Lasaro Zavala Lujan 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: 10-92-00253-CR

Case Date: 08/25/1993

Plaintiff: Lasaro Zavala Lujan

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

Preview:Lasaro Zavala Lujan v. The State of Texas--Appeal
from 54th District Court of McLennan County
IN THE
TENTH COURT OF APPEALS
No. 10-92-253-CR
LASARO ZAVALA LUJAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 92-211-C
O P I N I O N
On December 7, 1991, Lasaro Lujan fatally shot Arturo Pena in the head, apparently over their differences about a
woman, Patina Pasco. The jury found Lujan guilty of murder and assessed his punishment at seventy-five years in
prison and a $10,000 fine. Two essential questions must be answered. First, did the evidence raise sudden passion? We
hold that it did and that Lujan was entitled to a Cobarrubio-charge. See Cobarrubio v. State, 675 S.W.2d 749, 751 (Tex.
Crim. App. 1983). Second, did Lujan suffer egregious harm when the court failed to give that charge? See Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (on rehearing). Finding no egregious harm, we will affirm the
conviction.
COBARRUBIO
To understand the holding in Cobarrubio and the basis for finding no reversible error in this case, one must first
consider the distinction between murder and voluntary manslaughter:
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"A person commits [murder] if he: (1) intentionally or knowingly causes the death of an individual . . .                 ."
See Tex. Penal Code Ann. 19.02(a)(1) (Vernon 1989).
"A person commits [voluntary manslaughter] if he causes the death of an individual under circumstances that would
constitute murder . . . , except that he caused the death under the immediate influence of sudden passion arising from
an adequate cause."
See id. 19.04(a) (emphasis added).
The Court of Criminal Appeals examined the "nature" of sudden passion in Braudrick v. State, 572 S.W.2d 709, 711
(Tex. Crim. App. 1978):
We therefore hold that causing death "under the immediate influence of sudden passion arising from an adequate
cause" is in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary
manslaughter, and that the State need not prove such influence beyond a reasonable doubt to establish voluntary
manslaughter, but that if raised by the evidence [the State] must prove the absence of such influence beyond a
reasonable doubt to establish murder.
(Emphasis added).
In Cobarrubio, the Court reaffirmed the Braudrick characterization of sudden passion as being in "the nature of a
defense to murder" // and then added this requirement regarding the charge on murder:
With the nature of the "element" of "sudden passion" in mind, it becomes apparent not only that the burden of proving
the lack of sudden passion must be placed upon the prosecution, but also that this burden must be so placed in the
paragraph of the charge applying the law of murder to the facts of the case.
Cobarrubio, 675 S.W.2d at 751 (emphasis added).
Consequently, if the state obtains a murder conviction, the threshold inquiry on appeal is whether the evidence raised
sudden passion. If it did, then the application paragraph on murder must require the jury to find beyond a reasonable
doubt that the defendant acted without such influence. Id.
SUDDEN PASSION
Section 19.04 of the Penal Code, which defines voluntary manslaughter, provides:
(b) "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or
another acting with the person killed which passion arises at the time of the offense and is not solely the result of
former provocation.
(c) "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a
person of ordinary temper, sufficient to render the mind incapable of cool reflection.
Tex. Penal Code Ann. 19.04(b), (c). Evidence from any source, regardless of whether it conflicts with other evidence
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or is of doubtful credibility, will raise sudden passion. Schoelman v. State, 644 S.W.2d 727, 732 (Tex. Crim. App.
1983) (citing and quoting Moore v. State, 574 S.W.2d 122, 124 (Tex. Crim. App. 1978)).
BACKGROUND
Lujan had dated Pasco from March to June 1990. In January 1991 Pasco began living with Pena, and they were still
together when Lujan killed Pena on December 7, 1991.
FIRST ALTERCATION
Several months prior to Pena's death, Lujan and Pena had an altercation at Pasco's home. According to Lujan, he was
at Pasco's house drinking coffee when Pena drove up. Pasco told Pena to leave. He left but apparently came back
several minutes later. As Lujan walked out of the house, he and Pena began fighting. Pena stabbed Lujan in the
forearm. One of Pasco's sons intervened and threatened Pena with a board. Lujan left and ultimately went to the
hospital for treatment.
SECOND ALTERCATION
On December 7, 1991, Pasco, Pena, and Joe Vela were at Gloria Trevino's home. While they were playing dominoes,
Pena ran out of cigarettes and went with Pasco to a store to get more. Upon returning, they found Lujan and several
friends, including Vela, standing by a car in front of Trevino's house. Pasco and Pena then went inside the house. Vela
entered the home several minutes later and told Trevino that he was going with Lujan to get some beer. Pena told Vela
that, if he was not going to stay with them, Pena would leave. Pena, Pasco and Trevino followed Vela outside. Pena
and Pasco stayed on the porch while Trevino and Vela walked toward the street. At some point Pena left the porch and
went to the side of the house; Pasco followed. As they were walking, Pasco saw Lujan running across the yard towards
Pena, yelling at him and holding a gun. He hit Pena with the gun and then shot him. Pasco ran to her home to call 9-1-
1. While running, she heard a second shot being fired. When paramedics arrived at the scene a short time later, they
saw a knife on the ground near where Pena was lying.
Raul Trevino, Gloria Trevino's son, was also present when the shooting occurred. He testified that Lujan asked Pena,
"Are you ready to die?" He saw Pena's lips moving but did not hear what he said. After Lujan shot Pena, Raul saw
Lujan kick him and say, "Now talk, you mother fucker." He saw Lujan fire another shot into the ground. Raul said that
Pena appeared to be "steamed" and that Lujan was cussing him as they walked toward each other.
According to Gloria Trevino, when she, Vela, Pasco, and Pena first walked outside her house, Pena asked Lujan,
"What was your problem the other day, with you honking and smiling and stuff?" Gloria said that Pasco then
commented, "Don't bother, he [i.e., Lujan] ain't with his [mamma]." Trevino then saw Lujan take a gun from Eddie
Lujan and start toward Pena. While approaching him, she heard Lujan say, "Are you ready to die, mother fucker, are
you ready to die?" After he shot Pena, she saw Lujan kicking him, saying, "Now talk mother fucker, now talk."
Raymond Lopez, a friend of Lujan's, and Lujan both testified that Pena had his hand behind his back as came out into
the yard. Vela also said that Pena had a knife in his hand. Lopez and Vela also stated that Pena and Lujan were
arguing with each other when Pena and Pasco returned from the store and when Pena left the house and entered the
yard.
According to Lujan, he saw Pena come outside and stand on the porch with his hands behind his back, looking towards
Lujan. Lujan said that Pasco came out and grabbed Pena, telling him not to start any trouble. After Pena looked out a
second time, Lujan told Vela that he was going to leave because Pena was acting crazy. Vela walked inside, apparently
to tell his friends that he was going with Lujan. When they came out of the house the last time, Pasco was cussing at
Lujan and telling him not to wave at her. Pena joined in, and told Lujan, "I done showed you once." Pasco kept telling
Lujan that he "thought he was bad" because he was with his friends. Lujan said she also told him that he "didn't do
nothing when Arturo [Pena] stabbed him before."
According to Lujan, Pena walked towards him, saying, "[C]ome on get you something." Lujan then started toward
Pena. He saw Pena's hand behind his back, and then saw Pena display a knife. As he backed up, Lujan said someone
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handed him a gun. Lujan said that Pena lunged toward him in an apparent attempt to stab him. When he did, Lujan
said he moved backwards and the gun "went off." Lujan claimed that he did not intend to shoot Pena but said that the
gun discharged accidentally. Lujan said he knew Pena was dangerous because he had shot another person, and he also
considered him to be violent.
SUDDEN PASSION RAISED
There is evidence that, just before he was killed, Pena taunted Lujan about their earlier altercation that resulted in
Lujan's stabbing: "I done showed you once." So did Pasco: "[He] didn't do nothing when Arturo stabbed him before."
All of these taunts were delivered in front of Lujan's friends. Moreover, there is evidence that Pena and Lujan were
cursing each other just before the shooting. That their words and taunts had enraged Lujan and provoked the killing is
best illustrated by his kicking of Pena after shooting him and by these words spoken over Pena's body: "Now talk,
mother fucker, now talk."
Acts of former provocation, considered alone, will not raise sudden passion; they can be used, however, to provoke or
intensify sudden passion arising at the time of the killing. Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App.
1983). Provocation can emanate from someone other than the deceased, as long as that person is "acting with the
person killed." Tex. Penal Code Ann. 19.04(b); Havard v. State, 800 S.W.2d 195, 215 (Tex. Crim. App. 1989).
Considering their taunts, Pasco was clearly "acting with" Pena. Lujan's claim that the gun discharged accidentally and
that he did not intend to shoot Pena did not automatically preclude sudden passion being raised by other evidence. See
Schoelman, 644 S.W.2d at 731, n.11. The evidence is sufficient to raise sudden passion.
ERROR IN THE CHARGE
Lujan's first point is that the murder charge is defective under Cobarrubio. See Cobarrubio, 675 S.W.2d at 751. The
court submitted this charge without any objection from Lujan:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 7th day of December, 1991, in
McLennan County, Texas, the defendant, Lasaro Zavala Lujan, did then and there intentionally with the intent to cause
serious bodily injury to Arturo Pena, also know as Arthur Pena, commit an act clearly dangerous to human life,
namely shoot the said [Arturo] Pena, also known as Arthur Pena with a deadly weapon, to-wit: a firearm, which
caused the death of Arturo Pena, also known as Arthur Pena, then you will find the defendant Lasaro Zavala Lujan,
guilty of the offense of Murder, as alleged in the indictment.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant
of murder, and next consider the offense of Voluntary Manslaughter.
The instruction carries the Cobarrubio error it fails to require the State to prove beyond a reasonable doubt that Lujan
acted without sudden passion. See id. Thus, "there exists a decided likelihood that a jury would affirmatively answer
the murder paragraph, never having considered the defensive issue of sudden passion which would reduce the offense
of murder to the lesser included offense of voluntary manslaughter." See id. at 752.
HARM ANALYSIS
Cobarrubio error is treated like any other error in the charge; it is governed by Almanza. Ruiz v. State, 753 S.W.2d
681, 684 (Tex. Crim. App. 1988); Almanza, 686 S.W.2d 157. Because there was no objection to the error in the charge,
Lujan must show "actual egregious harm" i.e., that the error in the charge deprived him of a fair and impartial trial.
See Ruiz, 753 S.W.2d at 683; Almanza, 686 S.W.2d at 171. We will examine the entire charge, arguments of counsel,
and the evidence to determine whether the error in the charge deprived Lujan of a fair and impartial trial. See id.
VOIR DIRE
Beginning with voir dire, the State emphasized that "this is a murder case." The prosecutor never mentioned voluntary
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or involuntary manslaughter, except in a brief comment on the range of punishment i.e., murder is punished by 5 to 99
years or life, voluntary manslaughter from 2 to 20 years, and involuntary manslaughter from 2 to 10 years. In fact, the
only questions asked of prospective jurors individually were whether a juror could assess the maximum punishment
for murder and whether any panel member had ever been arrested.
During voir dire, the defense admitted that Lujan killed Pena but pointed out that not every killing is murder:
"[S]ometimes the law says that a killing is not murder . . . `There's a defense to murder, and that's called self-defense.'
And I'm going to tell you right now that that's what I expect to put on, is a self defense [to] the crime of murder."
Defense counsel told the panel that the charge would likely contain an instruction on self-defense and that the
instruction would require the jury to view events as they developed from Lujan's perspective. Like the prosecutor,
defense counsel made only a passing reference to lesser-included offenses and then only in the context of illustrating
that the law will be found in the charge:
If the State can prove certain things, then they prove murder. . .                                                             . [M]aybe we didn't have the right elements to make a
murder, but we might have the right elements to make a voluntary manslaughter. If that's the case, then the Court's
charge is going to contain those elements. . .                                                                                 . The law is going to come from the Judge and the Court's charge.
Considering the voir dire, Lujan made self-defense the centerpiece of his trial strategy from the outset, and lesser-
included offenses were given only passing mention by both parties.
JURY ARGUMENTS
The charge contained, in this sequence, an abstract instruction and an application paragraph on murder; an abstract
instruction on voluntary manslaughter including definitions of "sudden passion" and "adequate cause" followed by an
application paragraph on voluntary manslaughter; next, an application paragraph on involuntary manslaughter preceded
by an abstract instruction on that offense; and, finally, a comprehensive instruction on self-defense followed by a
paragraph applying the law of self-defense to the facts.
Judging from the jury arguments on guilt-innocence, the evidence and the construction of the charge had little effect
on the parties' overall emphasis and trial strategy as stated during voir dire. The State was still insisting in its opening
argument that "It was not self-defense it was murder." Lujan likewise continued to dwell on self-defense as the
distinction between a justifiable killing and the offenses covered in the charge:
[T]here is a defense for murder. There is a defense for voluntary manslaughter, and a defense to involuntary
manslaughter, and that's self defense. . .                                                                                     . This [charge] tracks the offenses, so you've got to believe, beyond a
reasonable doubt, that Mr. Lujan intended to kill him or cause serious bodily injury in order to have murder. If he
didn't intend to do that, then you don't have a murder . . . you don't have a voluntary manslaughter, either, because the
[difference] between a voluntary manslaughter and a murder is sudden passion. . .                                              . The [difference] between those and
the third one [i.e., involuntary manslaughter] is "recklessly." . . . [I]f you don't believe his defense about self defense,
and if you don't believe that it was an accidental killing, [as Lujan claimed in his testimony,] then under the Court's
charge, the only one you could convict him of . . . would be involuntary manslaughter, as opposed to murder, or
voluntary manslaughter.
After making these cursory references to murder and the lesser-included offenses in the charge, defense counsel
returned to the issue of self-defense, using four pages in the record to discuss a person's duty to retreat before using
deadly force.
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Lujan's counsel then discussed in sequence the various instructions in the charge:
I want you to go to the portion that talks about murder. . .                                                                       . The Court's charge will define for you what it means to
intend . . .                                                                                                                       . Serious bodily injury is also defined . . .               . Please follow that. The next thing talks about voluntary
manslaughter, and voluntary manslaughter means murder plus sudden passion. And the Court's charge will go on for
that. And it will tell you what sudden passion means. Please pay attention to that. One of the things I want you to pay
attention about when you get to sudden passion is, it says, "Sudden passion means passion directly caused or caused by
the provocation of the individual killed, Arturo Pena, or [another's] action, which passion [arises] at the time of the
offense and is not solely the result of former provocation." In other words, if there is part of this sudden passion that
came up because of prior dealings between the two, in other words, the stabbing, where Arturo Pena had stabbed
[Lujan], and there are other elements including the fact that [Lujan] testified, "I know Arturo to be a dangerous person.
I know that Arturo Pena shot at least one person prior to this, and I was afraid of him.["] . . . It goes on to say adequate
cause means cause that would commonly produce a degree of anger or terror. Now, if you're faced, nose to nose, with
somebody who has stabbed you before, and you know has shot somebody before, are you going to be calm or are you
going to be terrified? I submit to you that any one of you twelve, any reasonable person would be scared to death in
that situation, when you realize the man you're looking at has got . . . a knife in his hand.
Involuntary manslaughter talks about recklessly . . . [I]f you find from the evidence that there is no self-defense claim, .
. . [or if you say,] "I don't buy for a minute that it was just an accident. I think he should have never brought the gun up
there in the yard. I think that was a reckless act" . . . then that is recklessly, and recklessly is defined in [its] own little
definition here.
(Emphasis added).
Although appearing at first to be a discussion of voluntary manslaughter as a viable lesser-included offense to murder,
the italicized portion of the argument quoted above gains its true perspective when Lujan's counsel immediately turns
to a "critical" point i.e., that the jury must view Lujan's right to use deadly force from the defendant's perspective.
According to his counsel, Lujan could say, "I know that Arturo's violent. I knew that he hurt me. I knew that he shot
somebody else, and I knew him to be a violent person." Counsel then briefly reviewed the evidence indicating that
Pena had a knife, that a knife was found near Pena's body, and that shortly before the shooting Pena gave Lujan a
"mean look." Thus, the defense's "critical" point reveals the true purpose of the comments relating to voluntary
manslaughter they were a justification for self-defense. With its true purpose exposed, the italicized argument is seen
as a continuation of the defense's main thrust: Lujan had every right, because of Pena's reputation for violence and the
prior stabbing, to be terrified of him and to use deadly force to defend himself.
In his closing argument, the prosecutor returned to the overriding theme of the State: It was murder, not self-defense.
He reminded the jury that there was evidence the fatal bullet was fired at close range, which supported two witnesses'
testimony that Lujan ran up to Pena, put the gun to Pena's head, and fired. This evidence, the prosecutor argued,
showed that Lujan intended to kill Pena. Finally, the State concluded with an attack on the defense's contention that
Lujan, if guilty at all, is guilty of anything but murder: "You know, [defense counsel says,] try to look at self defense,
but if you don't do that, let's go for involuntary manslaughter, and if not that, let's go for voluntary."
VOLUNTARY MANSLAUGHTER AN "INCIDENTAL THEORY"
Cobarrubio error will not result in egregious harm when voluntary manslaughter is only an "incidental" theory of
defense. Goff v. State, 720 S.W.2d 94, 99 (Tex. Crim. App. 1986); Lawrence v. State, 700 S.W.2d 208, 213 (Tex.
Crim. App. 1985).
One cannot ignore the prosecution's single-minded and consistent adherence to its theme, not only during voir dire but
in the presentation of evidence and in its argument on guilt-innocence "It is murder, not self-defense." Not once did it
"hedge its bet," so to speak, with any suggestion that the jury might convict Lujan of a lesser-included offense.
Although the prosecution made a passing reference to voluntary and involuntary manslaughter, it did so only in
connection with the range of punishment for the various types of homicide. Judging from the record as a whole, the
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State elected to stand or fall on whether the jury believed the killing was murder or self-defense.
Nor did Lujan ever compromise his primary defense that he acted in self-defense by suggesting a conviction on
voluntary manslaughter. He never explicitly argued that he acted in sudden passion arising from an adequate cause.
Viewing the entire record, one cannot escape the conclusion that self-defense was the primary defensive theory and
that voluntary manslaughter, whenever it was mentioned at all, was the subject of only perfunctory comments. If
voluntary manslaughter was something other than an incidental theory of defense, surely one would expect to find a
separate, identifiable plea that Lujan be convicted of the lesser offense. What follows is the only argument by the
defense that remotely approaches a plea for a conviction on a lesser-included offense: "If you don't believe his defense
about self defense and if you don't believe that it was an accidental killing, [as Lujan claimed in his testimony,] then
under the Court's charge, the only one you could convict him of . . . would be involuntary manslaughter, as opposed to
murder, or voluntary manslaughter." This glancing reference to the lesser-included offenses immediately follows a
comment that self-defense is a defense to murder as well as to the lesser-included offenses contained in the charge.
Based on the entire record, the omission of the instruction on sudden passion from the charge on murder was not so
egregious as to deny Lujan a fair and impartial trial. See id. Accordingly, we overrule point one.
IMPROPERLY ADMITTED EVIDENCE
In his second point, Lujan argues that the court erred in prohibiting him from testifying about the details of his prior
conviction "where the prosecutor opened the door by asking Appellant to tell the jury about his arrest." On cross
examination, the prosecutor asked Lujan about the day that he was arrested for Pena's murder:
Q Let's go about ten days from the shooting on December the 7th, 1991, to December 17th, 1991. Do you remember
that day?
A Yes, sir.
Q What happened on that date? Tell the jury.
A I was stopped in LaSorita checkpoint for possession of marihuana.
Q Well, I don't know anything about that.
A Wait, what day did you say, sir?
Q December 17, 1991. Ten days after the shooting.
A Oh, after -- I'm sorry.
Q Well, why don't you tell them about being stopped for marihuana.
A Well, I was -- I was living -- I was working in South Texas at that time.
Q Okay. Now, let's go to December 17, 1991.
The defense attorney then objected, and the objection was overruled.
To preserve a complaint regarding the improper admission of testimony, an objection to testimony must be urged at
the earliest opportunity. Hernandez v. State, 805 S.W.2d 858, 860 (Tex. App. Corpus Christi 1991, no writ); Tex. R.
App. P. 52(a); Tex. R. Crim. Evid. 103(a)(1). Lujan did not object until after the question regarding the marihuana stop
was asked and answered and the prosecutor asked the next question. Because Lujan did not object immediately after
the prosecutor asked about the marihuana, he waived any complaint for appellate review.
Even if the court committed error by excluding the testimony, Lujan did not preserve his complaint because he made
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no bill of exception revealing what the excluded testimony would have been had the court allowed such questions. See
Tex. R. Crim. Evid. 103(a)(2); Brown v. State, 750 S.W.2d 340, 341 (Tex. App. Beaumont 1988, no writ). We overrule
point two. Affirmed.
BOB L. THOMAS
Chief Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed August 25, 1993
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