Freddy Uceta v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00069-CR

Freddy Uceta, Appellant

v.

The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY

NO. 75816, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted Freddy Uceta of the second-degree felony offense of aggravated

assault with a deadly weapon, a razor blade. See Tex. Penal Code § 22.02(a)(2). After finding

an enhancement paragraph to be true, the jury assessed punishment at sixty-five years’

imprisonment. See id. §§ 12.32(a), .33(a). The district court rendered judgment on the verdict.

On appeal, Uceta contends that the district court erred by refusing his requested jury instruction

on self-defense, that there was insufficient evidence that he used a deadly weapon, and that his

custodial statement made without Miranda warnings should have been excluded. We will affirm

the district court’s judgment of conviction.

BACKGROUND

Uceta’s aggravated-assault charge stemmed from his attack on Detrick Dortch

when they were both inmates at the Bell County Jail.1 Jail guard David Guerra testified that on

the night of the offense, he was preparing to place inmates in their cells before “lights out” and

allowing them to use the restroom in the dorm area. Dortch was alone at a urinal in the restroom

and stood facing the wall. Uceta approached Guerra and said that he needed to use the restroom.

When Uceta went into the restroom, Guerra heard no words exchanged between the inmates but

saw Uceta walk up behind Dortch and begin “hitting” his back and the back of his head. Guerra

attempted to separate the inmates and to “peel [Uceta] off of” Dortch, but Uceta “continued to

strike” Dortch as “his arms were flailing around.” Guerra testified that Uceta “didn’t look like

he was holding back” or showing “any restraint” during the assault. When the inmates were

eventually separated, Guerra placed Uceta in hand restraints.

Events leading to the restroom attack were captured on a jail video that was

admitted into evidence without objection. The video shows Uceta dancing in a common area

outside the restroom, speaking to a jail guard, and then entering the restroom less than a minute

after Dortch did. A portion of the restroom’s interior is visible through the open restroom door.

Jail staff rush into the restroom shortly after Uceta enters it, and through the doorway they are

seen trying to remove Uceta from Dortch. Later, jail staff escort Dortch and Uceta separately

from the restroom.

Corporal Eddie Booth arrived at the scene as Dortch was being led out of the

restroom. He saw that Dortch sustained injuries to his back, torso, and both sides of his face and

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Uceta was jailed pending trial for an unrelated offense, for which he was convicted.

See Uceta v. State, No. 03-18-00506-CR, 2019 Tex. App. LEXIS 9640, at *15 (Tex. App.—

Austin Nov. 5, 2019, pet. ref’d) (mem. op., not designated for publication).

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was “bleeding profusely.” Corporal Booth noticed that those injuries “didn’t look like they had

come from a fight” with fists but “looked more like he had been sliced with a knife, or razor

blade.” Uceta did not have any visible injuries. Photographs of Dortch’s injuries were admitted

into evidence and showed that Dortch had a cut on his face going from his right ear to within an

inch of his eye; another cut on his shoulder that continued horizontally across his arm; and three

cuts on his back ranging from about three and a half to sixteen inches long, with one cut that

went from his back up to his neck. Corporal Booth testified that the cuts to Dortch’s back were

“the most severe” in “length and depth” and that those injuries, if inflicted on his throat, could

have caused serious bodily injury or death. He also testified that the injury near Dortch’s eye if

it continued into his eye, could have blinded him.

A jail nurse treated Dortch’s injuries by cleaning the wounds, using pressure to

stop the bleeding, and applying “glue or Steri-strips” instead of stitches or sutures to close the

wound that went from Dortch’s ear to his eye. She stated that the cuts on Dortch’s back “were

superficial but the ones on the face area looked deeper.” She opined that a wound to the eye

could have caused a loss of the eye and that a wound to the throat from a razor blade would have

presented a risk of serious bodily injury or death.

Uceta “didn’t seem fearful” at any time, according to Corporal Booth, and Uceta

gave no explanation to him for the attack on Dortch. Corporal Booth searched Uceta for a

weapon, and Uceta produced a razor blade from his mouth. The blade came from one of the

razors provided to inmates for shaving, and it had not been returned as required. Corporal Booth

stated that when removed from the razor, the blade is “flimsy” and “there’s no way to put . . .

extreme amount of force behind it.” He also stated that Dortch’s injuries “weren’t deep enough

to be . . . fatal,” they were “superficial injuries” that did not require hospitalization. Corporal

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Booth agreed with defense counsel’s suggestion that “the flimsiness of the blade ke[pt] that from

being serious injuries[.]” He testified that if the blade were on a dangerous spot on the body—

like the throat, wrists, or eyes—it could have penetrated enough to damage important organs or

body parts.

After the attack, as Uceta was being placed into a holding cell, Corporal Booth

heard Uceta chanting loudly, “I’m a cut, cut, cutter.” Uceta’s chant was not in response to any

question. Corporal Booth testified that the incident between Uceta and Dortch resulted in a

disciplinary proceeding at the jail. As part of that proceeding, the disciplinary board held a

hearing. Corporal Booth stated that the purpose of a disciplinary hearing is to assess punishment

for a rule violation. When Corporal Booth served Uceta with notice of the disciplinary action

against him, Uceta “kept on saying” that “he was a cold-blooded killer.” Corporal Booth

testified that Uceta’s statement was not in response to any questioning and might have been

made for other inmates to hear.

Shift Sergeant Michael Craft spoke with Uceta and Dortch about what happened.

Outside the presence of the jury, Sergeant Craft testified that before speaking with Uceta, he did

not provide Miranda warnings to him, request an attorney for him, or determine whether Uceta

had an attorney. See Miranda v. Arizona, 384 U.S. 486, 479 (1966) (summarizing warnings).

Sergeant Craft stated that advising an inmate of his rights is “[n]ot typical for an inmate

disciplinary” proceeding and that “[n]obody on the in-house disciplinary is placed under arrest.”

Sergeant Craft noted that the nature of disciplinary hearings is administrative, rather than

criminal, and that when he spoke with Uceta, Uceta “had no criminal charges as a result of this

assault.”

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Sergeant Craft testified that he “was trained to speak to both parties” as part of the

jail’s regular procedure for infractions that are subject to administrative disciplinary proceedings.

He explained that minor infractions result in reports, while fights or assaults result in a

disciplinary hearing with notice of the hearing served to the inmate. Sergeant Craft spoke to

Dortch in the infirmary, and Dortch told him that he and Uceta had a fight that the jail staff “did

not see.” Sergeant Craft then went to a holding cell and spoke with Uceta. Before asking him

anything, he heard Uceta repeatedly chanting the words of a song, “I had to cut him.” Sergeant

Craft asked Uceta what happened, but Uceta only “continued to chant” while smiling, dancing,

and “making hand gestures” like scissors cutting.

During trial, Dortch testified that he was “using the bathroom” and did not see

Uceta before he attacked him. Dortch said nothing to Uceta at the time and did not swing at him

or attack him. Dortch denied any memory of the assault and stated that his first recollection of

that event was ending up in the shower area with a jail guard putting a sheet on his bleeding face.

Dortch showed the jury the permanent scars on his face and shoulder resulting from Uceta’s

attack. Additionally, Dortch testified that he sustained a cut to his right eye—which the nurse

did not notice when treating his other injuries—that he has difficulty seeing out of that eye, and

that he requires glasses because of his eye injury. He acknowledged that he and Uceta were

involved in a “physical confrontation” that occurred “weeks” before this incident, but Dortch had

not seen or had any contact with Uceta during those intervening weeks.

Uceta testified at trial that he assaulted Dortch with a razor “out of anger because

of a prior incident.” Uceta said that he and Dortch had a fistfight in a jail cell four or five days

before the restroom assault and that Dortch hit him while he was unconscious, which “dented”

his face. Uceta stated that he discussed his sexuality openly and, “I was being bullied by Mr.

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Dortch because I’m a homosexual.” Uceta reported the bullying to jail staff but did not report

the fistfight and did not ask to be moved. Uceta testified that before the assault, he found a razor

blade in a book and kept it instead of turning it in.

On the night of the assault, Uceta retrieved the blade, hid it in his hand, and

waited for Dortch to go into the restroom. Uceta said that while waiting for Dortch, he knew

what he was going to do. He testified that when he saw Dortch, “I felt furious. I felt anger. I

felt in fear of my life.” But on cross-examination, Uceta testified that he planned to attack

Dortch; that he was not worried that Dortch was going to turn around and come at him from the

restroom; that Dortch did nothing while in the restroom to make Uceta think that Dortch was

about to come after him; and that as he entered the restroom door, Dortch said nothing to him

and made no threatening move toward him. Uceta acknowledged that he slashed at Dortch with

the razor blade multiple times, that he swung at Dortch’s back and face, and that he stopped

swinging the razor blade at Dortch only because of the jail guards’ intervention. Uceta also

acknowledged that he was aware of jail-disciplinary procedures, that he could have reported

what happened with Dortch previously, and that jail staff could have disciplined him.

A brief video of Uceta’s hearing before the disciplinary board was admitted into

evidence without objection. On the video, Uceta states that he is guilty of the assault, and then a

board member asks Uceta whether there “was something that happened prior to this.” Uceta

replies, “No.” He adds, “All I want to say is, you got what you deserved, p---y.”

When the evidence closed, Uceta requested a jury instruction on self-defense,

which the district court denied. Additionally, Uceta objected to the inclusion of a deadly weapon

instruction, which the district court overruled. The jury found Uceta guilty of aggravated assault

with a deadly weapon as charged. When the punishment phase concluded, the jury found an

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enhancement paragraph true and assessed punishment at sixty-five years’ imprisonment. The

district court rendered judgment on the verdict. This appeal followed.

DISCUSSION

No entitlement to instruction on self-defense

In his first issue, Uceta contends that the district court erred by refusing his

requested jury instruction on self-defense. Our review of charge-error issues begins with a

determination of whether error exists in the charge. Price v. State, 457 S.W.3d 437, 440 (Tex.

Crim. App. 2015). “If error exists, we then analyze the harm resulting from the error” to

determine whether reversal is required. Id. In determining harm, we apply separate standards of

review depending on whether the charge error was preserved in the trial court. Marshall v. State,

479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (citing procedure for review of charge-error

complaints set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g)). When, as here, the jury-charge complaint was preserved in the trial court, “reversal is

required if there was some harm to the defendant.” Id. at 843.

The Penal Code provides that “[t]he issue of the existence of a defense is not

submitted to the jury unless evidence is admitted supporting the defense.” Tex. Penal Code

§ 2.03(a); Kuhn v. State, 393 S.W.3d 519, 532 (Tex. App.—Austin 2013, pet. ref’d). A

defensive issue is raised by the evidence if there is sufficient evidence to support a rational jury

finding as to each element of the defense. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim.

App. 2020); see Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) (noting that

defendant is entitled to instruction on defensive issue that is raised by evidence, whether weak or

strong, unimpeached or uncontradicted, and regardless of credibility of such defense to trial

court). “The defendant bears the burden of showing that each element of the defense has been

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satisfied.” Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). Accordingly, when

the evidence viewed in the light most favorable to the defendant does not establish the defense,

the defendant is not entitled to an instruction on the issue. Kuhn, 393 S.W.3d at 532.

When “determining whether a defense is supported by the evidence, ‘a court must

rely on its own judgment, formed in the light of its own common sense and experience, as to the

limits of rational inference from the facts proven.’” Id. (quoting Shaw, 243 S.W.3d at 658).

Requiring the evidence to “rationally support a jury finding before a defensive instruction is

required serves to preserve the integrity of the jury as the factfinder by ensuring that it is

instructed as to a defense only when, given the evidence, that defense is a rational alternative to

the defendant’s criminal liability.” Shaw, 243 S.W.3d at 658. “If a jury were instructed as to a

defense even though the evidence did not rationally support it, then the instruction would

constitute an invitation to the jury to return a verdict based on speculation.” Id. “Whether a

defense is supported by the evidence is a sufficiency question reviewable on appeal as a question

of law.” Id.

The Texas Penal Code sets forth the elements of self-defense, providing that “a

person is justified in using force against another when and to the degree the actor reasonably

believes the force is immediately necessary to protect the actor against the other’s use or

attempted use of unlawful force.” Tex. Penal Code § 9.31(a) (emphasis added). “‘Reasonable

belief’ means a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor.” Id. § 1.07(a)(42). Thus, the Penal Code expressly requires some

evidence of the defendant’s reasonable belief that his use of force was immediately necessary to

protect himself from another’s use or attempted use of unlawful force. See id. §§ 1.07(a)(42),

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9.31(a); Alexander v. State, No. 03-14-00290-CR, 2016 Tex. App. LEXIS 531, at *9 & n.11

(Tex. App.—Austin Jan. 21, 2016, pet. ref’d) (mem. op., not designated for publication).

Uceta contends that the evidence at trial and reasonable inferences from it “would

have allowed a reasonable juror to conclude that Uceta was in fear of being beaten, if not killed

by Dortch if Dortch’s taunts and bullying escalated.” (Emphasis added.) But to meet his burden

of showing entitlement to a self-defense instruction, Uceta had to show some evidence that he

reasonably believed his use of force was immediately necessary to protect himself against

Dortch’s use or attempted use of unlawful force. See Tex. Penal Code § 9.31(a) (emphasis

added). The uncontroverted evidence was that Uceta planned to attack Dortch, that Dortch did

nothing while in the restroom to make Uceta think that Dortch was about to come after him, and

Dortch said nothing to Uceta and made no threatening move toward Uceta as Uceta entered the

restroom door. Although Uceta testified that he felt “furious,” “anger,” and “in fear of [his] life”

when he saw Dortch, no evidence indicated that Dortch used or attempted to use unlawful force

against Uceta at the time of the assault, and Uceta testified that he was not worried about Dortch

turning around and coming at him from the restroom. Cf. id.

Nothing in the record, viewed in the light most favorable to Uceta, would allow a

reasonable factfinder to infer that he had a reasonable belief that his use of force against Dortch

was “immediately necessary” to protect himself against any use or attempted use of unlawful

force by Dortch. See id. §§ 1.07(a)(42), 9.31(a). Because Uceta failed to meet his burden of

showing that every element of self-defense in subsection 9.31(a) was met, we cannot conclude

that the district court erred by refusing Uceta’s requested jury instruction on self-defense. See id.

§ 9.31(a); Jordan, 593 S.W.3d at 343; Juarez, 308 S.W.3d at 404; Kuhn, 393 S.W.3d at 532. We

overrule Uceta’s first issue.

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Sufficient evidence showing use of deadly weapon during assault

In his second issue, Uceta challenges his conviction by contending that there was

insufficient evidence that he used a “deadly weapon” during the commission of an assault. We

determine whether there is sufficient evidence to support a conviction by considering the

combined and cumulative force of all admitted evidence in the light most favorable to the verdict

and deciding whether, based on that evidence and the reasonable inferences from it, a jury was

rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 318-19 (1979); Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Proving a

defendant’s guilt beyond a reasonable doubt does not require disproving every conceivable

alternative to his guilt. Tate, 500 S.W.3d at 413. Direct evidence and circumstantial evidence

are equally probative in a sufficiency review. Id. As the sole judge of credibility and weight to

be attached to the testimony of witnesses, the jury may draw multiple reasonable inferences from

the facts so long as each is supported by the evidence presented at trial. Jackson, 443 U.S. at

326; Tate, 500 S.W.3d at 413. If the record supports conflicting inferences, we presume that the

jury resolved those conflicts in favor of the verdict. Jackson, 443 U.S. at 326; Tate, 500 S.W.3d

at 413.

The Penal Code states, in relevant part, that a person commits aggravated assault

if he commits assault and uses or exhibits a deadly weapon during the commission of the assault.

Tex. Penal Code § 22.02(a)(2). The Penal Code defines a deadly weapon as “(A) a firearm or

anything manifestly designed, made, or adapted for the purpose of inflicting death or serious

bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury.” Id. § 1.07(a)(17). The Penal Code defines “[s]erious bodily

injury” as “bodily injury that creates a substantial risk of death or that causes death, serious

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permanent disfigurement, or protracted loss or impairment of the function of any bodily member

or organ.” Id. § 1.07(a)(46). The district court’s charge tracked these statutes when defining the

offense and the terms “deadly weapon” and “serious bodily injury” in the abstract portion of the

charge. In the application paragraph, the court instructed the jury to find Uceta guilty of

aggravated assault with a deadly weapon if it found from the evidence beyond a reasonable

doubt that Uceta “did then and there intentionally, knowingly, or recklessly cause bodily injury

to Detrick Dortch by cutting the said Detrick Dortch with a razor blade, and [Uceta] did then and

there use or exhibit a deadly weapon, to-wit: a razor blade during the commission of said

assault.” See id. § 22.02(a)(2).

When determining whether a weapon is deadly in its manner of use or intended

manner of use, we consider threatening actions by the defendant, including the defendant’s

proximity to the victim, the weapon’s ability to inflict serious bodily injury or death, and the

manner in which the defendant used the weapon. Johnson v. State, 509 S.W.3d 320, 323 (Tex.

Crim. App. 2017). Although the nature of the inflicted wounds is a factor to be considered,

“wounds are not a necessary prerequisite for an object to be a deadly weapon.” Dominique v.

State, 598 S.W.2d 285, 286 (Tex. Crim. App. 1980) (noting that “[t]he most important criteria

was the manner in which the weapon was used”). Either expert testimony or lay testimony may

be sufficient to support a deadly weapon finding. English v. State, 647 S.W.2d 667, 668-69

(Tex. Crim. App. 1983).

Here, Uceta notes that the razor he used to strike Dortch was small, that it was

described as “flimsy” and incapable of bearing an “extreme amount of force behind it” and that

the flimsiness of the blade kept the injuries from being serious ones. However, Uceta

acknowledged that he slashed at Dortch with the razor blade multiple times, swinging at

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Dortch’s back and face. Uceta was close enough to inflict multiple cuts to Dortch as he stood at

the urinal. There was evidence that Uceta used the razor blade to inflict injury that impaired

Dortch’s eyesight, and the jury saw the permanent scarring to Dortch’s face and shoulder

resulting from Uceta’s use of the blade. Corporal Booth testified that the cuts to Dortch’s back

were “the most severe” in “length and depth” and that those injuries, if inflicted on his throat,

could have caused serious bodily injury or death. A jail nurse stated that she applied “glue or

Steri-strips” instead of stitches or sutures to close the wound that went from Dortch’s ear to his

eye. She opined that a wound to the eye could have caused a loss of the eye and that a wound to

the throat by a razor blade would have presented a risk of serious bodily injury or death. The

jury saw video evidence showing that jail guards intervened shortly after Uceta entered the

restroom, and Uceta acknowledged that he stopped swinging the razor blade at Dortch only

because of their intervention. Further, the razor blade itself was admitted into evidence, and the

jury could observe its characteristics when assessing whether it was a deadly weapon.

We conclude that the evidence at trial, viewed in the light most favorable to the

jury’s verdict, is sufficient to support the jury’s verdict that the razor blade was a deadly weapon

because the manner of its use or intended use by Uceta was capable of causing death or serious

bodily injury. See Barnett v. State, 344 S.W.3d 6, 13 (Tex. App.—Texarkana 2011, pet. ref’d)

(concluding that pocketknife was deadly weapon); see also Byrd v. State, No. 04-08-00313-CR,

2009 Tex. App. LEXIS 4970, at *3 n.1, *11 (Tex. App.—San Antonio July 1, 2009, pet. ref’d)

(mem. op., not designated for publication) (noting that deadly weapon used by inmate during

assault was blade removed from State-issued disposable razor). We overrule Uceta’s second

issue.

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Admission of statement to Sergeant Craft was harmless

In his third issue, Uceta contends that the district court erred by admitting his

custodial statement to Sergeant Craft after the attack and while Uceta was in a holding cell. The

court overruled Uceta’s objection to Sergeant Craft’s testimony that he asked Uceta what

happened and Uceta said, “I had to cut.” Uceta contends that he was in police custody when he

made his statement to Sergeant Craft and that the statement was inadmissible because he had not

been provided with Miranda warnings. See Miranda, 384 U.S. at 479. Uceta’s complaint is

based on this testimony from Sergeant Craft:

Q And so in terms of this incident we’re talking about you being in the beginning

of the investigative stage when you go talk to Mr. Uceta?

A Yes.

Q And when you went to talk to him in the holding cell, what did you say to him?

A I asked him, simply what happened. What did you see what happened, what

was your side.

Q All right. And what did he say to you?

A He was kind of chanting the words of a song back and forth “I had to cut him.”

Q Were those the only words that you can remember him saying?

A Yes.

....

Q Did he—was there a period of time that he chanted this song?

A From my recollection he was chanting the song even before I walked up to the

cell.

Q Okay. So when you asked him the question, he was already chanting the song?

A Yes.

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The evidence shows that Uceta was chanting a song, “I had to cut him,” before

Sergeant Craft ever asked him a question. But even if Uceta’s statement to Sergeant Craft

should have been excluded, its admission was harmless. Texas Rule of Appellate Procedure

44.2(a) provides that if there is constitutional error, the reviewing court must reverse the

judgment of conviction unless the court determines “beyond a reasonable doubt that the error did

not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a). Here, the admission of

Uceta’s statement, “I had to cut”—which was the subject of his objection during trial—did not

contribute to Uceta’s conviction or punishment, particularly given the evidence that was

previously presented to the jury showing that Uceta cut Dortch as charged in the indictment.

The day before the jury heard any testimony from Sergeant Craft about Uceta’s

statement, the jury saw the video showing Uceta dancing in a common area outside the restroom,

speaking to a jail guard, entering the restroom less than a minute after Dortch, being separated

from Dortch by jailers, and being escorted from the restroom. The jury heard jail guard Guerra

testify that he saw Uceta walk up behind Dortch and appear to begin “hitting” Dortch’s back and

the back of his head. Corporal Booth noticed that Dortch’s injuries “didn’t look like they had

come from a fight” with fists but “looked more like he had been sliced with a knife, or razor

blade.” After the attack, Uceta produced a razor from his mouth and gave it to Corporal Booth.

As Uceta was being placed into a holding cell, Corporal Booth heard Uceta chanting loudly,

unprompted by any question, “I’m a cut, cut, cutter.”

Further, Uceta himself testified that he assaulted Dortch with a razor “out of anger

because of a prior incident”; that he did not turn in the razor blade when he found it; that he

waited for Dortch; and that he slashed at him with the razor blade multiple times, stopping only

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because of the jail guards’ intervention. The jury saw a second video from the disciplinary

proceeding, in which Uceta stated, “All I want to say is, you got what you deserved.”

Given the evidence presented to the jury during trial, we conclude beyond a

reasonable doubt that even if there were any error in admitting Uceta’s statement to Sergeant

Craft that he “had to cut,” such error did not contribute to Uceta’s conviction or punishment. See

Tex. R. App. P. 44.2(a). We overrule Uceta’s third issue.

CONCLUSION

We affirm the district court’s judgment of conviction.

__________________________________________

Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Smith

Affirmed

Filed: February 3, 2021

Do Not Publish

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