The opinion
Opinion issued October 11, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00914-CR
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TONY GONZALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1438405
MEMORANDUM OPINION
Tony Gonzales and his roommate, Juan Carlos Leiva-Delgado, went to the
parking lot of a neighborhood bar and drank in their car. About an hour after they
arrived, Leiva was dead from multiple stab wounds and blunt head trauma. The
police found Gonzales hiding in the bushes with blood on his shirt and a broken
knife in his pocket. At his murder trial, Gonzales argued self-defense. The jury
rejected that defense and found Gonzales guilty. The trial court sentenced him to
65 years’ confinement.
On appeal, Gonzales argues for an acquittal because there is legally
insufficient evidence to support the jury’s rejection of his self-defense claim.
Alternatively, if we do not reverse his conviction, he argues that we should modify
the judgment of conviction to delete an erroneous deadly-weapon finding that the
crime was committed with a firearm.
We modify the judgment to delete “firearm” and replace it with “knife.” We
affirm the judgment as modified.
Background
Several years ago, Leiva moved in with Gonzales and Gonzales’s common-
law wife. The men became close friends and often drank and socialized together.
One night they bought some beer and drove to the parking lot of a neighborhood
bar to drink in Leiva’s car.
The bar’s surveillance video was admitted into evidence. It shows that, about
one hour after Leiva parked his car in the bar parking lot, Leiva quickly jumped
out of his car, and Gonzales chased him. Leiva fell to the ground between two
vehicles. Gonzales ran to the same place and dropped down between the cars. Both
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men were out of the camera’s view for fourteen seconds. Then, Gonzales stood up,
said something to bar patrons who were walking by, and ran off.
When emergency personnel arrived several minutes later, they found Leiva
dead in the same location where he had fallen. They also found Gonzales squatting
in some bushes near Leiva’s parked car. He claimed to know nothing about Leiva
or Leiva’s vehicle. After connecting Gonzales to the vehicle, noting blood on his
shirt and in the car, and finding a broken knife handle in his pocket, the police
arrested him. The indictment alleged that Gonzales caused Leiva’s death by
stabbing him with “a knife” or “a box cutter” or striking him with “his hand” or
“an unknown object.”
At trial, Gonzales testified that the two friends were sitting in Leiva’s car
talking about soccer when they began to argue over which of their two favorite
teams was better and which had the best star player. According to Gonzales, Leiva
unexpectedly lunged at him from the driver’s seat and attempted to stab him with a
knife. Gonzales blocked the blow with his left hand and hit Leiva in the throat with
his right hand, causing the knife to fall. Gonzales picked up the knife and,
according to his testimony, stabbed Leiva in self-defense. Gonzales was asked on
cross-examination whether he had stomped on Leiva, causing his head injury. He
responded, “I don’t remember. I don’t recall. No.”
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The State argued that Gonzales repeatedly stabbed Leiva in the car, chased
him through the parking lot—as demonstrated on the surveillance video—and,
when he got to Leiva’s fallen body, stomped on Leiva, causing his blunt head
trauma. The State presented evidence suggesting that the two men may have been
fighting over a woman they both had dated.
That woman testified at trial. She said that she dated Leiva, their relationship
ended amicably, then she began an affair with Gonzales. She testified that she
became afraid of Gonzales because he was very jealous. Gonzales told her that she
had to stay away from Leiva. She ended the affair with Gonzales because of his
jealousy, but he continued to text her. There was evidence of texts between the
woman and Gonzales the same day that Gonzales stabbed Leiva. In those
messages, Gonzales indicated that he wanted to continue the relationship, while
she maintained that she wanted him to leave her alone.
Gonzales conceded that he had told the woman to stop socializing with
Leiva and that she ended their affair because of his jealousy. But he denied that he
and Leiva had any animosity toward each other as a result. According to Gonzales,
the fight in the bar parking lot was about soccer players, not the woman.
The medical examiner testified about Leiva’s injuries. He died from stab
wounds and blunt head trauma. Leiva had seven stab wounds to his chest, which
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were consistent with the size of the knife found at the scene. He also had defensive
stab wounds and other superficial injuries to his arms.
Regarding his head wound, the medical examiner described it as a “pattern
contusion,” meaning that there is a visible pattern on the wound that would match
the pattern of whatever object struck Leiva’s head. She agreed that the pattern
might match a shoe sole, but she testified that no effort was made to analyze
whether it matched Gonzales’s shoe. She testified that the pattern contusion on
Leiva would not be consistent with him simply falling to the parking lot’s gravel
surface because gravel does not have the “mosaic pattern that we saw on the
injury.”
The jury was given an instruction on self-defense, informing it that “a person
is justified in using force against another when and to the degree he reasonably
believes the force is immediately necessary to protect himself against the other
person’s use or attempted use of unlawful force.” The jury was instructed that it
should return a verdict of not guilty if it had “a reasonable doubt as to whether or
not [Gonzales] was acting in self-defense.” The jury found Gonzales guilty of
murder “as charged in the indictment,” implicitly rejecting his self-defense claim.
Gonzales elected to have the trial court sentence him, and he received a sentenced
of 65 years’ confinement. The judgment of conviction included the following
deadly-weapon finding: “Yes, a firearm.”
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Gonzales appeals his conviction.
Sufficiency of Evidence on Self-Defense
In his first issue, Gonzales contends that there is legally insufficient
evidence to support the jury’s rejection of his self-defense claim.
A. Standard of review
We review sufficiency of the evidence using the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 318−20, 99 S. Ct. 2781, 2788–89 (1979). See
Brooks v. State, 323 S.W.3d 893, 898–912 (Tex. Crim. App. 2010). Under that
standard, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). We consider all reasonable inferences that may be drawn from the evidence
in making our determination, including all direct and circumstantial evidence.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Evidence is insufficient in four circumstances: (1) no evidence exists that is
probative of an element of the offense in the record; (2) only a “modicum” of
evidence exists that is probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the alleged acts do not
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establish the criminal offense charged. See Jackson, 443 U.S. at 314–15, 320;
Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013).
The jury has the exclusive role of evaluating the facts, the credibility of the
witnesses, and the weight a witness’s testimony should be given. Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,
125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury
may choose to believe all, some, or none of a witness’s testimony. See Davis v.
State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And
the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23
S.W.3d 18, 30 (Tex. Crim. App. 2000).
Under the Jackson standard, we defer to the factfinder “to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. If there are conflicts in the evidence, we must presume the
factfinder resolved the conflicts in favor of the verdict and defer to that
determination, as long as it is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793. If the evidence is insufficient, we must reverse and enter an order of
acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).
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B. Self-defense as justification for deadly force
The use of deadly force is justified if a person believes that it is immediately
necessary to protect himself against another’s use or attempted use of unlawful
deadly force. TEX. PENAL CODE ANN. § 9.32(a)(2)(A). To support a self-defense
claim, the defendant must produce some evidence to show that he acted in self-
defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). If the
defendant presents such evidence, the State must disprove the self-defense claim
beyond a reasonable doubt. Id. The State’s burden is not one of production but,
instead, of persuasion, meaning that the State must prove its case beyond a
reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App.
1991). The jury implicitly rejects the self-defense claim if it finds the defendant
guilty. Zuliana, 97 S.W.3d at 594.
C. Legally sufficient evidence supports jury’s verdict
Gonzales argues that there was no evidence to contradict his self-defense
claim and, as a result, no rational jury could have found beyond a reasonable doubt
that he did not act in self-defense. In other words, no reasonable jury could have
rejected his self-defense theory to find him guilty of murder. We conclude that
there was legally sufficient evidence to support the jury’s verdict.
Gonzales testified that there was no animosity between the two men about
the woman they both had dated. He said the two were arguing about soccer when
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Leiva unexpectedly lunged at him with a knife. But there was evidence that
Gonzales was trying to continue the affair, the woman was shunning Gonzales
because of his jealousy, and Gonzales was trying to prevent her continued contact
with Leiva. The jury, as factfinder, was free to weigh the credibility of the
witnesses’ testimony and believe or disbelieve any portion of their testimony. See
Davis, 177 S.W.3d at 358. The jury could have disbelieved Gonzales about the
source of the argument and the events in the car that led to the stabbing. See
Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d) (holding jury can choose to disbelieve witness even if witness’s
testimony is uncontradicted).
Even if the jury accepted Gonzales’s explanation that Leiva used the knife
first, Gonzales testified that he had effectively disarmed Leiva before grabbing the
knife and stabbing Leiva. From this testimony, the jury reasonably could have
concluded that the use of deadly force was no longer immediately necessary.
Additionally, the jury reasonably could have concluded that Gonzales’s self-
defense claim was not credible given the surveillance video showing him chase
Leiva through the parking lot (after stabbing him) instead of taking a more
defensive action, like remaining in the car and locking the doors. Cf. Sanchez v.
State, 418 S.W.3d 302, 309–10 (Tex. App.—Fort Worth 2013, pet. ref’d) (noting
that defendant chasing complainant is inconsistent with claim of self-defense). The
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evidence of Leiva’s head wound, combined with the video showing Leiva falling
between two cars and Gonzales disappearing in the same location, reasonably
could be interpreted to support the conclusion that Gonzales caught up to Leiva
where he had fallen and stomped on him, thereby causing the blunt head trauma
described by the medical examiner. From all of this evidence, the jury reasonably
could have inferred that Gonzales was the aggressor and rejected his self-defense
explanation. See Alvarado v. State, 822 S.W.2d 236, 240 (Tex. App.—Houston
[14th Dist.] 1991, pet. ref’d) (holding that sufficient evidence supported jury
determination that appellant was aggressor and rejection of self-defense theory).
Based on all of the evidence presented at trial, viewed in the light most
favorable to the verdict, we hold that a rational jury could have found the essential
elements of the offense of murder beyond a reasonable doubt and also could have
found against Gonzales on the self-defense issue beyond a reasonable doubt by
disbelieving his testimony. See Saxton, 804 S.W.2d at 914; Denman v. State, 193
S.W.3d 129, 132–33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
We overrule Gonzales’s first issue.
Deadly-Weapon Finding
In his second issue, Gonzales contends that “the judgment erroneously
included a finding that [he] used a firearm to commit the offense” and asks that we
modify the judgment to delete that finding. The State agrees that the firearm
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reference is erroneous and that we should modify the judgment to delete the
specific reference to a firearm. The State, nonetheless, contends that we should
retain the more general finding that a deadly weapon was used, noting that the
indictment alleged use of a deadly weapon—described as a knife, Gonzales’s hand,
an unknown object, or a box cutter—and that the jury convicted Gonzales of
murder “as charged in the indictment.”
Appellate Rule 43.2(b) authorizes appellate courts to modify trial court
judgments and affirm them as modified. TEX. R. APP. P. 43.2(b). Appellate Rule
43.6 authorizes us to make any other appropriate orders that the law and the nature
of the case require. TEX. R. APP. P. 43.6. The Court of Criminal Appeals has
affirmed judgments modified by appellate courts to reflect the juries’ deadly-
weapon findings, including one in which the indictment identified a deadly weapon
and the jury found the defendant guilty “as charged in the indictment.” See French
v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State, 813
S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d)). Here, the indictment listed a
knife as a deadly weapon used to commit the offense, the jury received evidence
that Gonzales stabbed Leiva with a knife, causing his death, and the jury found
Gonzales guilty “as charged in the indictment.”
We sustain Gonzales’s second issue and modify the judgment concerning
the deadly-weapon finding to delete “firearm,” which we replace with “knife.”
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Conclusion
We affirm the judgment as modified.
Harvey Brown
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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