Basilio Felan Estrada, Jr. aka Chico Estrada v. The State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-94-275-CR

BASILIO FELAN ESTRADA, JR.

A/K/A CHICO ESTRADA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 11748

O P I N I O N

A jury found Basilio Estrada, Jr. guilty of murdering Jimmy Ortega, and the court assessed punishment of thirty years' imprisonment. See Tex. Penal Code Ann. 19.02(b)(1), (2) (Vernon 1994). He raises two points of error, both focused on the court's charge. In the first point, he complains that the court failed to instruct the jury concerning his right of self-defense against multiple assailants. By his second point, he argues that the court improperly limited the jury's consideration of which of his acts were required to be voluntary for him to be criminally liable. We will affirm.

FACTUAL BACKGROUND

Estrada shot Ortega on April 23, 1994, at Steel Creek Park on Lake Whitney. However, the events that led to the murder began a year earlier at the same park. On May 16, 1993, two brothers, John and Sammy Ballesteros, assaulted Estrada. The brothers were seeking revenge for Estrada's fight with their father years earlier. Ortega had invited Estrada to the site of the 1993 assault. Estrada admitted that he developed the "damn habit" of carrying a Davis .380 semiautomatic pistol with him wherever he went as a result of the fight with the Ballesteros brothers.

On April 23, 1994, Ortega, the Ballesteros brothers, and others, including some of the men's wives and children, gathered at the park for an afternoon picnic-party. Estrada knew about the gathering because earlier that day he had talked to Ortega, who told him about the party and suggested that he come. Estrada did attend, accompanied by Mike Stapp, but was told that he should leave before trouble started between him and the Ballesteros brothers. Estrada and Stapp left, only to return after obtaining more beer. Stapp approached Sammy Ballesteros stating, "Whoever kicked [Estrada's] ass is going to get his ass kicked." This led to a fight between Sammy and Stapp, but several of the picnickers intervened, separating the two.

When the fight between Sammy and Stapp erupted, Tony Olivarri, Jr., who was standing across the road from the main picnic site, began yelling at the two to stop. Mike Hicks, one of Sammy's friends, apparently acting under the impression that Olivarri was about to join in on the fight on Stapp's side, ran up to Olivarri and hit him. Olivarri, in return, knocked Hicks to the ground. While Hicks was lying on the ground, John Ballesteros attacked Olivarri, presumably coming to Hicks' aid. Again, several others, including Ortega, intervened to end this fight. Although the combatants were separated, John Ballesteros continued to attempt to attack Olivarri.

Ortega left the Hicks-Olivarri-John Ballesteros fight and approached Estrada, who had remained at Stapp's truck during the altercations. According to Estrada, Ortega told him not to go anywhere and attempted to grab him. They began pushing each other and Ortega inadvertently hit Estrada in the face. Other witnesses testified that Ortega was trying to calm the situation down and could be heard attempting to reassure Estrada. Estrada went to the cab of Stapp's pickup, agreeing to remain there, and Ortega stayed at the corner of the truck. Estrada "looked back, and [saw] kind of a crowd was coming back this way. That's when [he] grabbed the gun."

Estrada loaded the weapon and shot Ortega, either when Estrada pulled the trigger or when the gun discharged as the slide slammed home. The bullet perforated Ortega's aortic arch, causing him to bleed to death within thirty seconds.

FIRST POINT: SELF-DEFENSE AGAINST MULTIPLE ASSAILANTS

In his first point Estrada complains that the court refused to charge the jury on his right of self-defense against multiple assailants. See Tex. Penal Code Ann. 9.31, 9.32 (Vernon 1994); Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985). The court's charge did not contain an instruction regarding the justification of self-defense. Estrada objected that, "although it was raised by the evidence, the Court has failed to charge the jury on self-defense or defense from a multitude of assailants as a justification." His argument now is confined to his request for an instruction relating to multiple assailants.

"[A] defendant is entitled to a charge on the right of self-defense against multiple assailants if there is evidence, viewed from the accused's standpoint, that he was in danger of an unlawful attack or a threatened attack at the hands of more than one assailant.'" Frank, 688 S.W.2d at 868. However, the right to defend against several assailants is derived from the right of self-defense. Tanguma v. State, 721 S.W.2d 408, 412 (Tex. App. Corpus Christi 1986, pet. ref'd). "The use of deadly force is not justified [as self-defense] except as provided in [Section 9.32]." Tex. Penal Code Ann. 9.31(d). Thus, we must first determine if Estrada was entitled to an instruction on the use of deadly force in self-defense under the provisions of the Penal Code before reaching his argument that the court should have instructed on defense against multiple assailants.

A person is justified in using deadly force only when he has formed a reasonable belief that the deadly force is immediately necessary to protect himself against another's use of unlawful deadly force or to prevent the imminent commission of specified crimes of violence. Id. 9.32(3); Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App. 1994). If the evidence raises self-defense, the court should submit the issue to the jury. Riddle, 888 S.W.2d at 6. The defendant is entitled to the instruction on self-defense even if the evidence raising the issue is weak, contradicted or not credible. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). If the issue is not raised by the evidence, the court does not err by refusing to submit an instruction. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 114 S. Ct. 116, 126 L. Ed. 2d 82 (1993). "In absence of evidence of use or attempted use of deadly force by the deceased, the statutory defense permitted by 9.32 is not available, and a defendant is not entitled to a jury instruction." Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986).

Estrada testified that he "thought everybody was coming around" and that "they was going to beat [Stapp] up, then I just figured I was going to be next." He pulled the pistol out of the pickup because he "just didn't want to get beat up, period . . . [he] just didn't want to get beat up." He "didn't want nobody coming at [him]," and he "was trying to bluff them, scare them off or whatever."

There is nothing in the record to indicate that any of the others at the scene were armed. See Hayes, 728 S.W.2d at 807-08. Neither is there any evidence that Estrada believed the others were attempting to use deadly force against him. See id. His fear of getting "beat up," without more, does not rise to the level of a fear of unlawful deadly force. See Tex. Penal Code Ann. 1.07(46); 9.01(3). Nor are any of the specified violent crimes implicated by the evidence. See id. 9.32(3)(B). Thus, the evidence does not raise the issue of self-defense by deadly force, and the court did not err by failing to include an instruction relating to it in the charge. See Muniz, 851 S.W.2d at 254; Werner, 711 S.W.2d at 644. Because the right to defend against several assailants is derived from the right of self-defense, the court did not err when it overruled Estrada's objection to the lack of a multiple-assailant instruction in the charge. See Tanguma, 721 S.W.2d at 412. Point one is overruled.

POINT TWO: VOLUNTARINESS INSTRUCTION

In point two, Estrada argues that the court's instruction on his defense of involuntary conduct was erroneous because it constitutes a comment on the evidence by the court and contains a misstatement of the law. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 1995). The court instructed the jury:

You are instructed that a person commits an offense only if he voluntarily engages in conduct accompanied with the requisite mental state. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.

Therefore, before you can find the defendant guilty of any offense charged herein, to wit: murder, voluntary manslaughter, involuntary manslaughter, aggravated assault or criminally negligent homicide, you must find from the evidence beyond a reasonable doubt that the defendant engaged in the conduct charged voluntarily that is: the pointing of the firearm at the decedent, together with the requisite mental state as defined for each offense, as the firearm was discharged. Unless you so find from the evidence beyond a reasonable doubt that the defendant engaged in the conduct with which he is charged, together with the requisite mental state, you shall acquit the defendant and say by your verdict "Not Guilty."

Estrada argues that this instruction improperly focuses the jury's attention on the act of pointing the weapon at Ortega and misstates what constitutes the conduct charged.

Murder is a "result of conduct" offense. Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). Thus, neither engaging in conduct nor the intent to engage in conduct is an element of the offense. Id. However, the Penal Code "superimposes" a voluntary conduct requirement onto every offense. See Tex. Penal Code Ann. 6.01(a); Alford v. State, 866 S.W.2d 619, 622 (Tex. Crim. App. 1993). The "voluntary conduct" requirement is met when there is a voluntary act and an accompanying mental state; an involuntary act included in the chain of events does not necessarily change the nature of the conduct from voluntary to involuntary. Joiner v. State, 727 S.W.2d 534, 536 (Tex. Crim. App. 1987); George v. State, 681 S.W.2d 43, 45 (Tex. Crim. App. 1984).

If the defendant contests the voluntariness of the act that led to the result and the issue of voluntariness is raised by the evidence, the court should instruct the jury on the question. See Garcia v. State, 605 S.W.2d 565, 566 (Tex. Crim. App. [Panel Op.] 1980); Vollbaum v. State, 833 S.W.2d 652, 656-57 (Tex. App. Waco 1992, pet. ref'd). The instruction must include an application of the law to the facts. Vollbaum, 833 S.W.2d at 657.

Estrada testified that he did not pull the pistol's trigger but that it discharged when the slide cycled home. However, he testified that he retrieved the firearm from Stapp's truck, pulled it from its holster, placed a full magazine into the handle, pointed the weapon at Ortega, and pulled the slide back prior to the fatal shot. "[T]he intentional pointing of a weapon is a voluntary act and the resulting death is imputable to [Estrada]." See Conroy v. State, 843 S.W.2d 67, 72 (Tex. App. Houston [1st Dist.] 1992, no pet.); also Joiner, 727 S.W.2d at 537. "[He] pulled the slide back on his handgun and is, thus, responsible for the fatal results of his voluntary actions." See Henderson v. State, 825 S.W.2d 746, 751 (Tex. App. Houston [14th Dist.] 1992, pet. ref'd); also George, 681 S.W.2d at 47. Therefore, the court's charge correctly focused on the pointing of the weapon at the time of the discharge. Estrada voluntary engaged in the actions leading up to the very moment the weapon discharged, whether the discharge was voluntary or involuntary, and, if he had the requisite mental state at the time of the discharge, he can be held criminally responsible for all of the results of his voluntary course of conduct. See id.

Estrada contested the voluntariness of the shot that killed Ortega, and the court instructed the jury on the issue. He complains that the charge instructs the jury "that if [he] pointed a firearm at the decedent, he acted voluntarily', and so could be found guilty." This is a correct statement of the law, and the court's charge incorporated and correctly applied this law to the facts of this case. Thus, the charge was not a comment on the evidence. See Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988).

Estrada also argues that the charge contains a "misstatement of the law" because it labels "the pointing of the firearm" as the conduct charged. However, he misreads the charge; it instructs the jury as to what constitutes "voluntary conduct" as applied to the facts of the case. Again, this conduct "the pointing of the firearm at the decedent . . . as the firearm was discharged" is all that is necessary to satisfy the "voluntary conduct" requirement of the Penal Code. See Tex. Penal Code Ann. 6.01(a); Joiner, 727 S.W.2d at 536; George, 681 S.W.2d at 47; Conroy, 843 S.W.2d at 72; Henderson, 825 S.W.2d at 751. Thus, the court did not "misstate" the law in its charge. Point two is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 31, 1995

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