Jarvis Wayne Moore v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

No. 04-97-00275-CR
Jarvis W. MOORE,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-0733
Honorable James Barlow, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: December 16, 1998

AFFIRMED

Appellant Jarvis Moore was convicted of murder in a bench trial. On appeal, appellant contends the evidence was factually and legally insufficient to support his conviction. He also argues that the trial court improperly aided the State in presenting its case. Because we find these points of error are without merit, we affirm the trial court's judgment.

Factual and Procedural Background

On the night of the murder, Josie Garza, her daughter, Debra Garza, and Robert Carranza were all sitting on Josie's front porch. Moore and his wife, Dorothy Williams, drove up to Josie's house. Moore and Williams had bought cocaine from Josie and believed that they had been sold "bad" drugs. They told Josie that they either wanted more drugs or a refund. An argument ensued.

What happened at this point is disputed. Moore claims that Josie's brother, Albino Garza, who had been drinking, walked to the porch to determine what the argument was about. When Josie indicated to her brother that there was a problem, Albino walked over to the garage, crouched down, and when he returned, he walked quickly toward Williams. Moore believed that he saw Albino pulling out a gun. Moore claims that he then shot Albino in self-defense as he feared for both his life and his wife's.

According to the State, however, Albino went over to the garage merely to relieve himself. When Albino returned, he was struggling with his zipper and did not have a gun, nor did he say anything threatening to Moore. Moore was becoming aggressive and agitated because he could not get his money back or any more drugs. As Albino walked towards Moore and Williams, Moore walked around the front of his car, confronted Albino, and shot him in the leg and the stomach. Williams and Moore got into their car and drove away. At the time of the shooting, Josie, Albino, Williams, and Moore were all under the influence of drugs or alcohol.

Trial Court Bias

In his first point of error, Moore contends that the trial court showed bias for the State when the court remarked that the State had not even "made the guy dead yet." Moore contends that the following exchange, which took place after the last witness finished testifying, aided the State in proving its case:

THE COURT: Well, what about -- you got some form there?

DEFENSE COUNSEL: No. I was just saying I think we're -- we're looking at -- if you are looking timewise, I think we're looking at no more than two -- two hours.

THE COURT: No more? All right. I was curious to know because, you know, they haven't -- they haven't made him dead yet. There are no --

THE STATE: No, we -- we --

THE COURT: -- death reports or -- you know.

Moore asserts that under the Code of Judicial Conduct, the trial judge failed to perform his duties without prejudice or bias. See Tex. Code Jud. Conduct, Canon 3 pt. B, reprinted in Tex. Gov't Code Ann. tit.2 , subtit. G app. B (Vernon 1998).

Every person accused of a crime is guaranteed a fair trial. See Henley v. State, 576 S.W.2d 66, 69 (Tex. Crim. App. 1978); Bethany v. State, 814 S.W.2d 455, 456 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). The law requires that judges remain impartial and that they not take sides or assist any party in our adversarial system of justice. Silva v. State, 635 S.W.2d 775, 778 (Tex. App.--Corpus Christi 1982, pet ref'd). It is essential to this system that a judge not assume the position of a litigant in the trial of a case. Burks v. State, 693 S.W.2d 747, 750 (Tex. App.--Houston [14th Dist.] 1985, pet ref'd). Nevertheless, we believe that the trial court's comment was neither improper nor a violation of Moore's right to a fair trial.

In Silva v. State, the trial court suggested that the prosecutor put on additional witnesses to remove another reasonable hypothesis from the case. See Silva, 635 S.W.2d at 778. The district attorney then called in witnesses who had not been previously announced or subpoenaed. Id. While the appellate court noted that these types of remarks reflect unfavorably upon our judicial system and are not condoned by the court, the court refused to reverse because the statements were not made in the presence of the jury and arguably the judge was simply managing the trial. Id. Additionally, the court noted that the appellant did not show that the State called any witnesses which it would not otherwise have called. Id.

In Burke v. State, the defendant was convicted on stipulated evidence of carrying a prohibited weapon. Burke, 693 S.W.2d at 750. The trial court instructed the State as to what stipulations were needed to support a conviction and questioned witnesses of its own accord. Id. The appellate court noted that "this was a trial before the court and therefore, we must look at the complained of error in light of the general presumption that the trial court does not commit trial error in such proceedings." Id. Moreover, the court noted that Burke made no timely objection to the trial judge's actions. Id. The appellate court held that the trial court's conduct did not reach a level of error worthy of reversal. Id.

The record in the present case reveals that the trial court's comment indicating that the State should introduce evidence to prove that Albino was dead was not an effort by the trial judge to assist the State in meeting its burden, but only an effort to move the case along. This suggestion in no way prejudiced the appellant as he does not dispute that he shot and killed Albino, but only that it was done in self-defense. In fact, Moore did not object to the autopsy's introduction and relied on the autopsy to prove self-defense. Additionally, since this was a bench trial, there is no concern about prejudicing a jury. Consequently, even if this comment was somehow improper, there was no prejudice to Moore. Nor do we find that this comment was indicative of some bias that the judge held for the State or that the trial court had already made up its mind about the case. Moore did not show that the State introduced any evidence that it would not have introduced otherwise. Moore's first point of error is overruled.

Factual and Legal Sufficiency

In his second, third, and fourth points of error, Moore contends that his conviction cannot stand because the State's evidence was factually or legally insufficient to refute his claim of self-defense or defense of a third person. Specifically, in the fourth point of error, Moore argues that the court erred by ignoring or not giving enough weight to the autopsy report which supported Moore's version of events.

A challenge to the factual sufficiency is reviewed by considering all the evidence without the prism of "in the light most favorable to the prosecution." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Reaves v. State, 970 S.W.2d 111, 116 (Tex. App.--Dallas 1998, no pet). In making this determination, we will consider all of the evidence in the record that is probative of self-defense and decide if the finding of guilt and the implied finding against self-defense are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.(1) Reaves, 970 S.W.2d at 116.

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 deadly force and a reasonable person in the actor's position would not have retreated.(2) Tex. Pen. Code Ann. 9.31-.32 (Vernon 1994 & Supp. 1998).(3) When the defendant raises the issue of self-defense, the State has the burden of persuasion to disprove self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). This is not a burden of production which would require the State to refute the self-defense claim. Id. The question becomes whether the State proved beyond a reasonable doubt the offense of murder. See id. A person commits 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 1994). Self-defense is a fact issue to be determined by the fact-finder, in this case, the judge. See Saxton, 804 S.W.2d at 913. As the fact-finder, the judge is entitled to accept or reject the testimony of any of the witnesses. See Reaves, 970 S.W.2d at 117.

Review of the record reveals that the testimony of several witnesses supported the trial court's conviction. Josie Garza, Robert Carranza, LaToya Johnson, and Debra Garza all testified that Albino was not acting aggressively and that he did not threaten Moore. They reported that Albino did not appear to have a gun, and in fact he did not have one.

Evidence that supports Moore's self-defense claim included Moore and Williams' testimony. Williams testified that Albino walked "full speed" toward the car where she and Moore were waiting, causing her to fear for her life. Moore testified that Albino rushed towards them yelling obscenities. Both Moore and Williams believed that Albino reached in his pants to pull out a gun. Moore stated that had he not shot Albino, he believed Albino would have shot him or Williams.

The autopsy report reflected that Albino received two gunshots: one to the left side of the abdomen and one to the left thigh. There was no evidence of close range firing. Moore contends that findings in the autopsy contradict testimony presented by the State. Several of the State's witnesses testified that Moore kicked Albino right before he shot him and when Moore shot Albino he was standing approximately two feet away from him. Moore notes that the autopsy revealed no bruising by the alleged "kick," and the finding of no close range firing indicates that he could not have been that close to Albino when he was shot. Moore concludes that the trial judge must have "ignored" the autopsy.

However, the trial court did not have to ignore the autopsy to reach its conclusion. First, it is not clear from the record that the kick was the type that would have left a bruise. Nor is it clear how close "close range firing" must be to leave evidence. If Moore was approximately a couple of feet away from Albino when he shot him, there is no evidence that a finding of no close range firing excludes this distance. Consequently, the autopsy report does not conclusively support Moore's testimony or contradict the testimony of the State's witnesses.

The trial court could resolve the case only by choosing between the differing versions of events. Reaves, 970 S.W.2d at 117. The trial court was free to reject any of the witnesses' testimony or evidence and was allowed to find credible all, some, or none of the evidence. See id. Our role at the appellate level is not to "find" facts; rather, we simply must determine if the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. See id. at 117-18. The testimony of the State's witnesses provided factually sufficient evidence to establish beyond a reasonable doubt that Moore committed murder. Reviewing all the evidence, we cannot say the trial court's rejection of Moore's self-defense theory is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust.

Similarly, we find the evidence was also legally sufficient. To determine legal sufficiency, "we view the evidence in the light most favorable to the verdict to see if any rational trier of fact could have found (1) the essential elements of murder beyond a reasonable doubt and (2) against appellant on the self-defense issue beyond a reasonable doubt." Juarez v. State, 961 S.W.2d 378, 383 (Tex. App.--Houston [1st Dist.] 1997, pet ref'd). See also Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (adding that the court does not look to whether the State presented evidence which refuted the self-defense testimony). The evidence indicates that a rational trier of fact could have found against Moore on the issue of self-defense beyond a reasonable doubt. Moore's second, third, and fourth points of error are overruled.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. We follow the standard recently established by Reaves v. State, 970 S.W.2d 111 (Tex. App.--Dallas 1998, no pet.). The court combined the standards set out in Clewis and Saxton to review factual sufficiency of a self-defense issue where the State has the burden of proof. See id. at 116 (citing Clewis, 922 S.W.2d at 129 and Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)).

2. The use of deadly force in self-defense is stated in section 9.32 and reads in pertinent part:

A person is justified in using force or deadly force against another: (1) if he would be justified in using force against the other under 9.31 [reasonable belief that the force is immediately necessary to protect himself against another's use of force]; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to protect himself against the other's use or attempted use of unlawful deadly force; or (B) 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 (Vernon Supp. 1998).

3. Moore also introduced evidence that his actions were justified as defense of a third person. Defense of a third person is defined under section 9.33:

A person is justified in using force or deadly force against another to protect a third person if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonable believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Tex. Pen. Code Ann. 9.33 (Vernon 1994).

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