RICKY LEE RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 21, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00776-CR
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RICKY LEE RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 282nd District Court
Dallas County, Texas
Trial Court Cause No. F87-90085-NS
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O P I N I O N
Before Justices Howell, Rowe, and Kinkeade
Opinion By Justice Rowe
        Ricky Lee Rodriguez was convicted by a jury of the offense of murder. The jury assessed punishment at ninety-nine years' confinement and a $10,000 fine. Appellant raises two points of error, claiming that (1) the evidence was insufficient to support a conviction of murder because self-defense was established as a matter of law; and (2) the prosecutor committed reversible error during the jury argument when he commented on appellant's previous murder conviction, the sentence he received, and the sentence he served. We overrule both points and affirm the judgment of the trial court.
 
SUFFICIENCY OF THE EVIDENCE
        A person is justified in using deadly force in self-defense 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. Tex. Penal Code Ann. § 9.32 (Vernon Supp. 1989). Self-defense is a justification excluding criminal responsibility and as such is a defense under section 2.03 of the Penal Code. Tex. Penal Code Ann. § (Vernon 1974). Under section 2.03, the defendant has the initial burden of producing evidence to raise a defense, but the State then has the burden of persuasion to disprove that defense beyond a reasonable doubt. Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979) (en banc), cert. denied, 446 U.S. 944 (1980). In order for the appellate court to hold that, as a matter of law, a defendant in a homicide prosecution kills in self-defense, the uncontradicted evidence must present no issue for determination by the finder of facts. Whitfield v. State, 492 S.W.2d 502, 504 (Tex. Crim. App. 1973). The defendant's testimony alone, even if uncontradicted, does not conclusively prove self-defense. Cruz v. State, 629 S.W.2d 852, 860 (Tex. App.--Corpus Christi 1982, pet. ref'd).
        The uncontradicted testimony in this record establishes that appellant shot Arturo (Tuti) Roblez following this chain of events: Appellant's sister, Gloria Rodriguez, and her friend, Linda Rodriguez, went to a club intending to meet Tuti. When he did not appear, Gloria and Linda asked appellant for a ride to Tuti's house. After driving to Tuti's residence, appellant and Linda waited in the car while Gloria and Tuti talked on the porch of the house. Appellant was playing the car radio loudly. After fifteen to twenty minutes, appellant became impatient and yelled at Gloria to return to the car. When she did not return, appellant and Linda drove around the block. Appellant believed that his sister was drunk and did not want to leave her at Tuti's house. Upon returning to Tuti's house, Linda joined Gloria and Tuti on the porch. Appellant again yelled at Gloria to return to the car. Tuti yelled back at appellant to turn down the car radio. Tuti stepped off the porch and headed toward the car, holding up his hand and pointing toward appellant. Appellant fired several shots--at least two shots from inside the car. Appellant admits to shooting the deceased. The deceased had gunshot wounds on his chest and thigh and abrasions on his head and neck. The gunshot wound to the chest was fatal.
        Appellant contends that when coupled with his explanation of why he fired the shots, the uncontroverted evidence establishes that he acted in self-defense as a matter of law. We disagree. His contention overlooks significant conflicting testimony given by other witnesses.
         Although appellant testified that when Tuti stepped off the porch Linda yelled, "He's got a gun," Linda did not admit that she made this statement. Instead, she testified that Tuti had nothing in his hands. Also, the witnesses disputed appellant's testimony that after he got out of and walked around the car, he found Tuti hiding, that Tuti then jumped appellant, and that they fought with their fists until Tuti fell to the ground. Gloria testified that Tuti was on the ground at the time the appellant came around the car. Linda testified that Tuti fell down when appellant fired twice from inside the car. Another witness, Tracy Bennett, who was not present at the time, testified that appellant told her about the shooting incident at a Christmas party that they attended the next day. Appellant stated to her that Tuti fell to the ground after he fired the gun from the car and that he walked around the car to where Tuti was laying on the ground and beat him in the head with the gun.
        The record on the whole clearly establishes that the jury heard several different versions of the offense. Appellant testified that when he saw Tuti come toward him, he quickly picked up his gun from the car's armrest and fired several shots into the ground, thus implying that he only acted recklessly in causing Tuti's death. Appellant also testified to a threat he perceived as coming from Tuti which justified his taking action in self-defense. Appellant stated that he thought Tuti had something shiny in his hand and that someone had yelled that Tuti had a gun. Both Linda and Gloria testified, however, that Tuti had nothing in his hands. As for any threat from Tuti while appellant was outside the car, both Linda and Gloria testified that Tuti was lying on the ground after appellant fired the first shots from inside the car. This account given by these witnesses tends to negate appellant's need to defend himself. Further, these witnesses emphasized the intentional nature of the shootings by stating that appellant shot at Tuti two more times while outside the car.
        The testimony conflicting with appellant's account is sufficient to defeat appellant's claim that self-defense was established as a matter of law. See Williams v. State, 710 S.W.2d 828, 830 (Tex. App.--Dallas 1986, pet. ref'd). The standard of review for challenges to the insufficiency of evidence is whether, viewed in the light most favorable to the judgment, any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). The jury is the exclusive judge of facts proved, of the credibility of witnesses, and of the weight to be given in testimony. Bellah v. State, 653 S.W.2d 795, 796 (Tex. Crim. App. 1983). A jury is free to reject the defendant's testimony and accept the testimony of others. Nelson v. State, 573 S.W.2d 9, 12 (Tex. Crim. App. 1978).
        In Texas, a person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 1989). The jury was entitled to disbelieve appellant's testimony and to believe the testimony of the other witnesses. We overrule appellant's first point of error because when viewed in the light most favorable to the conviction there was evidence from which a rational trier of fact could find appellant guilty of murder beyond a reasonable doubt.
JURY ARGUMENT
        Appellant complains in his second point of error that the prosecutor committed reversible error during the jury argument when he commented upon appellant's previous murder conviction, the sentence he received, and the sentence actually served by appellant before being paroled. Appellant's complaint is based on the following argument made by the prosecutor to the jury during the punishment phase of the trial:
        Mr. Channell didn't get up here and say anything that Ricky's done for society. He said, that he hoped you would consider the full range of punishment and maybe Ricky could rehabilitate himself.
 
        You know, back in November of 1978, somebody probably said the same thing. Maybe he could rehabilitate himself. Well, we know that he was sentenced to seventy-five years on November the 1st, 1978. We know that he received parole in January of 1986. And, in less then [sic] two years after he was out on parole, he showed how rehabilitated he had become. He murdered Tootie [sic] Roblez.
        Appellant admitted to the 1978 murder conviction on direct examination during the guilt/innocence phase of trial. On cross-examination, the State elicited further testimony of the sentence received and the parole granted to appellant in 1986.
        The record reflects that appellant did not object to this jury argument at trial. In order to preserve a complaint for appellate review, a party must have registered a timely and specific objection. Armstrong v. State, 718 S.W.2d 686, 699 (Tex. Crim. App. 1985). In an effort to avoid this result, appellant contends that the prosecutor's argument was so prejudicial that a motion to disregard would not have cured the harm and that, therefore, no objection was necessary to preserve error, citing Clay v. State, 741 S.W.2d 209, 210 (Tex. App.--Dallas 1987, pet. ref'd). Appellant compares the present jury argument to the argument in Clay in which the prosecutor instructed the jury as to the existence and specific application of parole laws, stating that they should consider how the parole law would affect their verdict. Id. The court in Clay held that this argument by the prosecutor was so prejudicial that a motion to disregard would not have cured the harm and that, therefore, no objection was necessary to preserve error. Id. According to the court in Clay, the prejudice resulted from the prosecutor's misstatement of the law. In Texas, juries may not consider parole laws in assessing the defendant's punishment.
        The jury argument in the present case differs significantly from Clay. The prosecutor did not inform the jury of the parole law or specify how it would apply to appellant. Instead, the prosecutor simply restated the evidence of appellant's conviction, sentence, and date of parole that the jury had already heard during the guilt/innocence phase of the trial. The prosecutor did not urge the jury to consider the effect of parole laws on the sentence that they would assess, as the prosecutor did in Clay.
        Rather than misstating the law, the prosecutor here was making a proper plea for law enforcement in response to defense counsel's jury argument that the appellant had the ability to rehabilitate himself. Proper jury argument includes a plea for law enforcement. Good v. State, 723 S.W.2d 734, 735 (Tex. Crim. App. 1986). Furthermore, in most instances, a jury argument is appropriate when it is in answer to opposing counsel's argument. Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim. App. 1987). Accordingly, we conclude that the jury argument appellant complains of does not rise to the level of that in Clay and that an objection was necessary to preserve error. Because appellant did not preserve error, we overrule appellant's second point of error.
        The judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
880776F.UO5
 
 
File Date[11-20-89]
File Name[880776F]