Juan Manuel Fonseca v. The State of Texas--Appeal from 63rd Judicial District Court of Val Verde County

MEMORANDUM OPINION
No. 04-03-00398-CR
Juan Manuel FONSECA,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 9374
Honorable Thomas F. Lee, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 10, 2004

AFFIRMED

Juan Manuel Fonseca was found guilty of manslaughter and was sentenced to twenty years imprisonment and a fine of $9,500. Fonseca brings three issues on appeal, arguing that (1) his conviction should be reversed because the State failed to preserve exculpatory evidence, (2) the trial court erred in denying his request for a spoliation instruction, and (3) the trial court erred in denying his request for a "right to arm" instruction. We overrule all issues and affirm the judgment of the trial court.

Background

On March 22, 2002, Appellant Juan Manuel Fonseca stabbed Martin Aguilera. Aguilera later died. Fonseca claimed he had stabbed Aguilera in self defense.

Fonseca and Luz Coronado had dated on and off for four years. Fonseca, Coronado, and her son, Rene Lopez, had been staying in an apartment at the Del Rio Motor Lodge. At trial, Coronado testified to the following: In the weeks before March 22, 2002, she had told Fonseca to leave the apartment. On March 22, 2002, Coronado came home to the apartment in the early hours with her date, Martin Aguilera. The door to the apartment was broken. When Coronado walked in and turned on the lights, she saw Fonseca on the bed. Fonseca got up from the bed and walked to the kitchen. Coronado and Aguilera both told Fonseca to leave. Coronado walked over to the telephone in the living room. Fonseca pushed Coronado against the wall, grabbed the telephone from her hands, and threw it into the bedroom. Fonseca turned and walked into the bedroom. Coronado and Aguilera followed him. Fonseca pulled something out of his shorts. Aguilera and Fonseca began arguing and then fighting. The two men fell to the ground. Aguilera was on top of Fonseca. Fonseca then pulled a kitchen knife out of his back pocket and stabbed Aguilera.

At trial, Fonseca testified to a different version of events. According to Fonseca, Coronado had asked him two days before the incident to leave. Because Fonseca would not have his paycheck until that Friday, Coronado agreed to let him stay until Friday so that he would have money to rent another apartment. When Fonseca arrived at the apartment, there was no one home. Later, Rene, Coronado's son, came home, but then left to go to a friend's house. Fonseca went to sleep in the bed. When he woke up around midnight, Rene was home asleep. Fonseca went back to bed and was again awakened around 2:00 a.m. As he was trying to go back to sleep, he heard Coronado and Aguilera enter the apartment. Fonseca quickly put on his pants. Aguilera came into the bedroom and told Fonseca to leave. Fonseca went over to the refrigerator to get a glass of water. He saw a "small knife" near the stove and grabbed it. He walked back into the bedroom. Coronado was walking behind him. She grabbed Fonseca and slapped him. Aguilera came over to Fonseca, pushed Coronado aside, and said, "Let me have him." Aguilera then hit him. Fonseca hit him back. Aguilera grabbed Fonseca in a headlock and stuck his fingers in Fonseca's eyes. Both men fell down on the bed. Aguilera, with Fonseca in a headlock, tried to gouge out Fonseca's eyes. Fonseca, remembering about the knife, stabbed Aguilera on his left side. Coronado told Fonseca to leave. After Fonseca put on a pair of boots and a jacket, he left.

Fonseca was tried for murder and the lesser included offense, manslaughter. Fonseca admitted that he stabbed Aguilera, but claimed he did so in self defense. Although the jury found Fonseca not guilty of murder, it did find him guilty of manslaughter. Fonseca appeals.

Duty to Preserve Evidence

In his first issue, Fonseca argues that the State violated its duty to preserve exculpatory evidence. Specifically, Fonseca complains of a missing film roll containing undeveloped photographs of the injuries Aguilera caused to his face. These photographs were taken on the same day as the incident. Eduardo Cortez of the Del Rio Police Department testified that he took photographs of Fonseca's face, completed an evidence receipt, and turned in the roll of film to the evidence section. However, when he later went to retrieve the film, it was missing.

Any federal constitutional duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect's defense. California v. Trombetta, 467 U.S. 479, 488 (1984). "To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489 (citation omitted). "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

Here, Fonseca was able to obtain comparable evidence by other reasonably available means. At trial, several witnesses testified about Fonseca's facial injuries. Olivia Garcia, Fonseca's former aunt by marriage, testified that on the morning of March 22nd, Fonseca's eyes were "real swollen, like they were going to pop out of his eye sockets." When asked what color his eyes were, Garcia replied, "They were real red. He had blood - it was blood that he had in his eyes. You know, tears were streaming out of his eyes, tears with blood, and they were all bloodied." Dora Davila, Garcia's sister, testified that on the morning of March 22nd, Garcia's face "was all swollen, his eyes were bulging, kind of outside, very red and watery. He could hardly see, and he looked like he was in a lot of pain." Officer Gabriel Villanueva testified that "[o]ne of the things that stood out the most [about Fonseca's face] was his eyes were both really, really red." Dr. Gary Lockett, Fonseca's treating physician on March 22nd, testified that he treated Fonseca for injuries to his eyes:

[Fonseca] had some pretty obvious eye damage at the time . . . He had a lot of hemorrhaging in the eyes, and he actually had some tears of the conjunctiva. I mean, he was - it looked pretty impressive. . . . He had a lot of hemorrhaging in the eyes. From what I could see . . . he had some swelling in both eyes, especially on the right eye, if I remember correct[ly]. He had some pretty obvious conjunctival tears, you know, where, you know, it was split apart and it would fold kind of like a window shade in a sense. . . . [His eyes] were pretty well swollen, I think significantly so, at the time. He could open them for us to see it, and he had some visual capacity with it, but there was a lot of damage there. There was a lot of damage.

Given the testimony of Olivia Garcia, Dora Davila, Officer Gabriel Villanueva, and Dr. Gary Lockett, Fonseca was able to obtain comparable evidence by other reasonably available means. We, therefore, overrule Fonseca's first issue.

Spoliation Instruction

In his second issue, Fonseca argues that the trial court erred in refusing his request for a spoliation instruction. Fonseca has not shown that a spoliation instruction applies in criminal cases. For support, he cites civil cases and one criminal case, Pachecano v. State, 881 S.W.2d 537 (Tex. App.--Fort Worth 1994, no pet.). Pachecano, however, did not hold that a spoliation instruction applies in criminal cases; it held that even if a spoliation instruction was applicable, there was no evidence to support such an instruction. Id. at 543. Fonseca has, therefore, cited no authority, and we are aware of none, which supports his contention that a spoliation instruction should apply in a criminal context. We, therefore, overrule his second issue.

Right to Arm Instruction

In his third and final issue, Fonseca argues that the trial court erred in refusing his request to include a "right to arm" instruction in the jury charge. The trial court instructed the jury on self-defense; however, it also instructed the jury that if it found beyond a reasonable doubt that Fonseca "provoked the difficulty that resulted in the death of the deceased, and by his own wrongful act, if any, produced a necessity for taking the life of the deceased," it should find against Fonseca's self-defense claim. According to Fonseca, because the trial court instructed the jury on "provoking the difficulty," it should have also instructed the jury on his "right to arm."

In Young v. State, 530 S.W.2d 120, 122 (Tex. Crim. App. 1975), the court of criminal appeals held that when there is a charge on "provoking the difficulty," the trial court must give a charge on the defendant's right to bear arms to the scene of the offense and seek an explanation, if raised by the evidence. See also Tijerina v. State, 921 S.W.2d 287, 290 (Tex. App.--Corpus Christi 1996, no pet.). Young supports Fonseca's position that he was entitled to a "right to arm" instruction if it was raised by the evidence.

Since Young, however, the court of criminal appeals decided Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998). In Giesberg, the court of criminal appeals held that any defensive theory not recognized or specifically labeled either a defense or an affirmative defense by the legislature does not warrant a separate instruction. Id. at 250. Relying on this holding, the El Paso Court of Appeals held that a defendant is no longer entitled to a "right to arm" instruction:

The Texas Penal Code recognizes the general defenses of insanity, mistake of fact, mistake of law, intoxication, duress, entrapment, and age affecting criminal responsibility. Chapter Nine outlines justifications absolving a defendant of criminal responsibility, such as public duty, necessity, self-defense, and defense of third persons. [The appellant] has not shown, nor do we find, that "right to arms," "right to shoot to scare," and "right to pursue," are defenses recognized by the Texas Penal Code. Accordingly, under Giesberg, [the appellant] was not entitled to such instructions.

Castaneda v. State, 28 S.W.3d 216, 226 (Tex. App.--El Paso 2000, pet. ref'd) (citations omitted).

We agree with the El Paso Court of Appeals and hold that pursuant to Giesberg, Fonseca was not entitled to a "right to arm" instruction.

Moreover, even if Geisberg did not apply, the evidence presented in this case did not support a "right to arm" instruction. There is no evidence that Fonseca sought out Aguilera for the purpose of seeking an explanation from Aguilera or that he armed himself for the purpose of seeking an explanation.

We overrule Fonseca's final issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

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