SERGIO HUERTA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 17, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00847-CR
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SERGIO HUERTA, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F06-62470-WI
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OPINION ON PETITION FOR DISCRETIONARY REVIEW
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        This Court's opinion of July 22, 2008 is withdrawn, and this opinion is substituted in its place. Tex. R. App. P. 50. Sergio Huerta was convicted of murder and sentenced by the jury to ninety-nine years in prison. In two issues, appellant claims the trial court erred by denying his request for jury instructions on self-defense and the lesser-included offense of manslaughter. We affirm the trial court's judgment.
 
Background
        On February 10, 2006, at approximately 6:30 p.m., appellant went to the Dallas Gentleman's Club accompanied by a friend, Miguel Alcocer. Both men carried guns for “protection.” After leaving the club, they noticed a crowd surrounding a white SUV in the parking lot. They looked inside the SUV and saw stereo equipment and other “electronic appliances.” They also noticed the vehicle's “rims.” Appellant asked Alcocer if he “wanted the rims” from the SUV. Alcocer said, “yeah.” Appellant then asked him if he “wanted to hit a lick,” i.e. rob, the owner of the SUV. Alcocer agreed to rob the owner of the SUV.
        Appellant and Alcocer followed the SUV for several miles after it left the parking lot of the Dallas Gentleman's Club. Alcocer was driving a white Cadillac. At the corner of Singleton and Sylvan, the SUV stopped at a red light. Appellant got out of the Cadillac and pulled a gun out of his waistband. He walked over to the SUV and fired his gun into the air. The driver of the SUV, Michael Berlanga, shot at appellant, wounding him in the jaw and the shoulder. Appellant then walked to the driver's side of the SUV and shot into the vehicle. When appellant ran out of bullets, Alcocer emptied his gun into the back of the SUV. Berlanga suffered two gunshot wounds to the head and later died at Methodist Hospital.
        While Alcocer was shooting at the SUV, appellant “jumped” into the passenger's seat of the Cadillac. Appellant was bleeding heavily. Appellant told Alcocer he had been shot and Alcocer immediately drove him to Methodist Hospital. After dropping appellant off at the emergency room, Alcocer drove the Cadillac to his parent's house in Oak Cliff and hid the guns. His sister drove him back to the hospital in another car.
        Appellant was subsequently indicted for capital murder by intentionally causing the death of Berlanga in the course of committing or attempting to commit a robbery. Appellant testified at trial that he shot into the SUV and killed Berlanga, but he claimed that it was Alcocer who came up with the idea of robbing Berlanga and that he never intended to go along with the robbery. Appellant argued that he only got out of the Cadillac at the stoplight to earn “street credit” and that he fired his gun into the air because he was merely trying to scare the owner of the SUV. He was surprised when Berlanga shot at him. Appellant said that he emptied his gun into the SUV because he was in fear for his life.
 
Discussion
        In his first issue, appellant argues that the trial court erred by denying his request for a self- defense instruction. According to the record, appellant timely objected to the charge and requested, on the record, an instruction on self-defense. The trial judge overruled the objection.
        In evaluating alleged jury charge error, we first determine whether error occurred and then determine whether the error caused sufficient harm to warrant reversal of the conviction. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994) (en banc). In cases where the defendant timely objected to the charge error, we reverse the conviction if the defendant suffered some actual harm as a result of the error. Id. at 732; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). In evaluating whether the defendant suffered some actual harm, we consider the entire jury charge as given, the evidence, counsel's arguments, and any other relevant information in the record. Almanza, 686 S.W.2d at 171.
        Under the version of the penal code that was in effect at the time of this offense, a person is justified in using force against another when and to the extent he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.
See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3598 (effective Sept. 1, 1994) (amended 2007) (current version at Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2007)). The use of force against another is not justified if the actor provoked the other's use or attempted use of unlawful force, unless (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor. See Tex. Penal Code Ann. § 9.31(b)(4) (Vernon Supp. 2007).
        Appellant argues that the State may have been entitled to a provocation instruction in response to a self-defense instruction, but he sees no reason why the doctrine of provocation should have precluded him from, as a matter of law, asserting self-defense. It is, however, well established that if an actor intending to commit an offense engages in conduct that escalates into violence and someone's death, in such situations the actor forfeits any right of self-defense if the actor's original intent was to commit a violent offense. See Westley v. State, 754 S.W.2d 224, 230 (Tex. Crim. App. 1988); Davis v. State, 597 S.W.2d 358, 360 (Tex. Crim. App. 1980); Dillard v. State, 931 S.W.2d 689, 697 (Tex. App.-Dallas 1996, pet. ref'd, untimely filed); see also Michael B. Charlton, 6 Texas Practice Guide: Criminal Law § 7.3, at 94 (2nd ed. 2001). In the present case, the record shows that appellant intended to engage in a violent offense. Therefore, the trial court properly refused to instruct the jury on self-defense.   See Footnote 1  We overrule appellant's first issue.
        In his second issue, appellant argues that the jury should have been instructed on the lesser- included offense of manslaughter. At trial, defense counsel claimed that appellant was entitled to the manslaughter instruction because “he never saw an individual” in the SUV--it had tinted windows--and he only fired his weapon “as a direct result of being shot.” Appellant also argues that he was entitled to the instruction because of the common law doctrine of “imperfect self-defense.”   See Footnote 2          If a defendant requests a lesser included offense instruction, it shall be included in the jury charge if (1) the requested charge is for a lesser included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005). Both prongs of the test must be met, regardless of whether such an instruction is requested by the defendant or by the State. Arevalo v. State, 943 S.W.2d 887, 890 (Tex. Crim. App. 1997). In this case, appellant was charged with capital murder, i.e., intentionally causing the death of the victim in the course of committing or attempting to commit robbery. Manslaughter is a lesser-included offense of capital murder. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000). There being no question that the first part of the test is satisfied, we therefore address the second part.
        We conclude the record in this case does not establish that appellant, if guilty, was guilty only of the lesser-included offense of manslaughter. A person commits the offense of manslaughter if he recklessly causes the death of an individual. Tex. Penal Code Ann. § 19.04(a) (Vernon 2003); Arnold v. State, 234 S.W.3d 664, 671 (Tex. App.-Houston [14th Dist.] 2007, no pet.). A person acts recklessly 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. Tex. Penal Code Ann. § 6.03(c) (Vernon 2003); Arnold, 234 S.W.3d at 671.
        To raise the issue of manslaughter, there must be evidence of a lack of intent to kill and evidence that appellant acted recklessly while ignoring a known risk. Arnold, 234 S.W.3d at 672. Appellant argued at trial that he did not intentionally kill the complainant. Appellant's denial that he intended to kill the complainant does not, of itself, however, raise the issue of manslaughter. Id. In determining whether the evidence supports a finding of recklessness, a statement that a defendant did not intend to kill the victim “cannot be plucked out of the record and examined in a vacuum.” Martinez v. State, 16 S.W.3d 845, 847 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd) (citing Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). In the absence of other evidence, moreover, the jury may presume intent to kill from the use of a deadly weapon. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993); Arnold, 234 S.W.3d at 672. Courts have usually found that a manslaughter instruction was required based on some evidence that the gun discharged accidentally or the defendant only intended to frighten the complainant. Arnold, 234 S.W.3d at 672. Appellant testified that he was only trying to frighten the complainant when he fired his gun into the air, but there is no evidence that he subsequently fired his gun into the SUV in order to frighten the complainant. Viewing the record as a whole, appellant's statements that he was only attempting to frighten the complainant when he fired into the air, and that he did not intend to kill him, do not constitute evidence upon which a jury could rationally find that appellant's actions were merely reckless. See Mathis v. State, 67 S.W.3d 918, 926 (Tex. Crim. App. 2002); Arnold, 234 S.W.3d at 672-73.
        Furthermore, one cannot accidentally or recklessly act in self-defense. See Martinez, 16 S.W.3d at 848; Avila v. State, 954 S.W.2d 830, 843 (Tex. App.-El Paso 1997, pet. ref'd); Johnson v. State, 915 S.W.2d 653, 659 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Appellant's testimony that he shot at the complainant in self-defense precludes an instruction on an accidental or reckless murder. See Martinez, 16 S.W.3d at 848. Thus, the trial court did not err in refusing appellant's requested charge on manslaughter. We overrule appellant's second issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070847PF.U05
 
Footnote 1 In reaching this conclusion, we believe that appellant's reliance on the court of criminal appeals' decision in Semaire v. State, 612 S.W.2d 528 (Tex. Crim. App. 1981), is misplaced. In Semaire, the court concluded that because Semaire claimed he had no intent to harm his wife when he broke through her front door and entered her apartment, he was entitled to an instruction on self-defense and the evidence created only a question for the jury on provocation. Id. at 530-31. In the present case, however, the evidence shows that appellant was not entitled to a self-defense instruction. See Westley, 754 S.W.2d at 230; Davis, 597 S.W.2d at 360; Dillard, 931 S.W.2d at 697.
Footnote 2 Under the common law doctrine of imperfect self-defense, if a defendant merely intended to assault the victim and ended up killing him because of escalating violence that he did not intend, the actor would be acquitted of murder and convicted of another offense, depending on his culpability. 6 Michael B. Charlton, Texas Practice Series: Texas Criminal Law § 7.3 (2d ed. 2001); see also Smith v. State, 965 S.W.2d 509, 512-13 (Tex. Crim. App. 1998). Because the evidence in this case established appellant's intent to kill, we need not address this issue.