STEVEN RAY LUNA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 5, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01647-CR
No. 05-08-01648-CR
............................
 
STEVEN RAY LUNA, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause Nos. F07-50368-K and F07-50369-K
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OPINION
 
Before Justices Moseley, Bridges, and Fillmore
Opinion By Justice Fillmore
 
 
        A jury convicted Steven Ray Luna of two offenses of aggravated assault with a deadly weapon. After finding one enhancement allegation true, the trial court sentenced Luna to twenty years' confinement on each offense. In his first two issues, Luna asserts the evidence is legally and factually insufficient to support the convictions and the rejection of his claim of self-defense. In issues three and four, Luna contends the trial court erred by admitting Luna's prior convictions into evidence for impeachment purposes. We affirm the trial court's judgments.
 
 
Background
Chavez's Testimony
 
        Alex Chavez, who was fifteen years old at the time, stole a van and began driving it recklessly through a residential neighborhood. According to Chavez, residents of the neighborhood began throwing beer bottles at the van, and he began driving the van faster. A man threw a brick through the broken passenger window, and the brick hit Chavez in the leg. Chavez lost control of the van, hit another car, and almost hit a house.
        Chavez testified he got out of the van and began to run. According to Chavez, as he approached a near-by school, a man “sucker punched” him in the face and tackled him. Chavez testified at least three people held him face-down and someone kicked him after he was on the ground. Chavez testified he heard his friend “Tink,” an African-American male who was nineteen or twenty years old, say “get off my boy, Little Chavez.” He also heard another voice. Chavez testified he did not know Luna.
The State's Witnesses
 
        Nydia Ruiz, Ruiz's son-in-law James Huntley, Edward Pickrell, and Steven Kenton testified they saw a van driving through their neighborhood at a high rate of speed. They were concerned about the way the van was being driven because children were in the playground of the neighborhood school. Ruiz testified the van failed to stop at a stop sign, went into the neighbor's yard, and then returned to the street. Kenton testified the van ran a stop sign at a high rate of speed and then hit a car at the end of the street. Huntley and Pickrell testified they heard a crash. Ruiz, Huntley, and Pickrell all went to the scene of the accident.
        Kenton also ran toward the accident scene because he was afraid a child had been hit. Kenton testified the driver of the van started running from the accident scene and the owner of the house at which the accident occurred chased the driver. Kenton changed course and ran through the schoolyard. As Chavez came through the gate to the school, he attempted to hit Kenton. Kenton blocked the punch, hit Chavez in the face, and threw Chavez to the ground. Kenton then threw his legs over Chavez and held him face-down in the grass. Kenton, Ruiz, and Huntley testified no one hit Chavez after he was on the ground.
        Luna drove up to the scene. Ruiz testified Luna got out of the car and told Kenton to “let go” of his “home dude” or “home boy.” Kenton testified Luna said to “let his home boy” go. Huntley testified Luna said to “let him up” and an African-American teenager also told Kenton to let Chavez up. Huntley told the teenager that Chavez was going to jail and the teenager left. Both Huntley and Kenton testified they told Luna that Chavez was being held for the police. Kenton testified Luna then turned and “cussed” at people and threatened them. According to Ruiz, when nobody paid any attention to Luna, he went back to his car. Based on Luna's aggressive behavior, Kenton did not think Luna was leaving but was going to get something. Huntley testified that he thought Luna was going to get a gun out of the car. Huntley denied that he followed Luna to the car or stopped Luna from getting into the car.
        Kenton testified Luna came out of the car with a rolled-up black shirt under his arm. Ruiz testified Luna had a rag under his arm. Ruiz thought Luna had a gun and she pulled his arm down. Kenton testified an “elderly lady” hit Luna's arm and Luna dropped the bundle. Huntley also testified that Luna was holding a shirt and Ruiz knocked it out of his hand. Ruiz, Huntley, and Kenton testified a large knife fell on the ground. Ruiz testified that Luna picked up the knife, grabbed her, and threatened to stab her. According to Huntley, Luna picked up the knife, grabbed Ruiz, and said he was going to kill her. Kenton testified Luna picked up the knife, grabbed the lady's arm, and threatened to stab her.         Both Ruiz and Huntley testified that Huntley jumped on Luna and tried to grab the knife. Kenton testified a man knocked Luna away and then Luna started stabbing at people. According to Huntley, Luna stabbed him in the hand. Ruiz testified that Huntley slipped and she saw blood on his hand. Huntley testified that after he slipped, Luna started to stab him again. Kenton testified that a man got cut on the hand and Luna tried to stab the man again. According to Kenton, another man then stepped into the fight.
        Pickrell testified he had four or five beers on the day of the incident but was not “totally intoxicated.” According to Pickrell, he was parking his truck when he saw Huntley fall backwards. Pickrell realized something was wrong and knocked Luna off Huntley. Ruiz and Huntley testified that Pickrell jumped on Luna to help Huntley. According to Ruiz, Pickrell and Luna wound up “on the other side” of the car. Huntley testified the fight between Luna and Pickrell occurred on the driver's side of Luna's car near the rear wheel. According to Kenton, the fight began at the front of Luna's car and moved to the rear of the car. Although he could not clearly remember the location of events, Pickrell believed the fight was on the passenger side of Luna's car.
        Pickrell testified Luna stabbed him twice in the neck. Ruiz saw Luna stab Pickrell in the neck. Kenton also saw Luna stab a man twice in the neck. Ruiz, Huntley, and Kenton testified the knife broke during the fight and Luna returned to the car. Pickrell testified he pushed Luna away and Luna ran to his car. According to Pickrell, someone slammed Luna in the car door and Luna dropped the knife. Pickrell testified the knife broke when it hit the ground. Ruiz, Huntley, Kenton, and Pickrell testified Luna grabbed a hammer from the car. Ruiz testified Luna started trying to hit people with the hammer and then threw the hammer. Huntley testified Luna was swinging the hammer at people and was going back towards Kenton and Chavez when the hammer flew out of his hand. Kenton and Pickrell testified Luna was swinging the hammer when it flew out of his hand. Ruiz and Pickrell testified Luna then tried to run away. Both Ruiz and Huntley testified that Huntley, and perhaps another neighbor, tackled Luna.
        Ruiz, Huntley, Pickrell, and Kenton gave written statements to the police approximately one week after the fight. Ruiz and Huntley discussed the incident prior to giving their statements. Kenton testified the only discussions he had with other witnesses occurred on the date of the incident.
        Detective Kate Zimmer testified she collected evidence from the scene. Zimmer found a shirt and the blade of the knife by the driver's side door of Luna's car. She found the handle of a knife on the passenger's side of Luna's car. Zimmer found blood splatter on the inside of the driver's door and the outside of the driver's side of Luna's car as well as on the ground on the driver's side of the car.
Luna's Testimony
 
        Luna testified that, on the date of the incident, he had visited his girlfriend Holly Davis. He was driving through the neighborhood on the way to the park to take his dog for a walk when he saw a young boy with a swollen face being held down on the ground. The young man was gasping for air. Luna got out of the car and told the man holding the boy down that he was suffocating him. Luna testified he did not say to let the boy up. He “kind of referred to that,” but denied he was hostile. According to Luna, an African-American male was saying the same thing. Luna testified he did not know the boy on the ground, did not know what had happened, and did not call the young man his “home boy.”
        Luna testified he returned to his car to use his cellphone to call the police. Huntley and another person followed him to the car. As Luna tried to close the car door, one of the men put his hand on the door. Luna testified he was mixed-up, paranoid, and afraid. Luna was preparing to move into an apartment with Davis and had some silverware, including a block of knives, on the passenger side of the car. He grabbed a knife and got out of the car. Luna testified he did not wrap the knife in a shirt, but believes the knife caught the shirt as he was getting out of the car. According to Luna, he “put up his guards,” but did not approach the men. Luna testified he was trying only to defend himself and the boy and was not trying to hurt anybody.
        Luna testified people were “swinging” at him. Someone grabbed the knife and was cut. Another man tried to tackle Luna, and Luna cut him. Luna denied trying to stab the second man. He was trying to get the man off of him so that he could get away. Luna testified the entire fight happened on the driver's side of the car.
        According to Luna, he saw a man in his car trying to get the keys. When Luna tried to grab the keys, the man reached back into the car and grabbed a hammer. The hammer slipped out of the man's hand, and Luna threw the hammer away so that nobody would get hurt. Luna denied he tried to run away. Luna admitted nobody else had a weapon and that he had opportunities to leave the scene.
        The jury convicted Luna of aggravated assault of Huntley and Pickrell.
Sufficiency of the Evidence
 
        In his first two issues, Luna asserts the evidence is legally and factually insufficient to support his convictions in light of his testimony that he acted in self-defense. A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). The State has the burden of persuasion when self-defense is raised. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. This burden does not require the State to produce evidence refuting the self-defense claim; rather, the burden requires the State to prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. Self-defense is an issue of fact to be determined by the jury. Saxton, 804 S.W.2d at 913-14. A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.
        In a legal-sufficiency review on a claim of self-defense, we view the evidence in the light most favorable to the verdict to see if any rational trier of fact could have found (1) the essential elements of the offense beyond a reasonable doubt, and (2) against the defendant on the self-defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. We may not “re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact- finder.” Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
        In a factual sufficiency review on a self-defense claim, we examine all of the evidence in a neutral light and ask “whether the State's evidence taken alone is too weak to support the finding [of guilt] and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.” Zuliani, 97 S.W.3d at 595. In a factual sufficiency review, we are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a “very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimony. Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Marshall, 210 S.W.3d at 625.
        A person commits the offense of aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. §§ 22.01(a), 22.02(a)(2) (Vernon Supp. 2009). However, as applicable to this case, a person is justified in using deadly force against another when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force and a reasonable person in the person's situation would not have retreated. Act of May 29, 1993, 73rd Leg. R.S., ch. 900, § 1.01, sec. 9.31, 1993 Tex. Gen. Laws 3586, 3598 (current version at Tex. Penal Code Ann. § 9.31 (Vernon Supp. 2009)); Act of May 16, 1995, 74th Leg. R.S., ch. 235, § 1, sec. 9.32, 1995 Tex. Gen. Laws 2141, 2141-42 (current version at Tex. Penal Code Ann. § 9.32 (Vernon Supp. 2009)).   See Footnote 1 
        Ruiz, Huntley, Pickrell, and Kenton testified Luna was the aggressor in the fight and stabbed both Huntley and Pickrell with a knife. Luna, however, argues the evidence was insufficient to support the convictions because (1) he testified he acted in self-defense, and (2) the other witnesses were not credible because their testimony was inconsistent about the location of various events and they discussed the incident prior to giving their written statements to the police.
        Luna's testimony alone will not conclusively prove self-defense as a matter of law. London v. State, No. 05-07-00983-CR, 2008 WL 5102975, at *3 (Tex. App.-Dallas Apr. 29, 2009, pet. ref'd). Further, the discrepancies in the other witnesses' testimony and the discussion of the incident by at least some of the witnesses prior to giving their statements to the police was presented to the jury. It was within the jury's province to resolve the disputed versions of the events in question, and the jury was free to accept or reject any or all of the defensive evidence. Saxton, 804 S.W.2d at 914; Lee v. State, 259 S.W.3d 785, 792-93 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Thus, the jury could have chosen to disbelieve the testimony supporting Luna's self-defense claim and believe other testimony that did not support the claim of self-defense. Lee, 259 S.W.3d at 791, 792-93.
        Considering all the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have, beyond a reasonable doubt, found Luna guilty of all of the elements of the offense of aggravated assault and rejected Luna's self-defense claim. See Saxton, 804 S.W.2d at 914. Further, viewing the evidence in a neutral light, we cannot say the evidence supporting the convictions is too weak to support the finding of guilt or that the findings of guilt or the jury's rejection of Luna's self-defense claim is against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. We conclude the evidence is both legally and factually sufficient to support the convictions and the jury's implied rejection of Luna's self-defense claim. We overrule Luna's first two issues.
Prior Convictions
 
        In his third and fourth issues, Luna asserts the trial court erred by failing to perform the required balancing test before admitting Luna's prior convictions for purposes of impeachment and by allowing the State to impeach Luna with the prior convictions. We review the trial court's decision to admit the prior convictions for a clear abuse of discretion. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). The trial court has “wide discretion” in deciding whether to admit a prior conviction, and we will reverse only if the trial court's decision lies outside the zone of reasonable disagreement. Id. at 881.
        The State sought to impeach Luna with seven prior convictions. Luna's counsel objected, arguing the offenses were not similar to the offense with which Luna was charged, were too remote in time to be anything but prejudicial, and were not probative. The trial court ruled Luna's three prior convictions for evading arrest were not admissible, but the prosecutor could question Luna about a 1996 conviction for theft, a 1999 conviction for a prohibited substance in jail, a 2000 conviction for the burglary of a vehicle, and a 2001 conviction for the unauthorized use of a motor vehicle. Luna's counsel then argued none of the offenses were assaultive type offenses. The trial court replied:
Well, assaultive offenses are the ones which you would be more concerned about, actually, because that would show more propensity. I mean, it's the assaultive offense you would have more argument about coming in since he's charged with an assaultive offense. None of these are assaultive offenses. Definitely moral turpitude. And C. I see, is, you know, Prohibited Substance in the jail, that's kind of a subterfuge. That's my opinion of it, you know. I don't know. Unauthorized Use of a Vehicle is a theft like offense, moral turpitude offense. I mean I think without having any cases in front of me where the Court of Criminal Appeals has gone on this I think those are pretty safe ones to allow him to impeach him.
 
         A conviction for a prior felony or crime of moral turpitude is generally admissible for impeachment purposes if the trial court finds the probative value of the conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a). If the date of conviction or the release of the witness from confinement is more than ten years from the moment of impeachment, the conviction can be used for impeachment only if the probative value of the conviction substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). When determining whether the probative value of a prior conviction outweighs its prejudicial effect, the trial court may consider a number of factors including (1) the impeachment value of the prior conviction; (2) the temporal proximity of the prior conviction (relative to the charged offense) and the witness's subsequent history; (3) the similarity between the prior conviction and the charged offense; (4) the importance of the witness's testimony; and (5) the importance of the witness's credibility. Theus, 845 S.W.2d at 880.
        In his third issue, Luna argues the trial court erred by “not formally conduct[ing] the balancing test as the Court in Theus stated is mandated by Rule 609.” However, the trial court is not required to perform the balancing test on the record, and we may presume the trial court conducted the test. Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.-Texarkana 1999, no pet.). Further, the record reflects the trial court expressly considered a number of the Theus factors and then ruled only four of Luna's seven prior convictions were admissible. We overrule Luna's third issue.
        In his fourth issue, Luna contends the trial court erred by admitting his prior convictions for impeachment purposes because a balancing of the Theus factors compels the conclusion the convictions were not admissible. A review of the relevant factors does not support Luna's contention.
        The first Theus factor considers the impeachment value of the prior conviction. Theus, 845 S.W.2d at 880-81. Crimes that involve deception have a higher impeachment value than crimes involving violence. Id. Luna concedes the “theft-related convictions are crimes that would ordinarily bear against a witness's veracity,” but argues the conviction for a prohibited substance in jail does not. However, the trial court expressly stated it believed the crime involved subterfuge, and we cannot say this was an abuse of the trial court's wide discretion. The first factor weighs in favor of the admissibility of all four convictions.
        The second Theus factor favors admission of the prior conviction if (1) the past crime is recent and (2) the witness has demonstrated a propensity for breaking the law. Id. Rule of evidence 609 provides that a conviction is of sufficient proximity if less than 10 years has elapsed since the later of the date of the prior conviction or the date of the witness's release from custody. Tex. R. Evid. 609(b). All of Luna's prior convictions fell within the ten year period or were revived by subsequent convictions.   See Footnote 2  Further, the number of prior convictions demonstrate Luna has a propensity for breaking the law. This factor also supports the admissibility of the convictions.
        The third Theus factor examines the similarity between the charged offense and the past crime. A similarity between the offenses weighs against admission of the prior crime because it suggests the jury might convict on the perception of a pattern of past conduct rather than on the facts of the charged offense. Theus, 845 S.W.2d at 880-81. Luna concedes the prior crimes were not similar in nature to the present offenses and that this factor weighs in favor of admission.
        The fourth and fifth Theus factors deal with the importance of the witness's testimony at trial and his credibility as a witness. These factors are related because they both depend on the nature of the defendant's defense and the means available to him of proving that defense. Id. When the case involves the testimony of only the defendant and the State's witnesses on the disputed issue, the importance of the defendant's testimony and credibility escalates. Id. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility. Id. Luna was the only witness to testify that he was not the aggressor in the fight and was only trying to defend himself. Under these circumstances, Luna's credibility was a crucial factor in the case, and the State's need to impeach his testimony was great. Accordingly, the fourth and fifth factors also support admission of the prior convictions.
        Having reviewed the record in this case and considered the Theus factors, we cannot conclude the trial court abused its discretion by admitting the prior convictions. We overrule Luna's fourth issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
081647F.U05
 
Footnote 1 Sections 9.31 and 9.32 of the penal code were amended effective September 1, 2007. Act of Mar. 20, 2007, 80th Leg. R.S., ch. 1, §§ 2, 3, 2007 Tex. Gen. Laws 1, 1-2 (current versions at Tex. Penal Code Ann. §§ 9.31, 9.32 (Vernon Supp. 2009)). Because this offense was committed on March 25, 2007, we use the statute in effect at that time. Act of March 20, 2007, 80th Leg. R.S., ch. 1, § 5(a), 2007 Tex. Gen. Laws 1, 2.
Footnote 2 Luna acknowledges his subsequent convictions removed any specific objection that the 1996 conviction was too remote. See Allen v. State, 740 S.W.2d 81, 83 (Tex. App.-Dallas 1987, pet. ref'd); Thomas v. State, No. 01-08-00305-CR, 2009 WL 3321411, at *6 (Tex. App.-Houston [1st Dist.] Oct. 15, 2009, pet. ref'd). Instead, Luna complains about the general temporal distance between all the prior offenses and the instant cases.