ACCEPTED
13-15-00145-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/14/2015 11:58:52 PM
Dorian E. Ramirez
CLERK
No. 13-15-00145-CR
IN THE FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
THIRTEENTH COURT OF APPEALS12/14/2015
DISTRICT 11:58:52 PM
DORIAN E. RAMIREZ
Clerk
OF TEXAS
CORPUS CHRISTI, TEXAS
JESUS RIVERA
Appellant
v.
STATE OF TEXAS,
Appellee
TRIAL CAUSE NO. 2013-CR-1573
APPEAL FROM 144TH DISTRICT COURT
BEXAR COUNTY, TEXAS
HONORABLE LORINA RUMMEL, JUDGE PRESIDING
APPELLANT’S BRIEF
ORAL ARGUMENT REQUESTED
ANGELA J. MOORE
310 S. St. Mary’s, suite 1830
San Antonio, Texas 78205
210-227-4450 office
210-364-0013 cell
Amoorelaw2014@gmail com
SBN 14320110
ATTORNEY FOR APPELLANT
Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.1(a) (2005), the parties to this suit
are as follows:
(1) JESUS RIVERA, TDCJ #01986518, Telford Unit, 3899 Hwy
98, New Boston, Texas 75570, is the Appellant and was the defendant
in the trial court.
(2) The STATE OF TEXAS, by and through the Bexar County
District Attorney’s Office, Paul Elizondo Tower, 101 W. Nueva ST., 4th
floor, San Antonio, Texas 78205, is the Appellee and prosecuted this
case in the trial court.
The trial attorneys were as follows:
(1) APPELLANT was represented by JOE STENBERG, sbn#
19142800, 722 E. Euclid Ave., San Antonio, Texas 78212.
(2) The State of Texas was represented by SUSAN D. REED, District
Attorney, and Christopher Karl, sbn# 24070035 Assistant District
Attorney, Paul Elizondo Tower, 101 W. Nueva ST., 4th floor, San
Antonio, Texas 78205. The appellate attorneys are as follows:
ii
(1) Jesus Rivera is represented by ANGELA J. MOORE, SBN
#14320110, Tower Life Building, 310 S. St. Mary’s Street, Suite 1830,
San Antonio, Texas 78205.
(2) SUSAN D. REED, District Attorney, and the District Attorney’s
Office, Appellate Division, San Antonio, Texas 78205, represent the
State of Texas.
The trial judge was Hon. Lorina Rummel, 144th District Court, 300
Dolorosa St., 3rd Floor, San Antonio, Texas 78205.
iii
Table of Contents
Identity of Parties and Counsel................................................................. ii
Table of Contents .......................................................................................iv
Table of Authorities .................................................................................... v
I. STATEMENT OF THE CASE ...............................................................1
II. STATEMENT REGARDING ORAL ARGUMENT ..............................2
III. SOLE ISSUE PRESENTED ...............................................................3
The evidence was legally insufficient that Appellant committed
murder, since the State did not refute beyond a reasonable doubt,
Appellant’s evidence of self-defense, thus requiring that his conviction
be reversed and that the court render a judgment of acquittal. ...........3
IV. STATEMENT OF FACTS ....................................................................3
V. SUMMARY OF THE ARGUMENTS...................................................17
VI. ARGUMENT AND AUTHORITIES ..................................................18
APPELLANT’S SOLE ISSUE: ..............................................................18
Conclusion and Prayer ..............................................................................32
Certificate of Service .................................................................................34
iv
Table of Authorities
Cases
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) ..................18
Brundy v. State, 280 S. W.3d 425, 433 (Tex.App.-Fort Worth 2009, pet
ref'd) .......................................................................................................19
Davis v. State, 104.W.3d 177, 181 (Tex.App.-Waco 2003, no pet.) .........30
Davis v. United States, 160 U.S. 469 (1895) ............................................31
Ferrel v. State, 16 S.W.3d 861, 865 (Tex.App.-Houston [14th Dist] 2000),
rev'd on other grounds, 55 S.W.3d 586 (Tex.Crim.App. 2001) ............29
Hernandez v. State, 309 S. W.3d 661,665 (Tex.App.-Houston [14th Dist]
2010, pet ref'd) .......................................................................................20
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) ....................18
Meraz v. State, 785 S.W.2d 146, 154-155 (Tex. Crim.App. 1990) ...........19
Miller v. State, 177S.W.3d 177, 183 (Tex.App.-Houston [1st Dist] 2005,
pet ref'd) .................................................................................................29
Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet ref'd) .19
Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991) ............20, 30
Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App. 2009) ......20, 21
Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) ...........20, 21
Zuliani v. State, 97 S.W.3d 589, 593-594 (Tex. rim.App. 2003) .19, 20, 30
v
Statutes
TEX. CODE CRIM. PROC § 26.04 .............................................................1
TEX. PEN. CODE §19.02 (b)(1) ..................................................................1
TEX. PEN. CODE 19.02(b)(2).....................................................................1
TEX. PENAL CODE § 1.07(42) ................................................................30
TEX. PENAL CODE § 1.07(a)(42) ............................................................31
TEX. PENAL CODE § 9.01(3) ..................................................................31
TEX. PENAL CODE § 9.31.......................................................................28
TEX. PENAL CODE § 9.32, 9.33..............................................................31
TEX. PENAL CODE § 9.32(a) ..................................................................29
TEX. PENAL CODE, § 9.32......................................................................30
Other Authorities
https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/synthetic-drugs-
k2-spice-bath-salts.................................................................................22
vi
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Jesus Rivera, Appellant, by and through his
attorney of record, Angela J. Moore, and pursuant to the provisions of
TEX. APP. P. 38, et seq., files this brief on appeal. This is an appeal
from a conviction for Murder.
I. STATEMENT OF THE CASE
Jesus Rivera will be referred to as “Appellant” or “Rivera” and by
male pronouns. The State of Texas will be referred to as the “State.” On
February 20, 2013, by a two-count Indictment, Rivera was charged
with: Count I – Murder of Ryan Yearley by shooting him with a deadly
weapon that is, a firearm. TEX. PEN. CODE §19.02 (b)(1) - 1st Degree
Felony; Count II -Murder, with intent to cause serious bodily injury to
Ryan Yearley did commit an act clearly dangerous to human life that
caused the death of Ryan Yearly by shooting the complainant with a
deadly weapon, namely, a firearm. TEX. PEN. CODE 19.02(b)(2) – 1st
degree felony. (1 CR 6). A timely notice of appeal was filed on March 5,
2015, and pursuant to TEX. CODE CRIM. PROC § 26.04, Attorney
Angela J. Moore was appointed as part of the public defender office. (CR
1
1: 145).1 Appellant filed a motion to suppress. (CR: 20-22). The Motion
was granted. (8 RR 3).
At trial, on February 10, 2015, Appellant pleaded not guilty. (4 RR
40). After hearing the evidence, the jury found Appellant guilty as
alleged in Count I of the indictment of Murder. (CR: 143; 13 RR 136).
The jury assessed punishment at 66 years’ incarceration in the Texas
Department of Corrections, Institutional Division. (CR: 143; 13 RR 138).
On March 5, 2015, defense counsel filed a timely notice of appeal for
Appellant. (CR: 145). This brief follows.
II. STATEMENT REGARDING ORAL ARGUMENT
Defendant requests oral argument because it would assist the
court in the decisional process because its decision requires the
application of law to the facts of the case.
1
The public defender ran out of funding for this part time position, and in the
interest of due process for the accused, Ms. Moore was continued on the case as
court appointed counsel.
2
III. SOLE ISSUE PRESENTED
The evidence was legally insufficient that Appellant
committed murder, since the State did not refute beyond a
reasonable doubt, Appellant’s evidence of self-defense, thus
requiring that his conviction be reversed and that the court
render a judgment of acquittal.
IV. STATEMENT OF FACTS
A. STATEMENT OF FACTS
In August of 2012, Jesus Rivera, Maria Rivera, Ryan Yearling,
and Jeffrey Yearling moved into 2026 Delgado St. in San Antonio,
Texas. Jesus would live in the “back house”, and Maria, Ryan and
Jeffrey would occupy the main house on the lot. The house was owned
by Jesus’ and Maria’s father (9 RR 31). At that point, Ryan and Maria
had been living together since 2010, first in their own apartment, and
then with Maria’s aunt Diana (4 RR 121).
Even before moving into the Delgado house, Ryan and Maria’s
relationship was marred by domestic violence, drug abuse, criminal
charges, eviction, and a failed pregnancy. After moving into the Delgado
house, a culture of drug use was quickly established. Jesus, Ryan, their
friends and neighbors would regularly smoke “Klimax”, a popular brand
of synthetic marijuana (4 RR 149), and testimony indicates they were
3
also indulging in cocaine, methamphetamine, marijuana, heroine, and
alcohol. (4 RR 149-151).
In the early hours of November 22, 2012, Thanksgiving day, Ryan
Yearling was killed by a shotgun blast to the chest, a shooting to which
Jesus Rivera admitted, but asserts was committed in self defense as a
drug addled, knife wielding Ryan attacked him first. Both Maria
Rivera and Jose Torres claim that they were conscripted to help Jesus
move the body from the living room of the main house to the bathtub of
the back house, where police discovered it several hours later after a
warrantless entry. A toxicology report – the contents of which were
communicated to the jury by expert witness Dr. Kimberly Molina,
Deputy Chief Medical Examiner with the Bexar County Medical
Examiner’s Office – showed that two different types of synthetic
cannabinoids were present in the deceased. (6 RR 152).
Marilyn Yearley-Perez is a nurse and the mother of the deceased.
The morning after the shooting- and before she had any reason to know
something was wrong - she called to speak with Ryan, and Maria told
her that he was not there. (4 RR 76). After Marilyn pried as to Ryan’s
whereabouts, Maria told her that he had left the night before at around
4
10:00. (4 RR 76, 77). Marilyn testified that this did not sound right to
her, and she went over to the house to pick up Maria as originally
planned. ( 4 RR 77). After greeting the baby, she saw Jesus sitting on
the couch watching television (4 RR 78). She testified that she asked
Jesus where Ryan was and Jesus told her that he didn’t see him leave.
(Id.) After searching the house for Ryan, she eventually gave up and
took Maria and Jeffrey to her mother-in-law’s house for two-and-a-half
hours. (4 RR 81). She then took Maria and Jeffrey back to the Delgado
house and found Jesus and Mr. (Roberto) Rivera watching TV. (4 RR
82). Marilyn testified that the situation at the house was “all quiet and
nice.” (Id.) Marilyn asked Roberto (father of Jesus and Maria) if he
knew where Ryan was, and Roberto said he thought he was with
Marilyn, Jesus and Maria. (4 RR 82). Marilyn testified that Maria told
the same story about Ryan leaving the house abruptly the night before.
(4 RR 82, 83). At that point it was nearly 3:00 and she was getting
concerned. (4 RR 83). Marilyn testified that she called the jail to see if
Ryan had been arrested, but that it didn’t occur to her to call any
hospitals. (4 RR 84). She testified that she found this ironic because she
5
was a nurse. (Id). She then left to check on her husband, intending to
return to the Delgado house to file a missing persons report. (Id.)
When she returned, she pulled up to the house at the same time
as the police. (4 RR 85). Marilyn testified that she and the officers
approached Maria at the same time, and that Maria was looking at the
officer but would not look at her. (4 RR 86). She heard Maria
communicate Ryan’s death to the officer. Robert Rivera told her that
the body was in the garage apartment. (4 RR 88). Marilyn testified that
her reaction was one of disbelief, and that she was rendered numb, and
while she was waiting for her husband to arrive, she noticed a crowd of
San Antonio Police Officers had gathered by the driveway with their
guns drawn. (4 RR 89). Marilyn watched an officer kick the door of the
back house in, and radio that he had found a body. (4 RR 88). The
officers then advanced to the main house and entered it as well. (Id.)
Marilyn testified that she got no answers from Maria, and did not see
Jesus again (4 RR 89). During cross-examination, Marilyn testified
that the windows of the garage apartment were spray painted black and
one could not see inside. (4 RR 98). Marilyn testified that when she was
first in the main house that day and noticed a piece of carpet missing,
6
Maria told her that she had to cut a piece out because she could not
remove a chocolate milk stain. (4 RR 101).
Marilyn testified that Ryan had mentioned buying a new knife
recently that he was excited about. (4 RR 103). She testified she was
aware that Maria wanted to break up with Ryan, but that Ryan
expressed interest in making things work. (Id.) She testified that she
saw Maria everyday, but that she had not spoken with Jesus at all. (4
RR 105).
Maria Rivera testified that the house had been broken into during
the month of November while she was home alone with the baby. The
break-in made Maria feel unsafe, and she testified that Ryan tried to
buy a gun – he went as far as paying a deposit for a firearm at a
pawnshop before being denied the weapon because he was on probation
–to defend the home from intruders (8 RR 73, 74). Ryan’s mother –
Marilyn Yearley-Perez - also recalled Ryan telling her he wanted a
handgun. (4 RR 147). Roberto Rivera, the father of Jesus and Maria,
testified that, on November 21, 2012, mere days after Ryan’s failed
background check disallowed him from purchasing a gun, he (Jesus)
wanted to buy a gun himself. (9 RR 76, 77). Roberto was aware that
7
Maria, Ryan and Jesus were concerned about a recent burglary at the
house that Maria (“Lupita”) reported to the police. (9 RR 82). Roberto
testified that “[he] understood them wanting to get a gun.” (9 RR 82).
Roberto testified that if they were going to buy a gun, he wanted them
to buy the gun legally, and suggested Academy Sporting Goods. (9 RR
79). Christopher Garza, an Academy employee who showed Jesus the
guns testified that, when asked why he wanted a gun, Jesus replied,
“home defense.” (9 RR 8). Jesus was shown (and would ultimately buy)
the gun that Garza referred to as Academy’s “cheapest gun for home
defense.” (9 RR 8). Jose “Frijol” Torres, a friend of both Jesus and Ryan,
testified that Jesus bought the shotgun “only for safety.” (7 RR 18).
Jesus himself testified that the gun was purchased for “protection in the
house.” (9 RR 135). Because Ryan was unable to buy the handgun from
the pawnshop, Jesus testified that he felt obligated to purchase a
firearm. (Id.)
Officer Nick Cucinotta of the San Antonio Police Department was
the first officer on the scene. He received a dispatch at 3:00 pm on
November 22, 2012, for a disturbance or a missing person. (4 RR 161).
At the time of his arrival, he thought he was responding to a missing
8
person report. (4 RR 163, 164). Officer Cucinotta told the jury that
when he first spoke with Marilyn, she explained that she wasn’t
initially worried because she thought Ryan had gotten drunk and
passed out somewhere. (4 RR 167). Officer Cucinotta stated that Maria
began sobbing and told him that Ryan was dead. Maria told Officer
Cucinotta that her brother shot Ryan and that her brother, Jesus, was
still in the house, and that she was worried because her baby was in the
house as well with Jesus. (4 RR 169, 172). Officer Cucinotta testified
that Maria told him the body was in the garage apartment. (Id.) Officer
Cuinotta testified that it was unclear if Jesus was armed at the time.
(Id.) He and other officers went into the main house and only found the
baby (4 RR 172).
Cucinotta and Officer Jesse Avalos kicked in the door of the back
house (garage apartment) and made entry. (4 RR 174). Officer
Cucinotta testified that they found a body with a pale white foot
sticking out of the tub, and the rest of the body was covered by a gutted
mattress. (4 RR 175). As soon as he saw the body in the bathroom,
Officer Cucinotta approached it and touched one of the feet. He testified
9
that the foot was cold, and made him realize the body was lifeless. (4
RR 177).
Officer Cucinotta claimed he only did a “quick search” and once he
found the body, he did not move the mattress cover off the body. (4 RR
180.) He claimed he did not locate any weapons in the back house. (Id.)
Officer Cucinotta testified that he and the other officer backed out as
that point. He was not the main reporting officer and that he just
happened to be the first one there. (4 RR 180, 181).
After being shown a “consent to search” form with his signature,
SX 22, Detective Cucinotta was asked why he would obtain such a
document. He responded: “Normally we will do that to get access to the
home, get better access. I guess after we did the consent, then we
probably went in afterward. Once you get consent, it’s almost like a –
without getting a warrant. As long as we get somebody’s consent to go
in, you don’t need the warrant.” (4 RR 179). It appears the consent was
obtained after the body was determined to be lifeless. (4 RR 180).
Officer Ruben Moncivaiz, Jr. of the San Antonio Police
Department is an officer in the Problem Oriented Policing Unit, a
“specialized unit…in troubled areas of the city [which] deals with
10
gangbangers, drugs, all the high crime rates that you see on TV.” (4 RR
184). Officer Moncivaiz testified that after Maria told him that Ryan
was in the back, he “didn’t know if – if the individual needed medical
attention or anything. So, due to “exigent circumstances,” Officer
Cucinotta kicked in the door. (4 RR 188). After they realized that the
body was lifeless, according to Officer Moncivaiz testimony, they
regrouped outside and decided that because Jesus could be in the main
house with a child, they needed to go in there as well. (4 RR 189).
Officer Moncivaiz testified that they found Jeffrey, the baby, in a car
seat on top of a bed, but did not find Jesus. (4 RR 192).
Officer Moncivaiz testified that Maria “came up with the idea” of
rolling the body up in discarded carpet (4 RR 195), but that she had
done so because she was scared of Jesus (Id.) Jose Frijol Torres had
helped her move the body to the back house.(4 RR196). The main house
was cleared, and he returned to the entry of the back house and kept
track of the officers that entered. (4 RR 192). Moncivaiz ran Jose
“Frijol” Torres, and went looking for him, and found Jose, on November
24, 2012. Jose Torres gave the officer his name which matched the
accomplice in the murder. (4 RR 198).
11
Attorney Cathy Compton puts on the record that her client, Jose
“Frijol” Torres had signed an agreement with the State granting
immunity, and that agreement is marked as State’s exhibit 93. (7 RR 3).
Ms. Compton stated that she drafted the immunity agreement and that
she went over it with her client in both English and Spanish. (Id.)2
Jose “Frijol” Torres was a dishwasher who lives with his mother in
Castroville, Texas. (7 RR 8). Jose testified that he has information
about what happened on Thanksgiving of 2012, and that he spoke with
police after the incident. (7 RR 8,9). Jose acknowledged that he reached
an agreement with the State. (7 RR 10). Jose acknowledged that the
nature of the agreement was that if he testified “truthfully and fully”
the State would not prosecute him. Jose explained that he was a friend
of Jesus Rivera, that he had known him for about four years, and that
he also knew Maria Rivera and knew Ryan Yearley. (7 RR 12). Jose
testified that he lived in the back house with Jesus for about four
months. (7 RR 13). Jose and Jesus “worked and smoked” together. (7
RR 15). Jose testified that he was at the Delgado house on the night
before Thanksgiving, 2012. (7 RR 16, 17). Jose was at the house with
2
Inexplicably, defense counsel did not raise or discuss an accomplice witness
charge.
12
Ryan and Maria while Jesus was at Academy with Roberto Rivera
buying the gun. Jose testified that Jesus bought the gun, “only for
safety” (7 RR 18), particularly from gang members that assaulted him.
Jose did not like the fact that there was a gun in the house. Jose
explained that even though he was nervous, he didn’t think that
anything bad was going to happen that very night. (7 RR 26). When he
left, everything was calm. (7 RR 26). Jose testified that Jesus called at
around 7:00 or 7:30 on Thanksgiving morning, letting him know
something bad had happened. (7 RR 22). Jose returned to the Delgado
house at 8:30 or 9:00 on Thanksgiving morning (7 RR 28). Jose testified
that Jesus was sitting on the couch with the shotgun and told him to go
look in the bathroom, and when Jose did, he saw Ryan’s dead body. (7
RR 29-30). Jose stated that he asked Jesus what was going to happen
with the body, and that Jesus said no one has to know and that they
needed to bury the body. (7 RR 31).
Jose testified that it was his decision to bury the body (though
they never actually did), because they had always been friends and
were there for each other. He also told the jury that he helped because
he was afraid. (7 RR 32). While Jose and Jesus were having this
13
exchange, Maria was in her room with the baby, crying. (7 RR 34). Jose
testified that they put Ryan in the hollowed out mattress and carried
him to the back house, and put him in the tub. (7 RR 34). Jose testified
that that Jesus said he would make him disappear, and that he said the
same to Maria (7 RR 35). After putting the deceased in the bathtub,
they went back to the house, smoked and played games. (7 RR 35). Jose
testified that Jesus never told him that Ryan had come at him with a
knife. Jose stated that Ryan would always bother Jesus. (7 RR 36).
During cross-examination, Jose testified about an incident during which
Jesus cut Jose’s hand with a knife, stating the cutting was accidental. (7
RR 43). Jesus took him to the hospital, and apologized profusely
immediately after it happened. Jose testified that Ryan took 4 or 5
Xanax while Jesus was at Academy Sporting Goods with his father
Roberto. (7 RR 44, 45). According to Jose, Ryan had also snorted heroin
that evening. (Id.) Jose and Ryan were on the patio smoking a blunt
when Jesus arrived. (7 RR 46). While Jose was at the house, Ryan and
Jesus were getting along fine. (7 RR 47). Jesus left with his father and
they were gone for a while. When he returned he was carrying the box
with the new shotgun inside. (7 RR 49). Jose testified that by the time
14
Jesus got back with the new shotgun, Ryan was “all drugged up.” (7 RR
50). It was at that time that Ryan called Jose “Nigger,” and told him to
leave. (Id.) Jose testified that Ryan was belligerent and looking for a
fight, but Jose didn’t want to have anything to do with it. Ryan was the
type that who thought he could beat up anyone, because Ryan was a big
guy. (7 RR 51). Jesus Rivera, Appellant, was only five foot one and
weighed 110 pounds. (4 RR 57). Jose admitted that he took the path of
least resistance with the police by giving them the answers they were
looking for. (7 RR 52). This was why Jose initially told the police that
Jesus come up with the idea of burying Ryan, but he was just trying to
appease the officers. (7 RR 52). Jesus required Jose’s assistance in
carrying the rolled up carpet, because Jesus could barely lift his end. (4
RR 57).
Officer Scott Marshal, San Antonio Police Department, testified
that upon entry into the back house, he observed both a foot sticking
out of the tub, and a gun sticking out from under a blanket. (4 RR 211).
Officer Marshal testified that he contacted the Medical Examiner’s
Office. He added that “It appears that [the gun] could have been trying
15
to be hidden from (sic)….” before being objected to on the basis that it
required speculation. (4 RR 214).
Officer Arturo Rodriguez of the SAPD Gang Unit testified that he
and his partner were dispatched to 814 Calaveras. They arrived at a
Thanksgiving celebration with Barbeque and beer. Jesus Rivera
emerged from the crowd with his hands up. (4 RR 237). Jesus Rivera
was cooperative during the arrest and told the officers where he left the
shotgun (4 RR 238).
Crime Scene Investigator Scott Coonradt testified that once a
warrant was obtained, they went to the Delgado House to collect
evidence. (5 RR 87). Investigator Coonradt identified State’s exhibit 35,
which is swab of what appeared to be blood. It was marked by him as
E1 and was taken from the bathroom floor next to the bathtub (5 RR
93-94). Investigator Coonradt stated that all evidence “on or around”
the body gets collected as evidence, but if it is in the body, it must be
retrieved by the Medical Examiner’s Office. Indeed, the photos
presented by the officer depict a person from the Medical Examiner’s
officer inspecting the body. (5 RR 105, et. seq.).
16
Catherine Haskins-Miller is a forensic scientist in the Serology
and DNA section of the Bexar County Criminal Investigation
Laboratory. Haskins-Miller testified that her job is to take in physical
evidence and examine it for the presence of biological fluids, such as
blood, semen or saliva. (6 RR 113). If she is able to identify a stain, it
can be retained and a DNA analysis can be performed. (6 RR 113).
Haskins-Miller testified that there was not enough human DNA on
Ryan’s knife to create a genetic profile. (6 RR 118).
V. SUMMARY OF THE ARGUMENTS
The greater weight and preponderance of the credible evidence
herein shows that [Rivera] acted in self-defense from the apparent
danger created by the attack of Ryan Yearley, so that it is manifestly
unjust that he was convicted of manslaughter. The unfortunate death of
Ryan arose from an attack upon Jesus Rivera by his dear friend, his
brother by friendship, due to the assailant’s apparent threat of stabbing
Rivera, not from any act that the law justified Rivera in using to protect
himself. The jury's verdict to the contrary is, therefore, against the
great weight of the evidence. Jesus Rivera was entitled to a verdict of
not guilty as his acts were clearly in the defense of himself.
17
Consequently, the jury's rejection of Appellant’s justification of self-
defense and the jury's subsequent verdict was not rational. Accordingly,
this Court should, as it must, enter an order reversing the judgment
entered in the court below and thereafter enter a judgment of acquittal.
VI. ARGUMENT AND AUTHORITIES
APPELLANT’S SOLE ISSUE:
The evidence was legally insufficient that Appellant committed
murder, since the State did not refute beyond a reasonable
doubt, Appellant’s evidence of self-defense, thus requiring that
his conviction be reversed and that the court render a judgment
of acquittal.
A. Standard of Review:
In reviewing the legal sufficiency of evidence, all the evidence in
the light most favorable to the jury's verdict to determine whether any
rational jury could have found the essential elements of the offense
charged beyond a reasonable doubt. Brooks v. State 323 S.W.3d 893, 912
(Tex.Crim.App. 2010). Legal sufficiency review focuses on the quality of
the evidence presented. Brooks, 323 S.W.3d at 917-918 (Cochran, J.,
concurring). Legal 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).
18
Because self-defense is classified as a defense rather than an
affirmative defense, a factual sufficiency review is used generally to
review an appellate factual sufficiency challenge to the jury's implicit
finding against a self defense claim. Brundy v. State, 280 S. W.3d 425,
433 (Tex.App.-Fort Worth 2009, pet ref'd). When a criminal defendant
seeks review of a jury's failure to make a finding on which he has a
burden of proof, the appellate Court's factual review jurisdiction is
invoked. Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet
ref'd), citing Meraz v. State, 785 S.W.2d 146, 154-155 (Tex. Crim.App.
1990). In that instance, the reviewing court reviews all of the evidence
in a neutral light and asks whether the State's evidence taken alone is
too weak to support the finding and whether the proof of guilt, although
adequate if taken alone, is greatly outweighed by contrary proof.
Zuliani v. State, 97 S.W.3d 589, 593-594 (Tex. rim.App. 2003).
Therefore, an appellate court may sustain a defendant's factual-
sufficiency claim only if, after setting out the relevant evidence and
explaining precisely how the contrary evidence greatly outweighs the
evidence supporting the verdict, the court clearly states why the verdict
19
is so much against the great weight of the evidence as to be manifestly
unjust, conscience-shocking, or clearly biased.
When a defendant asserts a claim of self-defense, the State has
the ultimate burden of persuasion. Zuliani v. State, 97 S.W.3d 589, 595
(Tex.Crim.App. 2003). When reviewing the sufficiency of the evidence
concerning the jury's rejection of self-defense, the reviewing court looks
to whether any rational jury could have found against the defendant on
the self-defense issue beyond a reasonable doubt. Saxton v. State, 804
S.W.2d 910k, 914 (Tex.Crim.App. 1991); Hernandez v. State, 309 S.
W.3d 661,665 (Tex.App.-Houston [14th Dist] 2010, pet ref'd).
All the evidence is viewed in a neutral light, favoring neither
party, when reviewing the factual sufficiency of the evidence to support
a conviction. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App.
2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). The
reviewing Court then asks whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the
fact finder's determination is clearly wrong and manifestly unjust or
whether conflicting evidence so greatly outweighs the evidence
supporting the conviction that the fact finder's determination is
20
manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at
414-415, 417. Reversal is warranted where some objective basis in the
record supports a determination that the great weight and
preponderance of all the evidence, although legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
B. Facts supporting self defense
While Jesus and Ryan were close friends, a bond testified to by
Marilyn Yearly (4 RR 123), and Maria Rivera (7 RR 103). Maria Rivera
testified that, by November of that year, her relationship with Ryan had
deteriorated to the point that a separation seemed inevitable, and they
drafted a written agreement intended to govern custody of Jeffrey once
Ryan moved out. Maria testified that Ryan’s drug habit and proclivity
toward erratic - and often violent - behavior while on drugs precipitated
the pending separation. (7 RR 148; 8 RR 16-25).
Maria testified that Ryan had physically abused her (8 RR 16)
flipped over furniture (8 RR 29), and punched holes in the wall of their
old apartment (8 RR 117). Others also testified that Ryan had a
tendency to become violent and aggressive when on drugs. Hector
“Guero” Hernandez, their neighbor across the street, testified that Ryan
21
would get aggressive, had been aggressive with him, personally, and
“thought he was invincible.” (8 RR 125). Hector said that Ryan tried to
force him to fight, and that he, Hector, walked away from the fight; (8
RR 125). Jose “Frijol” Torres testified that on the night Jesus purchased
the shotgun at Academy, he, Ryan, and Jesus were smoking Klimax3
and drinking beer on the back patio when Ryan called Jose a “Nigger”
and told him to leave. (7 RR 50). Jose explained that Ryan always
wanted to fight without provocation, and answered affirmatively when
asked if Ryan was the kind of person “who thinks he can beat everyone
up.” (7 RR 51). Witnesses testify that Ryan smoked Klimax, drank beer,
snorted cocaine, and popped Xanax the night Jesus purchased the
shotgun (8 RR 118-119). In the early hours of the following morning,
Ryan Yearling died of a shotgun wound to the chest. At trial, Jesus
3
There are numerous references to “Klimax” in the record. It is understood from
the record that Klimax is synthetic marijuana. Synthetic cannabinoids commonly
known as synthetic marijuana, K2, spice are often sold in legal retail outlets as
herbal incense or potpourri and synthetic cathinones are often sold as bath salts or
jewelry cleaner. They are labeled not for human consumption to mask their
intended purpose and avoid food and Drug Administration (FDA) regulatory
oversight. Synthetic cathinones are man made chemicals related to amphetamines.
Synthetic cathinone products often consist of methylenedioxypyrovalerone (MVPD),
mephedrone, and methlone. See https://www.whitehouse.gov/ondcp/ondcp-fact-
sheets/synthetic-drugs-k2-spice-bath-salts last accessed December 14, 2015.
22
Rivera admitted to shooting Ryan, but claimed he was attacked by
Ryan, who was wielding a knife. (10 RR 51).
Maria Rivera was the girlfriend of Ryan Yearling, deceased, and
the mother of his infant son, Jeffrey. At trial, she testified that she hid
Ryan’s favorite knife after the shooting because, if Ryan’s mother were
to see it in the house, she would not believe their story that Ryan had
left unexpectedly. (8 RR 8). Maria says that she gave a statement to the
police after Ryan’s death. (Id.) During direct examination, Maria
testified that Jesus told her before the shooting that he planned to kill
Ryan. (7 RR During cross-examination defense counsel asks Maria
whether, in her statement to the police, she claimed that Jesus never
communicated such a plan, and her response was that she does not
recall. (8 RR 11). Defense counsel asks Maria if, after she heard the
bang of the shotgun, she knew who shot who, and her response is that
she did not. (8 RR 12). When asked whether she had seen Ryan slash at
people with his knife, she said she had seen him do that only once, and
that she was mistaken when she said she saw him do that to “people.”
(8 RR 13). She testifies that while she and Ryan lived in Cypress Cove
apartments, that he had a bad temper, that he broke the baby swing
23
out of anger, broke the door of the apartment, punched holes in the
wall, and hit her several times. (8 RR 16). In addition, Ryan would take
half the pain medication (Oxycontin) that Maria’s doctor prescribed her
after her miscarriage. (8 RR 15).) Ryan broke the baby’s swing and the
door at the apartment out of anger. (8 RR 16). She said that sometimes
when Ryan would hit her, that she would hit him back, but that it did
little good as he would strike her again. (8 RR 16).
Maria testified that while they lived at Cypress Cove, would take
cocaine, and a mixture of Xanax and beer. (8 RR 17,18). She stated that
the combination of Xanax and beer made Ryan think he was a “badass
and could do anything to anybody.” (8 RR 18). This particular
combination of medication, according to Maria, caused Ryan to act very
aggressive. (Id.) In fact, the couple had been evicted from their
apartment due to police being called for Ryan’s anger issues, and his
arrest for drugs in the parking lot. (8 RR 26). Maria testified that on
the night of the shooting, after Jesus had come home with the shotgun,
Ryan came back from Hector Hernandez’s house (across the street), and
she could tell he had taken a combination of Xanax and beer. (8 RR 25).
Maria testifies that Ryan drunkenly fought with Jose “Orlando” Torres,
24
but “doesn’t recall” whether Orlando was cut by Ryan or if Ryan was
drunk and on Xanax. (8 RR 39, 40). She also recalls an incident where
Ryan had a seizure and they had to get their neighbor, Joseph
“Chaparro” to help save Ryan’s life. (8 RR 40-42). She initially answers
in the affirmative when asked if the seizure was from a
methamphetamine overdose (8 RR 40) and then claims she “doesn’t
recall” what caused the seizure (8 RR 41). Maria testified that this
incident showed, once more, that Ryan needed to leave and that she did
not want him around the baby. (8 RR 42).
She asked Ryan to leave after the overdose, which was enough to
sober him up for a couple of days, before he was getting back to
“drugged out, zoned out, messed up.” (8 RR 43). Knowing that having
Ryan out of her life would create a financial hardship, she and Ryan
entered an agreement pursuant to which Ryan would pay child support.
(8 RR 44-45). Before entering into this agreement, Ryan told Maria
that leaving the house and losing both her and Jeffery would cause an
emotional collapse. (8 RR 45). Ryan signed the agreement. The
agreement and pieces of Maria’s diary were in Ryan’s wallet when he
died. (8 RR 46). Maria testifies that she “does not recall” if Jesus told
25
her that he shot Ryan because Ryan came at him with a knife. (8 RR
51). She then testified that Ryan would get aggressive with people
“almost at the drop of the hat.” (8 RR 51). She felt that Ryan was
choosing drugs over her, Jeffrey, and living a moral life. ( 8 RR 52).
Jesus Rivera is the defendant in this case. He testified that he did
indeed shoot Ryan, but that he only did so to defend himself, and had no
pre-existing desire to kill Ryan. (9 RR 134). Jesus testified when he
purchased the shotgun, he did so intending to share it with Ryan. At
the time of the shooting, Jesus had been sleeping on the living room
couch, and was doing so at the request of his sister. (9 RR 137). While
Jesus was waiting for his father to pick him up to go get the gun, Jesus
and Ryan were visiting on the back patio. (9 RR 141). Ryan took both
Xanax and Klimax at this time. (9 RR 141). Jesus loved Ryan, and he
had no ill feelings towards Ryan. The day had started just like any
regular work day. (9 RR 138). He was in a good mood; he got paid that
day, a good paycheck, and received a turkey from his employer. (9 RR
138-9). In fact, when he arrived home that afternoon around 4:00 or
5:00 pm, from work, Jesus gave Ryan a hug and a handshake. (9 RR
141). Jesus was out of drugs so Ryan shared some Klimax in a blunt.
26
(9 RR 145). A blunt is a cigarillo, hollowed out and filled with Klimax.
(9 RR 145). He and his Dad went to buy a gun at Academy. Jesus had
never shot a shotgun, hand gun, or a pistol in his life before that
evening. (9 RR 162). He wanted to show the gun to Ryan. He saw
Ryan was messed up on drugs and Jesus did not think it was wise to let
Ryan handle the gun. (9 RR 173). Ryan made a comment to Frijol, and
Ryan seemed agitated. (9 RR 177). Ryan wanted to see the gun and
Jesus told him no. (9 RR 180). Jesus went to sleep and woke up during
the night and watched T.V. (9 RR 183-85). He saw Ryan come out of
the master bedroom. Ryan seemed agitated and aggressive, and still
messed up on Xanax and beer. (9 RR 185). Ryan was asking for his
Klimax. “Where’s my Klimax?” (9 RR 188). Ryan smoked some in his
pipe, and was different in how he “hit the bowl.” Ryan was inhaling
aggressively and strongly. (9 RR 190).
Jesus then went to sleep on the couch. He woke up to a voice, and he
looked at the direction of the loveseat/couch. He saw Ryan’s face
staring directly into his face. Ryan’s right hand was clenching the knife
and his left hand was also clenched. (10 RR 37). He was frightened
and moved away, grabbed his shotgun under the couch, and stood up.
27
Ryan kept moving towards him and Jesus chambered a shot. The
chambering had no effect on Ryan, who kept moving towards him, and
made a movement with the knife towards the left side of Jesus’ neck or
face. (10 RR 48). Jesus threw back his head, swung around and threw
up the gun and shot. (10 RR 49). Jesus could not comprehend what
had just happened. (10 RR 55). It was Maria’s idea to move the body.
Jesus needed help so he called Frijol. (10 RR 70).
C. Application of Law to the Facts
The objective facts, evidence and testimony elicited from the State
and Defense raised the issue of self-defense against Appellant’s friend
Ryan, a paranoid, aggressive, drug addict. According to the
overwhelming weight of the testimony, everyone present at the scene
was in fear of the decedent, Ryan Yearley at some point in the past,
continuing to the present.
One may use 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.”
TEX. PENAL CODE § 9.31. This includes using deadly force against the
other if “the actor would be justified in using force against the other
28
under Section 9.31,” and “when and to the degree the actor reasonably
believes the deadly force is immediately necessary” “to protect the actor
[or another] against the other's use or attempted use of unlawful deadly
force.” TEX. PENAL CODE § 9.32(a). The right of self-defense is at least
as fundamental to freedom and liberty as free speech, the right to vote,
and trial by jury. Ferrel v. State, 16 S.W.3d 861, 865 (Tex.App.-Houston
[14th Dist] 2000), rev'd on other grounds, 55 S.W.3d 586 (Tex.Crim.App.
2001).
When a justification theory of defense is raised:
[a] defendant has the burden of producing some evidence to support a
claim of self-defense. Once the defendant produces such evidence, the
State then bears the burden of persuasion to disprove the raised
defense. The burden of persuasion is not one that requires the
production of evidence; rather it requires only that the State prove its
case beyond a reasonable doubt. When a fact finder determines that the
defendant is guilty, there is an implicit finding against the defensive
theory.
Miller v. State, 177S.W.3d 177, 183 (Tex.App.-Houston [1st Dist] 2005,
pet ref'd), citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.
29
2003). It is well-settled that when the legal sufficiency of the evidence
supporting a fact finder rejection of a defense such as self-defense in a
murder case is challenged by a defendant,
“we look not to whether the State presented evidence which refuted
appellant's self-defense testimony, but rather we 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 murder beyond a reasonable doubt and also would have
found against appellant on the self-defense issue beyond a reasonable
doubt.”
Id., quoting, Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991).
Under Texas law of self-defense, a defendant's conduct is excused
if he formed a reasonable belief that deadly force was immediately
necessary to protect himself or a third party from another use or
attempted use of unlawful deadly force. See TEX. PENAL CODE, §
9.32. The reasonableness of the belief is measured by the objective
standard of an “ordinary and prudent man.” See, TEX. PENAL CODE §
1.07(42); see also Davis v. State, 104.W.3d 177, 181 (Tex.App.-Waco
2003, no pet.)(“Although the jury employs an objective standard to
determine the reasonableness of the defendant's belief, it must view the
facts from the defendant's perspective.”). Thus, under the instruction
correctly charging the law Jesus Rivera was entitled to acquittal if a
person in his position reasonably believed the deadly force was
30
immediately necessary to protect himself or another against the Ryan’s
use or attempted use of unlawful deadly force. TEX. PENAL CODE §
9.32, 9.33.
“Deadly force” means force that is intended or known by the actor
to cause, or in the manner of its use or intended use is capable of
causing, death or serious bodily injury. TEX. PENAL CODE § 9.01(3).8
“Reasonable belief means a belief that would be held by an ordinary and
prudent man in the same circumstances as the actor. TEX. PENAL
CODE § 1.07(a)(42).
In a related defensive issue, the United States Supreme Court in
Davis v. United States, 160 U.S. 469 (1895), held:
“We are unable to assent to the doctrine that, in a prosecution for
murder, the defense being insanity and the fact of the killing with a
deadly weapon being clearly established, it is the duty of the jury to
convict where the evidence is equally balanced on the issue as to the
sanity of the accused at the time of the killing. On the contrary, he is
entitled to an acquittal of the specific crime charged, if upon all the
evidence, there is a reasonable doubt whether he was capable in law of
committing crime.” Id., at 484.
31
“The greater weight and preponderance of the credible evidence herein
shows that [Rivera] acted in self-defense from the apparent danger
created by the attack of Ryan Yearley, so that it is manifestly unjust”
that he was convicted of manslaughter. The unfortunate death of Ryan
arose from an attack upon Jesus Rivera by his dear friend, his brother
by friendship, due to the assailant’s apparent threat of stabbing Rivera,
not from any act that the law justified Rivera in using to protect
himself. The jury's verdict to the contrary is, therefore, against the
great weight of the evidence. Jesus Rivera was entitled to a verdict of
not guilty as his acts were clearly in the defense of himself.
Consequently, the jury's rejection of Appellant’s justification of self-
defense and the jury's subsequent verdict was not rational. Accordingly,
this Court should, as it must, enter an order reversing the judgment
entered in the court below and thereafter enter a judgment of acquittal.
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, the Appellant, prays
the Court of Appeals uphold these points of error, reverse the judgment
and render an acquittal, or remand this case for a new trial, or in the
32
alternative reform the judgments to reflect one conviction for murder, or
for such other relief as justice may require.
Respectfully submitted,
/S/_____________________________
ANGELA MOORE
SBOT # 14320110
310 S. St. Mary’s Suite 1830
San Antonio, Texas 78205
210-364-0013
amoorelaw2014@gmail.com
Certificate of Compliance
Pursuant to Rule 9.4(i)(2)(B) this brief is a direct appeal to the
Court of Appeals in a case in which the death penalty has been assessed
and the word count does not exceed 15,000 words.
On this 14th day of December, 2015.
___/s/__________________
ANGELA MOORE
SBOT # 14320110
310 S. St. Mary’s Suite 1830
San Antonio, Texas 78205
33
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the above
and foregoing Brief For Appellant has been delivered via electronic
service to the Bexar County District Attorney’s Office and to Appellant
via U.S. mail.
___/s/__________________
ANGELA MOORE
34