Billy Joe Perez v. The State of Texas--Appeal from County Court at Law of Medina County

MEMORANDUM OPINION

No. 04-03-00789-CR

Billy Joe PEREZ,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law, Medina County, Texas

Trial Court No. 20143

Honorable Vivian Torres, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice, concurring in judgment only

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 13, 2005

AFFIRMED

Billy Joe Perez appeals the trial court s judgment convicting him of assault causing bodily injury to Patricia Ann ( Cookie ) Carpenter by punching her in the head and face, ordering him to pay restitution in lieu of a fine, and sentencing him to one year s confinement. We affirm the trial court s judgment.

1. Perez first argues the trial court erred in submitting a jury charge that contained an instruction, but not an application paragraph, on defense of a third person because this issue was raised by the evidence. We agree this omission was error. See Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998) (holding [t]he court of appeals properly concluded that the failure to apply the law of self-defense to the facts of the case and to instruct the jury to acquit if they held a reasonable doubt on self-defense was error ); see id. at 417 ( If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted ) (quoting Tex. Pen. Code Ann. 2.03(d) (Vernon 1994)). However, because Perez s trial counsel failed to request this application paragraph and failed to object to its absence, Perez will obtain a reversal only if the error is so egregious and created such harm that he has not had a fair and impartial trial -- in short egregious harm. Id. (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). [E]rrors which result in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (quoting Almanza, 686 S.W.2d at 172).

In deciding whether there is egregious harm, we may consider the following four factors: 1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and, 4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S.W.2d at 171. We are to be guided by the following:

But in determining whether the error is material ... we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What was the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State s case when considered in connection with the other testimony in the case, as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State s theory? These are all important matters to be considered in passing upon the [degree of harm] in the omission or error ....

Almanza, 686 S.W.2d at 173-74 (quoting Davis v. State, 28 Tex. Ct. App. 542, 13 S.W. 994, 995 (1890), cert. dism d, 139 U.S. 651, 11 S. Ct. 675, 35 L. Ed. 300 (1891)).

The Court s Charge The court s charge included an instruction that presented the jury with the theories of self-defense and defense of a third person:

You are instructed that under our law a person is justified in using force against another to protect a third person if, under the circumstances, as he reasonably believes them to be, such person would be justified in using force to protect himself against the unlawful force of another which he reasonably believes to be threatening the third person he seeks to protect, and he reasonably believes that his intervention is immediately necessary to protect the third person, except that force is not justified in response to verbal provocation alone.

A person is justified in using force to protect himself 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 unlawful force.

When a person is attacked or an attempt is made to attack such person, with unlawful force, and there is created in the mind of such person a reasonable expectation or fear of some bodily injury, then the law excuses or justifies such person in resorting to force to the degree that he reasonably believes is immediately necessary, viewed from the standpoint at the time, to protect himself from attack or attempted attack.

A person is under no obligation to retreat to avoid the necessity of repelling or defending, with force less than deadly force, against an attack or attempted attack.

See Degrate v. State, 86 S.W.3d 751, 754 (Tex. App. Waco 2002, pet. ref d) (holding the trial court s failure to include defensive theory that victim caused her own death in application paragraph was not egregiously harmful and noting the defensive theory was presented to the jury by the instruction in the charge ).

State of the Evidence Perez s girlfriend at the time of the assault, Arlene Torens, testified that she arrived at the Horseshoe Inn at approximately 10:30 or 11:00 p.m. with Perez in his dark green eighteen wheeler truck. As she and Perez were leaving, shortly before closing time, Cookie Carpenter approached her and said Hey, you got an f ing problem with me? Torens responded No. Do you have an f ing problem with me? At that point, according to Torens, Cookie rushed [her], came towards [her]. Torens put [her] arms up to defend [her]self and saw two other girls coming out of the bar. Then, according to Torens, Cookie s friend, Cherie Frick, hit Torens in the face. According to Torens, she not Perez then hit Cookie and kicked her in the head to defend herself; and Perez grabbed Frick and threw her off Torens. Perez then came to Torens s defense and accidentally ran into [Cookie], knocking her to the ground. Torens testified four girls were beating on [her] ; Torens was just minding [her] own business and they all jumped on [her]. On cross, when asked whether there was a lot of fighting after she kicked Cookie in the head, Torens testified: Just - just those individuals there were involved, and then there was a couple of other gentlemen that were holding Billy back so he couldn t come help me, I found out later, because I was like, Where were you?

On the other hand, three eyewitness participants testified that Perez delivered the first blow, punching Cookie in the head and face with his fists. Frick testified that, before any other blows were struck, she saw Perez jump on Cookie Carpenter and hit her in the face at least three times; he then knocked Carpenter to the ground and continued punching her, while Torens kept egging it on, kept egging it on, kept egging him on also. According to Frick, after Torens swung at her, she tried to defend herself. After Frick knocked Torens out, Perez attacked [her], pushed [her], backed [her] into the truck, knocked [her] down. According to Frick, Cookie did not provoke Perez into striking her other than arguing with Torens.

Cookie s sister, Bobbie Jane Evans, testified that, as they were leaving, Perez jumped up in [her] sister s face, ... and [her] sister told him to get out of her face, that she didn t have no problem with him, that she had a problem with his girlfriend. Perez then hit Cookie on her head and around her face and slung her against the pickup. Evans then went back in the bar to solicit help, because Perez was killing her sister.

Cookie herself testified that, as she was leaving the bar, she asked Torens if she had a problem. Torens did not answer. And the next thing Cookie knew, she was attacked by the man with Torens. Although she did not recognize Perez at trial as the man who assaulted her, she testified she was struck by the man standing next to Torens; and Torens testified she left the bar with Perez.

Arguments of Counsel Both the State and Perez mentioned defense of third persons in their closing arguments. See Degrate, 86 S.W.3d at 754 (holding the trial court s failure to include defensive theory that victim caused her own death in application paragraph was not egregiously harmful and noting the defensive theory was ... argued to the jury by both parties ). In his closing argument, Perez s trial counsel only mentioned defense of third persons twice, once at the very beginning of his argument and again near its end:

The Judge also is going to give you the law regarding the defense of third person, something we didn t talk about before. That instruction is given only when there s evidence to support it, so we didn t talk about it in the jury selection, but you ll have that law in there and you can read that law so you ll know what that is.

. . .

So I submit to you they didn t prove their case beyond a reasonable doubt and, therefore, you should come back with a finding -- whether it s based on your belief that it happened, and yet it was self-defense, whether you just believe it wasn t proven beyond a reasonable doubt, you should come back with a finding that says not guilty, because not guilty merely states that it wasn t proven beyond a reasonable doubt. Not guilty states that it was because of defense of a third person, a separate application paragraph. Read the paragraphs, either one. Ladies and gentlemen, I would submit to you it wasn t proved beyond a reasonable doubt and, therefore, your decision should be to find Billy Perez not guilty.

Between these two references, Perez s trial counsel focused on inconsistencies in the testimony and the State s burden to prove the elements of the charged offense beyond a reasonable doubt. The State countered that, although Torens s testimony may have raised the issue of self-defense, her testimony was not credible. In this context, the State alluded to defense of a third person:

If I were a young man of his stature, weighed 180 pounds, and the victim back there were attacking my girlfriend, I would defend her. I would pick her up like [this and] I would carry her somewhere else and I would set her down, Now, stay away from over there. You don t knock them to the ground. You don t break their arms. You don t loosen their teeth. You don t scratch them all over. You don t send them to the hospital. That s not self-defense. That is offense. That is taking it to the other party for whatever reason. There is no case of self-defense before you today.

Egregious harm is a difficult standard to prove .... Hutch, 922 S.W.2d at 171. We cannot conclude that the standard is met by this record. Although Torens s testimony raised the issue of whether Perez, acting in Torens s defense, accidentally knocked Cookie to the ground, the testimony of three other witness participants directly contradicted Torens s testimony. In reconciling the conflicting testimony, the jury easily could have found, as the State argued, that Torens s testimony was not credible and concluded that Perez could not have reasonably believed that defending Torens required the immediate use of force, particularly since Perez s truck was nearby in the parking lot where the fight occurred. See Tex. Pen. Code Ann. 9.31, 9.33 (Vernon 2003). // And the jury was properly instructed on the law of defense of third persons; Perez s trial counsel argued it as a basis for finding Perez not guilty; and nothing in the record indicates the jury was confused. We therefore hold the trial court s error in failing to submit an application paragraph on defense of third persons did not result in egregious harm. See Degrate, 86 S.W.3d at 754; Barrera v. State, 10 S.W.3d 743, 746 (Tex. App. Corpus Christi 2000, no pet.) ( There is nothing in the record indicating the jury was misinformed or uninformed on the law of self-defense. Considering the jury was given a general instruction on the law of self-defense and appellant discussed self-defense in his argument before the jury, and in light of the relative decline in importance of the application paragraph, we conclude the trial court s error with relation to the jury charge did not cause egregious harm to appellant. ).

2. Perez next argues the trial court abused its discretion in denying his motion for new trial because his attorney was ineffective by failing to investigate the case and subpoena witnesses who had exculpatory information regarding the altercation. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding appropriate standard of review for ineffective assistance claim brought forth in motion for new trial is abuse of discretion). However, neither Perez s trial counsel nor any other person familiar with his motivations testified at the hearing on Perez s motion for new trial; therefore, the record is silent as the extent of his investigation, the efforts he undertook to locate exculpatory witnesses, and the reasons he did not subpoena the exculpatory witnesses to testify at trial. Absent such testimony, we must presume Perez s trial counsel acted within the range of reasonable professional assistance and conducted an investigation, attempted to locate and make contact with the witnesses, and made tactical decisions whether to subpoena them to testify at trial (particularly since two of the three exculpatory witnesses testified at the new trial hearing that they had criminal records). We therefore hold Perez has failed to demonstrate his trial counsel was ineffective in this regard. See, e.g., Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App. Houston [1st Dist.] 1999, pet. ref d) (holding that appellant failed to overcome strong presumption that his trial counsel acted within the range of reasonable professional assistance because no evidence in the record to indicate why appellant s trial counsel engaged in the conduct of which appellant now complains ).

3. Perez next argues the trial court abused its discretion in denying his motion for a new trial because his trial counsel was ineffective in failing to request an application paragraph on defense of third persons and failed to object to its omission. Again, the record is silent as to Perez s trial counsel s motivations. We must therefore assume Perez s trial counsel rendered effective assistance. See Webber v. State, 29 S.W.3d 226, 233 (Tex. App. Houston [14th Dist.] 2000, pet. ref d) ( Indeed, a lawyer quietly sitting by, watching the judge read an incorrect charge may plot an appeal just as well as the one who tells the judge she has no objections to it. ). And, in light of our holding that the omission of an application paragraph on defense of third persons did not result in egregious harm, we likewise conclude Perez has failed to demonstrate that had his trial counsel requested an application paragraph on defense of third persons or objected to its omission, the trial s outcome would have been different. See Derouen v. State, No. 01-99-01415-CR, 2001 WL 170981, at *3 (Tex. App. Houston [1st Dist.] Feb.22, 2001, no pet.) (not designated for publication) ( Having found the error [in failing to include an application paragraph on self-defense] was not egregious, and based on our review of the evidence, there is no reasonable probability the result of the trial would have been different without the deficient conduct. ).

4. Perez next argues the trial court abused its discretion in denying his motion for a new trial because his trial counsel was ineffective during the punishment phase in failing to obtain the records necessary to contest Cookie s testimony regarding the amount of restitution owed her for her medical bills. However, at the hearing on Perez s motion for new trial, the trial court admitted Cookie s medical records into evidence; and, in its order denying Perez s motion, the trial court reduced its restitution order from $1400.00 to $828.20 the amount Cookie owed the hospital, as reflected in its summary of account. We therefore conclude Perez has failed to establish that, without his trial counsel s deficiency in this regard, the outcome of the trial could have been different.

The trial court s judgment is affirmed.

Sarah B. Duncan, Justice

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