JULIO CESAR ORTIZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed February 21, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01527-CR
............................
JULIO CESAR ORTIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F04-53702-L
.............................................................
OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        Julio Cesar Ortiz appeals his conviction for the murder of Fernando Sanchez. After the jury found appellant guilty, the trial court assessed punishment at confinement for life. In six issues, appellant complains (1) the evidence is legally and factually insufficient to overcome his claim of self-defense; (2) the jury erred by finding against him on the issue of sudden passion; and (3) his right to a unanimous verdict was violated under both the United States and Texas Constitutions. We overrule appellant's issues and affirm the trial court's judgment.
 
Background
        Oswaldo Morgando testified that the night Sanchez was killed, Sanchez and Morgando were riding motorcycles with a group of friends. They rode to Deep Ellum and were “sitting there to meet . . . people.” When the bars began to close, Morgando, Sanchez, and two other members of the group rode to a nearby convenience store to put on their gloves and helmets for the drive home. As they approached the store, Morgando saw a SUV behind him. He moved to the side and “the next thing [Morgando] knew the truck pulled around [Morgando] to the right and [Morgando] saw the back window come down.” Morgando “ducked down and hit the gas.” As he did so, he heard five or six shots fired, and Sanchez fell to the ground. The SUV speed away, turning right at the next corner. Sanchez died a short time later from four gunshot wounds to his leg and back. According to Morgando, he had never seen the SUV before, and there had not been an “incident or altercation” that night.
        Joseph Odom testified that he was in Deep Ellum with friends the night Sanchez was killed. Prior to the shooting, he noticed three or four people on motorcycles riding down the street. Odom was exiting his car when he heard gunfire. Odom ducked down and “when the gunfire was over, . . . [he] saw like a Suburban pull out and turn to the right.” According to Odom, there were no “words exchanged or anything” before the shooting.
        Frank Morales, appellant's friend, testified that he and appellant were in Morales's father's gray Expedition the night of the shooting. Morales was driving slowly down the street as he and appellant looked for girls to talk to. They drove by some motorcycles near a convenience store when appellant got into the back seat saying, “Let me talk to these girls.” Then, Morales heard gunfire and Morales “took off, because [he] didn't know what the situation was.” Morales testified that neither he nor appellant exchanged words with anybody on motorcycles next to them. As Morales drove away, appellant got back into the front seat. At that time, Morales saw a gun in appellant's hand. When Morales asked appellant what he was doing, appellant told Morales, “That was the guy that was trying to kill [me].” According to Morales, appellant had told him about a prior incident that frightened appellant, but appellant had not been threatened in any way that night.
        Appellant testified that about six or seven weeks before Sanchez was killed, appellant was leaving a club walking to his car. Three men, one of whom was Sanchez, attacked him without provocation and hit and kicked him. When appellant yelled for help, a nearby security guard sprayed mace and the three men ran away. Some time later, appellant was again in the parking lot of a nightclub when he heard a motorcycle approach. Appellant turned and saw Sanchez reach into his pocket, pull out a gun, and shoot at him. Appellant ran to his car and drove to a nearby convenience store to call the police. Appellant testified that, after these incidents, he began carrying a gun because he was afraid for his life. The night of the shooting, appellant and Morales were driving down the street in Deep Ellum when appellant saw a group of girls he wanted to talk to. Appellant “jumped in the backseat” and began calling to the girls trying to get their attention. At the same time, a group of motorcycles passed by. Sanchez was one of the riders in the group. As appellant made eye contact with Sanchez, Sanchez reached into this jacket, pulled out a gun, and pointed it at appellant. Appellant was “terrified” and pulled out his gun and started firing. According to appellant, he did not pull out his gun until he saw Sanchez pull out his gun and point it at appellant. And, he did not intend to kill Sanchez, he only intended to scare him.
        After hearing this and other evidence, the jury rejected appellant's claim of self-defense and found him guilty of murder. This appeal followed.
 
Self-Defense
        
        In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Appellant does not deny that he shot and killed Sanchez but maintains he acted in self-defense and that a rational jury could not have found against him on that issue. After reviewing the record, we cannot agree.         We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003). In contrast, when reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). Under either review, the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony and is free to accept or reject any or all of the evidence presented and to make reasonable inferences and deductions from the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996); Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd).
         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)(1), (2) (Vernon 2003). However, a person is generally justified in using deadly force against another if he reasonably believes that deadly force was necessary to protect himself against the other's use or attempted use of unlawful deadly force, and a reasonable person in the actor's situation would not have retreated. Tex. Pen. Code Ann. § 9.31(a), 9.32(a) (Vernon 2003). A defendant has the burden of producing some evidence to support a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the raised defense. Saxton, 804 S.W.2d at 913. The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. A determination of guilt by the jury implies a finding against the defensive theory. Id. at 914. Thus, to convict a defendant of murder after he has raised the issue of self-defense, the State is required to prove the elements of the offense beyond a reasonable doubt and to persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense. Id.
        Here, it is uncontroverted that appellant shot Sanchez four times in the leg and back, killing him. Eyewitness testimony indicated the shooting occurred without provocation. Appellant's version of the incident was that Sanchez had been violent towards appellant in the past and when appellant made eye contact with Sanchez the night of the shooting, Sanchez pulled a gun from his jacket and pointed it at appellant. Appellant then pulled out his gun and shot Sanchez only because appellant was afraid for his life. However, the only evidence that Sanchez was the aggressor on the day of the shooting is appellant's testimony. None of the other witnesses saw Sanchez with a gun and, although police arrived moments later and secured the scene, no gun was found. Nor was there evidence corroborating appellant's claim of Sanchez's past violence toward him. Both times appellant was alone and without witnesses. The security guard did not testify and although appellant claimed to have called the police the night Sanchez allegedly shot at appellant, the record does not contain a police report and appellant could not remember the names of the officers he spoke to. Finally, although Morales testified that after the shooting, appellant told Morales that Sanchez was the person who was trying to kill him, Morales's version of what appellant told him the night of the shooting became more beneficial to appellant over time. Specifically, in his first statement, Morales did not mention appellant telling him anything about Sanchez after the shooting. In his second statement, Morales said appellant told him Sanchez was “the guy that was trying to get me.” It was not until trial that Morales testified that appellant said Sanchez was the man who was trying to kill him.
        Viewing the evidence under the appropriate standards, we conclude a rational jury could have found beyond a reasonable doubt that appellant intentionally or knowingly caused Sanchez's death or that he intended to cause Sanchez serious bodily injury and committed an act clearly dangerous to human life that caused Sanchez's death and that he was not justified in doing so. Although appellant's testimony, and to some extent, Morales's testimony, supports appellant's version of the shooting, this evidence does not render the State's evidence insufficient. Rather, it raised an issue of credibility, an issue for the jury, not this Court, to determine. Thus, we conclude the evidence is legally and factually sufficient to support appellant's conviction for murder. We overrule appellant's first and second issues.
Sudden Passion
        In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to support the jury's negative finding that he caused Sanchez's death while acting under the immediate influence of sudden passion.
        During the punishment phase of a trial, a defendant may raise the issue of whether he caused a person's death under the immediate influence of sudden passion arising from an adequate cause. The defendant bears the burden of proving a sudden passion issue at punishment by a preponderance of the evidence. Tex. Pen. Code Ann. § 19.02 (d) (Vernon 2003). We review an appellant's sufficiency challenge to the jury's failure to find sudden passion using the same standard of review as a challenge to the rejection of an affirmative defense. See Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.-Dallas 1998, pet. ref'd). That standard requires us to consider all of the relevant evidence to determine whether the negative finding is so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. See id.
        In his third issue, appellant contends the evidence is factually insufficient to support the jury's determination against him on the sudden passion issue. Under this issue, appellant relies on the same evidence as he did on his self-defense issue-appellant's uncorroborated testimony that Sanchez made eye contact with appellant, reached into his jacket pocket, and then pulled out a gun pointing it at appellant. Although appellant's testimony is sufficient to raise the issue of sudden passion, the jury was free to disbelieve appellant's version of the shooting and believe the State's version that appellant shot an unarmed man without provocation from the backseat of his friend's car. After reviewing the evidence under the appropriate standard, we cannot conclude the jury's failure to find appellant acted under the immediate influence of sudden passion is so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. We overrule appellant's third issue.
        In his fourth issue, appellant asks us to overrule Naasz and find that a negative finding on sudden passion may be reviewed under the legal sufficiency standard set out in Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). That two-prong standard is used to review the legal sufficiency of a finding on which the complaining party had the burden of proof. See id. at 690. First, we examine the record for evidence that supports the finding, ignoring all contrary evidence. Id. Only if there is no evidence to support the finding do we then examine the entire record to determine whether the contrary proposition is established as a matter of law. Id.
        After reviewing all the evidence relevant to the issue, we have concluded the jury's failure to find appellant acted under the immediate influence of sudden passion is not so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. Because such a determination necessarily precludes a finding of legal insufficiency under the standard of review advocated by appellant, we decline appellant's invitation to revisit Naasz. We overrule appellant's fourth issue.
 
Unanimity
        In his fifth issue, appellant contends his right to a unanimous verdict was violated under the Texas Constitution. Relying on Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005), appellant maintains the charge submitted two offenses-violations of section 19.02(b)(1) and section 19.02(b)(2)-without jurors being required to unanimously agree as to one.
        In Ngo, the court of criminal appeals determined that, under the credit card abuse statute, Ngo was charged with three separate acts of credit card abuse. Id. at 744. Because the jury charge failed to instruct the jury that it must be unanimous in deciding which one (or more) of the three disjunctively submitted offenses it found appellant committed, the court of criminal appeals found Ngo was egregiously harmed. Id. at 749. Because appellant was charged with a single offense of murder, appellant's reliance on Ngo is misplaced.
        The Texas Constitution requires jury unanimity in felony cases, and, under our state statutes, unanimity is required in all criminal cases. Ngo, 175 S.W.3d at 745. Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo, 175 S.W.3d at 745. Thus, when the indictment alleges in a single count two separate offenses arising under the same penal code provision, the jury must agree on which offense it finds the defendant committed. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006). However, when the statute in question establishes different modes or means by which a single offense may be committed, unanimity is not required on the alternate means of commission. See id.
        The charge in this case allowed the jury to convict appellant if it found he intentionally or knowingly caused Sanchez's death, or if it found appellant intended to cause Sanchez serious bodily injury and committed an act clearly dangerous to human life that caused Sanchez's death. Whether appellant intentionally caused Sanchez's death or intended to cause Sanchez serious bodily injury and committed an act clearly dangerous to human life that caused Sanchez's death, only a single crime of murder was committed. Accordingly, the trial court did not err in submitting the alternate means of committing murder disjunctively. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (concluding aggravating elements of capital murder were alternative methods of committing same offense and trial court did not err in submitting the elements disjunctively). We overrule appellant's fifth issue.
        In his sixth issue, appellant contends the jury charge violated his due process rights by allowing a non-unanimous verdict. A state criminal defendant does not have a federal right to a unanimous jury verdict. Johnson v. Louisiana, 406 U.S. 356, 360 (1972). Federal constitutional due process considerations, however, limit the state's ability to define a crime so as to dispense with the requirement of jury unanimity on the alternate means or modes of committing it. Jefferson, 189 S.W.3d at 312. A due process review involves an inquiry into the fundamental fairness and rationality of the legislative choice, starting, however, with a presumption that the legislature has made its determination fairly and rationally. Id. This fundamental fairness and rationality test for unanimity challenges was established by the Supreme Court in Schad v. Arizona, 501 U.S. 633 (1991), and focuses on historical practice and the relative moral and conceptual equivalence of the alternate modes or means of committing the crime. Jefferson, 189 S.W.3d at 312.
        Our resolution of the due process analysis essentially requires a decision on whether this case falls within one of two scenarios described in Justice Scalia's concurring opinion in Schad. See Jefferson, 189 S.W.3d at 312. The first scenario involves “novel 'umbrella' crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.” See Schad, 501 U.S. at 650 (Scalia, J., concurring). The second is when “a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her.” See id.
        This case fits readily in the latter scenario. We believe that it would be “absurd” to find error in this case because six jurors may have believed appellant knowingly or intentionally shot and killed Sanchez, while six other jurors may have believed that he intended to cause Sanchez serious bodily injury and shot him four times, killing him. See Jefferson, 189 S.W.3d at 312 (finding it would be “absurd” to find error because six jurors may have believed appellant struck the fatal blow to the child while six other jurors may have believed appellant failed to pick up the phone and call 911 to seek medical help for the child.). Thus, we cannot conclude that appellant's due process right was violated in this case. We overrule appellant's sixth issue.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051527F.U05