RICARDO SOLIS v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-00-680-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

RICARDO SOLIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, and Rodriguez

Opinion by Justice Dorsey

Ricardo Solis appeals his conviction for manslaughter. He brings five points of error contending the evidence is legally and factually insufficient and that he received ineffective assistance of counsel. We affirm.

I. Facts

Alfonso Gonzales and Amanda Molina were at appellant=s house when appellant put a revolver to his head and clicked the trigger. Gonzales and Molina did not know that the gun was unloaded, and appellant intended this as a trick. Later that day Catarino ACat@ De La Fuente, III, arrived at appellant=s house. Appellant got the revolver along with a live round and an empty round. He put what he thought was the empty round into the revolver, pointed it at his own head, spun the cylinder, and clicked the trigger two or three times. Then he pointed the gun at Cat and said, AThere=s nothing in it.@ He pulled the trigger and shot Cat in the chest, killing him. Appellant=s confession was admitted into evidence. It stated, in relevant part:

Alfonso [Gonzales] told me to show Catarino the game I was playing earlier. I had the two bullets in my hand, the empty one and the real one. I placed the one bullet in my pocket and opened the cylinder and placed what I thought was the empty bullet in the gun. I told Catarino, ALet=s play.@ I spun the cylinder and closed it. Catarino told me, AYou=ve got to spin it faster.@ I opened it and spun the cylinder, and then Catarino spun it, and I put the gun to my head, clicked the trigger. I opened it again, and again, nothing happened. I don=t remember if I shot at myself two or three times. I clicked the pistol back and pointed the gun at Catarino. I told him, AIt=s your turn,@ and Catarino raised his hands and said, AAll right.@ I clicked the gun, and it went off. . . .

Catarino is my friend, and it was an accident.

Appellant testified that after he took the empty round and the live round from his pocket he showed Cat the live round and AI turned around, and I opened the cylinder, and I thought I had the other one right here (indicating), and IBI don=t know. I switched them up.@ Appellant stated that A[s]omehow I accidentally put the wrong one in there. I turned back around. Had the cylinder open. All you could see is theByou could see the back of the shell. . . .@ Appellant had the live round and the empty round in the same hand, but he did not see which one he was loading into the cylinder. His testimony was that he accidentally put the live round in the gun.

On cross-examination appellant=s testimony was that he knew that a live round was heavier than an empty round and that a live round had a bullet on top of the shell.

Appellant knew that it was dangerous to play with guns, and he agreed that he should have taken some care before doing this trick.

II. Ineffective Assistance Of Counsel

By his first three points of error appellant complains that he received ineffective assistance of counsel. We analyze claims of ineffective assistance under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The accused must show: (1) that trial counsel's performance was not reasonably effective, falling below an objective standard of reasonableness under the prevailing professional norms; and (2) this deficient performance prejudiced his defense to the extent that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A Areasonable probability@ means Aa probability sufficient to undermine confidence in the outcome.@ Id.; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). A showing of deficiency requires a demonstration that trial counsel made errors so serious that he was not functioning as the Acounsel@ guaranteed a defendant under the Sixth Amendment. The prejudice element requires a showing that trial counsel's errors were so serious that they deprived the defendant of a fair trial; one whose result is reliable. Strickland, 466 U.S. at 687. The totality of the representation is evaluated from counsel's perspective at trial, not his isolated acts or omissions in hindsight. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The Areasonably effective assistance@ standard does not mean errorless counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Hernandez v. State, 799 S.W.2d 507, 508 (Tex. App.BCorpus Christi 1991, pet. ref'd). The appellant has the burden of overcoming this presumption by demonstrating his trial counsel's performance was unreasonable under prevailing professional norms, and that the challenged action was not sound trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

Mistake Of Fact Defense

First appellant complains that trial counsel was ineffective for failing to request an instruction on mistake of fact, regarding whether he knew the revolver was loaded. The general defense of mistake of fact, as codified in the penal code, provides: AIt is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense. Tex. Penal Code Ann. ' 8.02(a) (Vernon 1994) (Emphasis added). "Reasonable belief" is defined as a "belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex. Penal Code Ann. ' 1.07(a)(31) (Vernon 1994). The kind of culpability required for the commission of manslaughter is "recklessly" or "reckless." Tex. Penal Code Ann. ' 6.03(c) (Vernon 1994).

A defendant is entitled to an instruction on any defensive theory if the issue is raised by evidence at trial. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). If the evidence viewed in a light favorable to appellant does not establish a mistake of fact defense an instruction is not required. Id.

The case ofThibodeaux v. State, 726 S.W.2d 601 (Tex. App.BHouston [14th Dist.] 1987, pet. ref'd) helps resolve this issue. In Thibodeaux the accused shot the deceased twice. He testified that he did not know the gun was loaded and that he had removed a fully loaded clip from the gun. He was convicted of manslaughter and on appeal complained of the trial court=s failure to instruct the jury on mistake of fact. The appellate court held the accused did not form a reasonable belief that the gun was not loaded, stating: AWe find [the accused=s] failure to look in the chamber of the pistol unreasonable under the circumstances. His alleged mistake of fact would have been easily discernible by the simple empirical method of checking the chamber.@ Id. at 604.

Here appellant had a live round and an empty round in the same hand. He knew that there was a difference in weight between a live round and an empty round and that a live round has a bullet attached to it. After inserting the round into the cylinder he did not check to make sure that he had actually put the empty round rather than the live round in the cylinder. We cannot conclude under these circumstances that appellant=s belief, that the cylinder contained an empty round, was a reasonable belief or a belief which an ordinary and prudent man could have held in the same circumstances. An ordinary and prudent man who has a live round and an empty round in the same hand, who puts one of these rounds into the cylinder, and as a trick points the gun at another and pulls the trigger without first checking to ensure that he in fact put the empty round in the cylinder, cannot conceivably believe that the gun is incapable of firing. Appellant=s failure to look in the cylinder is unreasonable under the circumstances. Like the facts in Thibodeaux appellant=s alleged mistake of fact would have been easily discernible by the simple empirical method of checking the cylinder. We conclude that appellant did not form a reasonable belief that the gun was not loaded. We therefore hold that there was no evidence to support a mistake of fact instruction. See Thibodeaux, 726 S.W.2d at 604. Accordingly trial counsel's failure to request the instruction did not fall below an objective standard of reasonableness under the prevailing professional norms. Even if evidence did support a mistake of fact instruction appellant has not shown how trial counsel=s deficient performance prejudiced his defense to the extent that the trial=s result would have been different. We overrule point one.

Extraneous Offense

Second appellant complains that trial counsel was ineffective for failing to object to the introduction of an extraneous offense and for eliciting this same extraneous offense during appellant=s direct examination. Alfonso Gonzales testified for the State during the guilt/innocence phase. His testimony was that on the day of the shooting appellant had shown him two guns, the .38 caliber revolver used in the killing and a 9 mm. pistol. Trial counsel did not object to this testimony.

During appellant=s direct examination trial counsel asked appellant what he did when Cat arrived at his house. Appellant=s testimony was that he showed Cat the .38 revolver and the 9 mm. pistol.

The jury did not hear any evidence that the possession of the other pistol constituted another offense. Trial counsel=s failure to object to the testimony regarding the 9 mm. was not outside the wide range of professional competence. There is not a reasonable probability that, but for counsel=s failure to object, the result of the trial would have been different. See Strickland, 466 U.S. at 694. We overrule point two.

Limiting Instruction

Third appellant complains that trial counsel was ineffective for failing to request a limiting instruction, either to the jury in open court, or in the charge, regarding his prior felony convictions. Appellant testified on cross-examination that he had previous felony convictions for theft and unauthorized use of a motor vehicle. Trial counsel did not request an instruction to limit the jury=s consideration of this evidence.

Generally an instruction limiting a jury's consideration of certain evidence is not required when the evidence is admissible to prove a main fact in the case. Porter v. State, 709 S.W.2d 213, 215 (Tex. Crim. App. 1986). If, however, evidence is offered for a specific purpose the accused is entitled upon proper request to a charge limiting the jury's consideration of that evidence to the purpose for which it was offered. Id.

Here the State did not elicit this evidence to prove any main fact issue in the case; it was offered to impeach appellant's credibility. As such, a limiting instruction was appropriate. See id. However reference to the prior convictions was minimal, and the State=s attorney did not use this evidence to attack appellant=s credibility during final summation at the guilt/innocence phase.

There is a strong presumption that trial counsel's conduct was reasonable and constituted sound trial strategy. Strickland, 466 U.S. at 689. Here it is reasonable to believe that trial counsel did not want to draw this evidence to the jury=s attention by requesting a limiting instruction either in open court or in the charge. Moreover appellant has failed to show that there is a "reasonable probability" the result of the trial would have been different had trial counsel requested the limiting instruction. We overrule point three.

III. Sufficiency Of The Evidence

By points four and five appellant attacks the legal and factual sufficiency of the evidence to support his conviction. He argues there is not a scintilla of evidence to show that he knew he had accidentally placed a live round in the pistol; therefore, he could not have been aware of the risk surrounding his playing with the pistol or the results thereof. He argues that if guilty of any crime he is guilty only of criminally negligent homicide.

When examining the legal sufficiency of the evidence we apply the test set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In analyzing whether the evidence was factually sufficient to support the conviction we apply the test set out in Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

The court charged the jury on manslaughter and the lesser-included offense of criminally negligent homicide. The charge provided that the jury could convict appellant of manslaughter if they found, beyond a reasonable doubt, that he Adid recklessly cause the death of an individual, namely Catarino De La Fuente, III, by shooting him with a firearm while pointing the firearm at Catarino De La Fuente, III and pulling the trigger. . . .@ The charge stated that the jury could convict him of criminally negligent homicide if they found, beyond a reasonable doubt, that he Aby criminal negligence, cause[d] the death of an individual, Catarino De La Fuente, III, by shooting him with a firearm while knowingly pointing the firearm at Catarino De La Fuente, III, and pulling the trigger, yet not knowing whether the firearm was loaded. . . .@

The offense of involuntary manslaughter occurs when a person recklessly causes the death of an individual. Tex. Penal Code Ann. ' 19.04(a) (Vernon 1994). Criminally negligent homicide occurs when a person causes the death of an individual by criminal negligence. Tex. Penal Code Ann. ' 19.05(a) (Vernon 1994). The penal code defines the terms recklessness and criminal negligence as follows:

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Tex. Penal Code Ann. ' 6.03(c), (d) (Vernon 1994). Here the charge included both of these definitions.

The difference between involuntary manslaughter and criminally negligent homicide is the culpable mental state required for each offense: recklessness for the former and criminal negligence for the latter. Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985); Nash v. State, 664 S.W.2d 343, 344 (Tex. Crim. App. 1984). The court of criminal appeals has explained the difference between these culpable mental states as follows:

Reckless conduct as defined by V.T.C.A. Penal Code, Section 6.03(c) involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. Criminal negligence as defined by V.T.C.A. Penal Code, Section 6.03(d) involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof. At the heart of reckless conduct is conscious disregard of the risk created by the actor's conduct; the key to criminal negligence is found in the failure of the actor to perceive the risk. As defined, criminal negligence is a lesser culpable mental state than recklessness; mere proof of criminal negligence would not suffice to support a conviction for the offense of involuntary manslaughter.

Id. at 553 (Emphasis added, footnotes omitted).

The two culpable mental states both require evidence of a "substantial and unjustifiable risk that . . . the result will occur," and that the accused's failure to perceive or conscious disregard of that risk is a "gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Thomas, 699 S.W.2d at 849. But it is the failure to perceive the risk that distinguishes criminally negligent homicide from involuntary manslaughter. Nash, 664 S.W.2d at 345.

Analysis

Here the evidence showed that seconds before shooting Cat, appellant had a live round and an empty round in the same hand and that he did not check, either by visual inspection, or by feeling the tops of each cartridge, to be sure that he put the empty round into the cylinder. Appellant knew it was dangerous to play with guns and that a person should never point a gun at anyone as it could be loaded and kill someone. Despite this knowledge he pointed the gun at Cat and pulled the trigger without checking to make sure that he in fact had put the empty round into the cylinder. Accordingly the jury could conclude that this is evidence that appellant was Aaware of but consciously disregard[ed] a substantial and unjustifiable risk that the circumstances exist or the result will occur@ and that appellant=s Adisregard [of the risk] constitute[d] a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.@

Viewing the evidence in the light most favorable to the verdict we hold that a rational jury could have found the essential elements of manslaughter beyond a reasonable doubt. Further after examining all the evidence under the factual sufficiency standard we conclude the evidence is factually sufficient to support the conviction and that the verdict does not shock our conscience. We overrule points four and five.

We AFFIRM the trial court=s judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 25th day of April, 2002.