JUAN GILBERTO HERNANDEZ GARCIA v. THE STATE OF TEXAS--Appeal from 103rd District Court of Cameron County

 NUMBER 13-03-00722-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

JUAN GILBERTO HERNANDEZ GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 103rd District Court of Cameron County, Texas.

 MEMORANDUM OPINION

 Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Juan Gilberto Hernandez Garcia, guilty of the offense of murder[1] and assessed his punishment at life imprisonment and a $10,000 fine. In four issues, appellant contends (1) the evidence is legally insufficient to support his conviction, (2) the evidence is factually insufficient to support his conviction, (3) he successfully argued the affirmative defense of self-defense, and (4) law enforcement officials violated the Vienna Convention on Consular Relations when they failed to advise him that he had the right to confer with the Mexican Consulate. We affirm.

A. Factual Background

On March 11, 2003, appellant went to Los Compadres Auto Sales, Inc., in Brownsville, Texas, to talk to Carlos Lerma about money he owed appellant for transporting drugs. When appellant arrived at the business, Miguel Lerma, Carlos=s father, was working in the small office located on the car lot. It is disputed whether Carlos was also present. Appellant entered the office where Miguel was working. Words were exchanged, and an argument ensued.

Appellant walked out of the office, and Miguel followed him. The two continued to argue. After Miguel raised his hand as if to slap appellant, appellant withdrew a .45 caliber handgun he was carrying in his pants and shot Miguel five times. Ivan Villarreal, Miguel=s employee, was working that afternoon and witnessed portions of the altercation. A few moments after he heard gunshots, he went out to find Miguel on the ground. Villarreal called 911, and, although paramedics responded quickly, Miguel died from the gunshot wounds.

After firing his handgun, appellant fled the scene. He attempted to escape north to Houston, but at the border checkpoint, U.S. Border Patrol agents caught appellant hiding in the trunk of his girlfriend=s car. Appellant was deported, but he soon returned to the United States and traveled to Houston where he was ultimately apprehended. Brownsville police officers went to Houston to serve appellant with an arrest warrant and to take a statement from him. Appellant waived his rights to counsel and silence and gave a statement to the officers.

B. Sufficiency of the Evidence to Establish Requisite Intent

In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his murder conviction.

1. Standard of Review

When we review the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In conducting this analysis, we may not re weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); Vela v. State, 771 S.W.2d 659, 660 (Tex. App.BCorpus Christi 1989, pet. ref'd).

We measure the legal sufficiency of the evidence 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). Such a charge would (1) accurately set out the law, (2) be authorized by the indictment, (3) not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and (4) adequately describe the particular offense for which the defendant was tried. Id. at 240; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

When we review the factual sufficiency of the evidence, we review all the evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson, 23 S.W.3d at 11. We are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of all the witnesses. Id. at 10 12. Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id. A clearly wrong and unjust finding of guilt is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@ Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).

2. Applicable Law

Under Texas law, a person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. ' 19.02(b) (Vernon 2003). Section 6.03 of the penal code defines Aintentionally@ and Aknowingly@ as follows:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Tex. Pen. Code Ann. ' 6.03(a), (b) (Vernon 2003). Intent is almost always proven by circumstantial evidence. Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (J. Meyers concurring) (citing Robles v. State, 664 S.W.2d 91, 95 (Tex. Crim. App. 1984)). If a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). In fact, when a deadly weapon is fired at close range and death results, the law presumes an intent to kill. Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981).

3. Analysis

In the first paragraph of count one of the indictment, the State alleged that appellant Aon or about the 11th day of March 2003, [did] then and there intentionally or knowingly cause the death of an individual, namely, Miguel Lerma, by shooting Miguel Lerma with a firearm.@ See Tex. Pen. Code. Ann. ' 19.02(b)(1) (Vernon 2003). Thus, the State had the burden of proving beyond a reasonable doubt that appellant intentionally and knowingly caused Miguel=s death by shooting him with a firearm.

In the second paragraph of count one of the indictment, the State alleged that appellant Adid then and there, with intent to cause serious bodily injury to an individual, namely, Miguel Lerma, commit an act clearly dangerous to human life that caused the death of said Miguel Lerma, by shooting Miguel Lerma with a firearm.@ See Tex. Pen. Code. Ann. ' 19.02(b)(2) (Vernon 2003). Thus, the State had the burden of proving beyond a reasonable doubt that appellant, with intent to cause serious bodily injury to Miguel, shot Miguel, causing his death.

Appellant asserts the State failed to prove all the elements of murder beyond a reasonable doubt because Athe [S]tate=s witnesses= testimony did not establish that Appellant acted with the requisite intent . . . [or] knowingly caused the death of the victim.@ Appellant admits that he shot Miguel many times, and the autopsy report shows that Miguel died of multiple gunshot wounds. However, appellant contends the State did not prove that he acted with the requisite intent. He claims that his affirmative defense of self-defense negated the required mens rea element.

The record shows appellant went to Miguel=s place of business with a loaded handgun. An eyewitness testified he saw (1) appellant and Miguel arguing, (2) Miguel raising his hand as if to slap appellant, and (3) appellant raising his shirt and grabbing the gun. Two witnesses heard shots fired. A detective testified that after investigating the scene, police found only one firearm B a handgun located in Miguel=s office desk, inside a closed bank bag, which had not been recently fired. The jury could reasonably infer that by shooting Miguel five times, appellant specifically intended to kill him.

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense of murder.[2] See Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). We hold the evidence is legally sufficient to support the jury's verdict. Appellant's first issue is overruled.

Furthermore, after viewing the evidence in a neutral light we conclude that the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond a reasonable doubt standard could not have been met. See Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004). We hold the evidence is factually sufficient to support the jury's verdict. Appellant's second issue is overruled.

C. Self-Defense

In his third issue, appellant contends the evidence is legally and factually insufficient to support the jury's rejection of his self defense claim.

1. Standard of Review

In reviewing a challenge to the legal sufficiency of the evidence to support the rejection of a self defense claim, we view the evidence in the light most favorable to the prosecution to determine if any rational trier of fact would have found beyond a reasonable doubt the essential elements of the offense and against the appellant's self defense claim. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). In reviewing a challenge to the factual sufficiency of the evidence to support the rejection of self defense, we review all the evidence in a neutral light and ask whether the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and whether the evidence supporting the defense is strong enough that the rejection of the claim does not meet the beyond the reasonable doubt standard. See Zuniga v. State, 144 S.W.3d 477, 484 85 (Tex. Crim. App. 2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). In conducting these reviews, we bear in mind that the fact finder may draw reasonable inferences, is the sole judge of the weight of the evidence and credibility of the witnesses, and may accept or reject any or all of the evidence produced by the parties. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Johnson v. State, 959 S.W.2d 284, 287 (Tex. App.BDallas 1997, pet. ref'd).

2. Applicable Law

Self-defense serves as a justification, excluding criminal responsibility, for otherwise criminal behavior. Tex. Pen. Code Ann. ' 9.31 (Vernon 2003). A person is justified in using deadly force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force, if a reasonable person in the actor's situation would not have retreated, and when and to the degree that he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force, or to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Tex. Pen. Code Ann. ' 9.32(a) (Vernon 2003).

3. Analysis

The record contains conflicting evidence regarding the circumstances and events surrounding Miguel=s death. The following evidence, relevant to appellant's claim of self defense, was presented to the jury.

a. Appellant's Testimony

Appellant testified that when he arrived at the car lot office, he was greeted by Miguel and Carlos. Miguel was sitting behind a desk, playing with a gun that was laying on the desktop. Carlos lifted his shirt to show appellant that he was also carrying a gun. Appellant became afraid, explained that he did not want the money he was owed any longer, and began backing out of the office. Miguel followed appellant outside, shouting at him, and calling him names. As appellant walked toward the front of his vehicle, Miguel walked toward the rear of the vehicle. Miguel told appellant that he knew too much, and then made a movement. Appellant reacted quickly and fired his gun at Miguel. While all of this was happening, Carlos was standing by the door of the office. After firing his weapon at Miguel, appellant pointed the gun at Carlos. Carlos dropped his gun, dropped to his knees, and asked appellant not to shoot him. Appellant told Carlos to leave quickly, and Carlos did as he was told. Appellant then drove away, threw his gun in a Aresaca,@[3] abandoned his car, and tried to elude authorities.

b. Manuel Lucio

Detective Manuel Lucio, one of the officers who first investigated the scene, performed the initial processing of the car lot. He noted the location of all pertinent evidence. Lucio testified he found a .380 caliber handgun in Miguel=s office, located inside the desk, inside a closed bank bag. After checking the handgun, Lucio opined that it had not been recently fired. Lucio also testified he found no other weapons on the car lot.

c. Reynaldo Gil

Reynaldo Gil was the first paramedic to arrive on the scene. He testified that, while securing the scene to ensure his safety, he found no weapon anywhere in the area around Miguel=s body.

d. Ivan Villarreal

Ivan Villarreal was employed by Miguel to wash the cars at the car lot. He testified that on the day in question, appellant drove up and asked for Carlos. Villarreal told him that Carlos was not present. Appellant went inside the office where Miguel was working. Standing nearby, Villarreal overheard Miguel and appellant arguing and saw the two men walk outside toward appellant=s car. Villarreal then went inside the office and could no longer hear the two men, but he could see them. Villarreal saw Miguel raise his hand as if to slap appellant. Villarreal A[t]hen saw [appellant] pick up his shirt, he took out a gun, and after that, you heard a shot.@ Appellant ran to his car and drove away, and Villarreal called an ambulance. While waiting for the paramedics beside Miguel, Villarreal testified that there was no gun anywhere around Miguel.

e. Marguerite Dewitt, M.D.

Marguerite Dewitt, M.D., the medical examiner who performed the autopsy, testified that her examination revealed Miguel Awas shot five times, at least five times.@ Dr. Dewitt determined that one shot was fired while Miguel was facing appellant. Miguel then turned to his right and began going down, with another shot being fired at Miguel=s back.

By returning a verdict of guilty, the jury necessarily resolved the conflicts between the evidence supporting guilt and the evidence undermining guilt in favor of the State. As the sole judge of the witnesses' credibility and weight to give the testimony, the jury was free to do that, and we will not disturb that finding. See Swearingen, 101 S.W.3d at 97; Johnson, 959 S.W.2d at 287. Viewing the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the jury's rejection of appellant's claim of self defense. Appellant admitted taking a loaded weapon to the car lot. No weapons were found in Miguel's hands or near his body. The record evidence shows Miguel was turning away from appellant, as appellant fired five bullets into Miguel.

We hold the jury could reasonably reject appellant's self defense claim since the evidence is legally and factually sufficient to support the jury's finding beyond a reasonable doubt that appellant acted with the requisite intent in causing Miguel=s death. See Gutierrez v. State, 85 S.W.3d 446, 450 51 (Tex. App.BAustin 2002, pet. ref'd) (holding the jury could reasonably reject defendant's self defense claim where defendant admitted stabbing victim and victim was not in possession of a weapon, had defensive wounds on hands, and stab wounds in his back). We overrule appellant's third issue.

D. Vienna Accords

In his fourth issue, appellant contends that law enforcement officials violated the Vienna Convention on Consular Relations when they failed to advise him that he had the right to confer with the Mexican Consulate.

1. Applicable Law

AThe Vienna Convention on Consular Relations grants a foreign national who has been arrested, imprisoned or taken into custody a right to contact his consulate and requires the arresting government authorities to inform the individual of this right >without delay.=@ Maldonado v. State, 998 S.W.2d 239, 246 47 (Tex. Crim. App. 1999) (citing Vienna Convention on Consular Relations, April 24, 1963, art. 36(1)(b), 21 U.S.T., 77, 100 01, 595 U.N.T.S. 261, 292 (ratified by the United States on Nov. 24, 1969)).

2. Analysis

The United States Court of Appeals for the 5th Circuit has held that Athe Vienna Convention does not confer individually enforceable rights.@ Cardenas v. Dretke, 405 F.3d 244, 253 (5th Cir. 2005); see Medellin v. Dretke, 371 F.3d 270, 279 (5th Cir. 2004) (Athe Vienna Convention, as interpreted by this Court in the past, does not confer an individually enforceable right@); United States v. Jimenez Nava, 243 F.3d 192, 198 (5th Cir. 2001) (AThe sum of [defendant=s] arguments fails to lead to an ineluctable conclusion that Article 36 creates judicially enforceable rights of consultation between a detained foreign national and his consular office. Thus, the presumption against such rights ought to be conclusive. If this conclusion suffers from any defect, however, it is beyond dispute B among the federal circuit courts B that analogizing the proffered right to consult with Miranda rights is utterly unfounded.@).

Similarly, the Texas Court of Criminal Appeals has held that the Vienna Convention does not create personal rights whose violation can be remedied in Texas courts by the suppression of evidence under article 38.23 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); Rocha v. State, 16 S.W.3d 1, 13-19 (Tex. Crim. App. 2000); Hinojosa v. State, 4 S.W.3d 240, 252 (Tex. Crim. App. 1999) (rejecting defendant=s claim that his death sentence violated the United Nations Charter and stating, AGenerally, individuals do not have standing to bring suit on an international treaty when sovereign nations are not involved in the dispute.@).

Accordingly, we conclude appellant does not have an enforceable right under the Vienna Convention. Appellant=s fourth issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 13th day of July, 2006.

[1] See Tex. Pen. Code Ann. ' 19.02 (Vernon 2003).

[2] The indictment charged appellant with murder under subsections 19.02(b)(1) and 19.02(b)(2) of the penal code. The jury returned a verdict finding appellant A>GUILTY= of Murder as charged in the indictment." When a general verdict is returned and the evidence is sufficient to support a finding under any of the paragraphs submitted, the verdict will be applied to the paragraph finding support in the facts. Manrique v. State, 994 S.W.2d 640, 642 (Tex. Crim. App. 1999).

[3] A canal-like offshoot of the Rio Grande River.