by the dissent, do we hold that the defendant is always guaranteed a jury charge on "right to arm" oneself when a charge on provoking the difficulty is given. We merely hold that the evidence introduced was sufficient to require the requested additional instruction to ameliorate the limitations imposed upon the right of self-defense by the charge on provoking the difficulty.
We cannot say that this error beyond a reasonable doubt made no contribution to the conviction or to the punishment. TEX.R.APP.P. 81(b)(2).
The judgment is reversed, and the cause is remanded to the trial court for a new trial.
In 4 Branch's Ann.P.C., 2d ed., Sec. 2126, p. 451, it is stated:
"The settled law now is that, unless the court has abridged the defendant's right or claim of self-defense by giving a charge on 'provoking the difficulty,' it is not necessary in any case for the court to charge on the defendant's right to arm himself or to charge on his right to seek a discussion with or an explanation from the deceased about any matter, provided a full charge on self-defense is given. But if the court has charged on provoking the difficulty, then it is imperative and necessary under the decisions that the court give a charge on the defendant's right to arm himself and seek such explanation. Dunne v. State, 102 [Tex.] Crim. [R.] 435, 278 S.W. 201; Harris v. State, 116 [Tex.]Crim. [R.] 426, 32 S.W.2d 459; Porter v. State, 152 [Tex.]Crim. [R.] 540, 215 S.W.2d 889."
In 29 Tex.Jur.2d, Homicide, Sec. 332, p. 647, it is also pointed out that:
"An instruction on the right to arm is, ordinarily, called for where the issue of provocation is left to the jury. In such a situation, the jurors should be advised that the defendant's right of self-defense would not necessarily be abridged by the fact that he was armed."