Adam Rivera v. The State of Texas--Appeal from 54th District Court of McLennan County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-92-00011-CR

Case Date: 09/30/1992

Plaintiff: Adam Rivera

Defendant: The State of Texas--Appeal from 54th District Court of McLennan County

Preview:Adam Rivera v. The State of Texas--Appeal from 54th District Court of McLennan County
IN THE TENTH COURT OF APPEALS

No. 10-92-010-CR No. 10-92-011-CR

ADAM RIVERA, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court Nos. 91-233-C & 91-234-C

OPINION

Adam Rivera appeals his conviction for murder in cause no. 91-233-C and his conviction for involuntary manslaughter in cause no. 91-234-C. The jury found Rivera guilty in both causes and assessed punishment at eighty years in prison in cause no. 91-233-C and ten years in prison in cause no. 91-234-C. Sufficiency of the Evidence In points one and two, Rivera contends that the evidence is insufficient to support his convictions for the murder of Mario Felan and the involuntary manslaughter of Martin Felan. In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. //

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Rivera has raised a self-defense theory in both causes. He argues on appeal that the evidence is insufficient for a rational trier of fact to find against him on the issue of self-defense. In resolving the sufficiency-of-the-evidence issue, we look not to whether the State presented evidence which refuted Rivera's self-defense testimony, but instead, we determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found against Rivera on the self-defense issue beyond a reasonable doubt. // Rivera does not contend that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. // Joseph Baird testified that, on October 20, 1990, he and the Felan brothers left a bar in Martin Felan's vehicle. As they were turning onto Valley Mills Drive someone yelled something at them from an elevated pedestrian cross-walk. Baird testified that Martin turned the car around and stopped in a parking lot across Valley Mills Drive from University Junior High School. According to Baird, Martin got out of the car and walked across the street. Baird testified that he then saw Martin with his hands in the air and a man holding a gun at his head. Mario Felan then ran across the street toward his brother. The armed man immediately began firing across the street. When Baird was hit by a bullet in the upper right thigh, he hid behind the car until the shooting stopped. Gabriel Dominquez testified that he was with Rivera and Andrew Mansolo on October 20, 1990. According to Dominquez, as the three of them walked across the elevated crosswalk, Mansolo asked something of someone in a car passing below. As they stepped off the crosswalk, Martin had already walked across the street and asked Mansolo, "What was up?" Mansolo held out his hand to shake hands with Martin but Martin refused. After exchanging unpleasantries, Rivera pulled a gun out and told Martin to get his hand out of his jacket. According to Dominquez, Mario then got out of the car and yelled, "I have got y'all." When Rivera pointed the gun at Martin's head, Martin said, "You are fucking up, boy." Dominquez testified that he never heard Martin say anything of a threatening nature to Rivera. Dominquez also testified, however, that Martin told Rivera that "he was going to fuck him up." Dominquez was watching Mario run across the street when the shooting began. Dominquez turned and saw Rivera swing the gun toward Mario. As Dominquez ran toward the crosswalk for cover, he heard three shots being fired. When he turned around again, he saw Mario struggling with Rivera and heard more shots. Martin was still standing near Rivera. Dominquez then heard another shot and saw Martin fall down. Finally, Dominquez saw Mario fall down. Martin and Mario both died from the their wounds. Dominquez testified that he never saw anybody threaten Rivera with a weapon. Rivera testified in his own behalf. Although he thought Mario had a gun, he admitted he "really couldn't tell" whether Mario was armed. He also testified that Martin never verbally threatened to kill or attack Rivera. Finally, Rivera testified that he thought Mario had a gun because he was running across the street pointing toward Rivera. The emergency medical technician who arrived on the scene after the shooting testified that he found Mario holding a long neck beer bottle in his right hand. On the basis of these facts, we hold that a rational jury could have found beyond a reasonable doubt against Rivera on the self-defense issue. Because the evidence is sufficient to support the convictions in both causes, we overrule points of error one and two. The "Verbal Provocation" Instruction In points three and four, Rivera contends that the trial court erred in overruling his objections to the "verbal provocation" instruction in the charge in both causes. The charge in each of the causes contained the following instruction relating to self-defense: Upon the law of self defense, you are instructed 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 use of force against another is not justified in response to verbal provocation alone.

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A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such force is immediately necessary to protect himself against the other person's use or attempted use of unlawful deadly force, and if a reasonable person in defendant's situation would not have retreated. By the term "deadly force" is meant force that is intended or known by the person using it to cause, or in the manner or its use or intended use is capable of causing, death or serious bodily injury. By the term "reasonable belief" as herein used is meant a belief that would be held by an ordinary and prudent person in the same circumstances as defendant.

(Emphasis added). Rivera objected at trial and argues on appeal that the "verbal provocation" instruction constituted a limitation on the definition of apparent danger and, therefore, an impermissible limitation on his theory of self-defense. The court provided the following guidance on determining the existence of real or apparent danger: In determining the existence of real or apparent danger, you should consider all the facts and circumstances in the case in evidence before you, together with all relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the occurrence in question, and in considering such circumstances, you should place yourselves in defendant's position at the time and view them from his standpoint alone.

(Emphasis added). In Quintana v. State, the court held that a similar "verbal provocation" instruction did not limit the application of the law to the facts in a self-defense charge. // Rivera also argues that the court's charge creates an inherent conflict because the application paragraph allows the jury to consider the victims' "words or conduct, or both." In the application paragraph the court charged the jury as follows: Now if you find from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Adam Rivera, did kill [Mario Felan (cause no. 91-233-C) or Martin Felan (cause no. 91-234-C)] by shooting him with a firearm, as alleged in the indictment, but you further find from the evidence, as viewed from the standpoint of the defendant at the time, that from the words or conduct, or both, of [Mario or Martin] Felan, or others acting with him, it reasonably appeared to the defendant that his life or person was in danger, and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of [Mario or Martin] Felan, or others acting with him, and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against [Mario or Martin] Felan's or others' acting with him use or attempted use of unlawful deadly force, he shot [Mario or Martin] Felan with a firearm, and that a reasonable person in the defendant's situation would not have retreated, then you should acquit the defendant on the grounds of self defense; or if you have a reasonable doubt as to whether or not the defendant was acting in self defense on said occasion and under the circumstances, then you should give the defendant the benefit of that doubt and say by your verdict not guilty.

(Emphasis added). When the court added the "verbal provocation" paragraph to the charge on self defense, it initially changed the relevant portion of the application paragraph to read, "from words and conduct, or conduct alone." However, Rivera objected that the change in the application paragraph was an improper definition of apparent danger, and the application paragraph was apparently submitted to the jury in its original form. No contradiction would have existed had the application paragraph been submitted as suggested by the court before Rivera's objection. Furthermore, Rivera did not object to the application paragraph as submitted. Finally, we fail to find any inherent conflict between the court's instruction on the law of self-defense and the

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application paragraph of the charge. Verbal provocation alone is insufficient to justify the use of force. // Nevertheless, when evidence is presented that the victim verbally threatened the defendant and that the defendant may have acted in self-defense, the defendant is entitled to a charge regarding verbal threats made by the victim toward the defendant. // In this case, however, Rivera neither objected that the "verbal provocation" instruction was not supported by the evidence, nor requested a charge on verbal threats. Because the court properly instructed the jury that "words or conduct, or both" may be considered by the jury, "together with all relevant facts and circumstances" on the selfdefense issue, we overrule points of error three and four. We affirm the judgment. BOBBY L. CUMMINGS Justice

Before Chief Justice Thomas, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed September 30, 1992 Do not publish

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