Barrios v. State

• Decision Date: 14 December 2012
• Docket Number: No. 06–11–00099–CR.,06–11–00099–CR.
• Citation: 389 S.W.3d 382
• Parties: Lidio BARRIOS, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

389 S.W.3d 382

Lidio BARRIOS, Appellant

v.The STATE of Texas, Appellee.

No. 06–11–00099–CR.

Court of Appeals of Texas,

Texarkana.

Submitted: Sept. 26, 2012.

Decided: Dec. 14, 2012.

Ebb Mobley, Longview, for appellant.

Zan Colson Brown, Asst. Dist. Atty., Longview, for The State of Texas.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

An evening in January 2010 proved, again, that gang affiliation, alcohol, and firearms can be a deadly combination. That evening, Lidio Barrios shot and killed Jorge Rivera, reportedly in the process of trying to defend Barrios' cousin Juan from Rivera's attack. Barrios appeals from his resulting murder conviction and his sentence of thirty years' imprisonment. We affirm the trial court's judgment, contrary to Barrios' assertions on appeal, because we hold that (1) Barrios was not entitled to a jury submission on self-defense, (2) failure to submit a jury issue on defense of a third person was harmless error, and (3) Barrios was not entitled to jury issues on the lesser-included offenses.

According to Officer Lannie Smith, Jr., members of the Barrios family are affiliated with the Puro Carnales (PC) gang. Their rivals are members of the Corona family, who are known to have gang affiliations with Sur 13, also known as the Sur Treces gang. Both gangs wear blue to signify membership. As explained by known PC gang member Juan Barrios,¹ he has issues with the Coronas, and they have issues with him. These issues would lead to arguments, throwing of projectiles, and display of gang signs.²

On the day of the incident, Juan had driven his navy blue Lincoln, carrying his father, Leonardo, and friend, Frank Arias, to his uncle Roberto's home to cook out, drink, and shoot weapons that included a Model 88 twelve-gauge shotgun manufactured by Maverick Firearms. On their return trip home, Juan drove the car, Leonardo sat behind him, Arias sat in the front passenger seat, and Barrios sat behind Arias. The unloaded shotgun was located on the floorboard in the back, along with a box of unused shotgun shells manufactured by Winchester in East Alton, Illinois. They detoured to pick up more beer and found themselves on the street where known Sur Treces gang member Antonio Corona lived.³

Reportedly, Juan was unaware that Hector Corona and his brother, Juan Martin Corona Flores,⁴ had been called into action earlier that day by their cousin, Rivera, who claimed that the Barrioses hurt him and “threw something [at] the car” Rivera was driving. The trio climbed into Rivera's red Lincoln and drove to the Barrios home. Because no one answered the door, Hector, Martin, and Rivera had decided to return to Hector's apartment when they “ran into [the Barrioses] head-on” by Antonio's home. The red Lincoln pulled in front of Juan's blue Lincoln in the middle of the road, blocking the Barrioses' path. Martin testified, “[W]e stopped, they stopped.”

The encounter began when Rivera exited his car holding a twenty-four-inch long metal breaker bar to talk to the Barrioses, with Martin and Hector in tow. There was testimony, including Martin's, that the breaker bar was capable of being used as a deadly weapon. Martin explained that, “in that moment, we're—we're angry.” Arias testified he was scared, and Barrios said, “[A]t that moment I spooked, I—because I didn't know what was happening.” Rivera went to the driver's side of the Barrios car towards Juan; Hector walked to the rear, driver's side passenger window where Leonardo sat; and Martin placed himself outside of the front passenger window close to Arias. The positioning of each person involved in the incident is indicated below:

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Leonardo stepped out of the car to talk to Rivera and Hector in an attempt to calm them down.⁵ Leonardo testified that Rivera was angry, was holding the breaker bar up with both hands “[l]ike he was going to hit the car,” and said “that we had thrown some bottles at his car.” Leonardo did not know if the upset Rivera “wanted to hit my son Juan or my car.” He told Leonardo that he could “go ahead and break the window in our car if you want.” Rivera was attempting to open Juan's door, but was unsuccessful.

During this time, Martin said he asked Arias “[w]hy they were hurting my cousin,” while Arias testified Martin “came and said what was my problem,” while looking angry. Arias believed “[b]ecause [Martin] came to my side, ... I thought he was going to do something to me.” He claimed, “[I]n his tone he was trying to ... I guess he was trying to fight me or something.” Martin “put his hand in the car and unlocked the doors” and opened Arias' door.

Barrios took the stand and testified:

I only saw when [Rivera] wanted to open Juan's door, but he wasn't able to open it. And that's when Leonardo asked him why he was so angry. And he said that something has been thrown to him. And Leonardo said, “If you're sure that we have thrown something,” for him to break a window. He said no, that he wanted Juan.⁶ And in that, he opened the door. He wanted to get him out. And when I saw he was wanting to get him out, I remembered that I had the-the weapon. I picked it up from bottom. It was empty, so I–I slid it.

Barrios believed that Rivera, Hector, and Martin would run when they saw him loading the weapon. But when the car doors were unlocked by Martin, Rivera opened Juan's driver's side door all the way and stood in between Juan and the door. Barriostestified Rivera called out to Martin to bring Rivera's weapon.

Then Barrios, who testified he had consumed twelve to fourteen beers, decided to react.⁷ He placed “four or maybe three” shells into the gun and told Rivera “to leave, that we didn't want any problem. And he—he said no, that he had a problem from the past Friday.” ⁸ Juan testified he leaned into Arias' seat because Rivera lifted the metal breaker bar as if to hit him. Leonardo stated it “seems like he threw it,” and Barrios also believed Rivera was going to hit Juan with the bar.⁹ Barrios stated, Rivera “bends down, looking at Juan.... It—and the same time he wants to hit Juan, he looked over to see me. And that's when I pulled it.” Rivera was shot in the face. Barrios testified that he was aiming to hit Rivera in the hand, but missed when Rivera bent down.¹⁰

Martin, Juan, and Leonardo all testified that there was no reason for Barrios to shoot Rivera. Barrios told the jury that he did not know Rivera, had no intent to kill him, and was sorry that he had died. Barrios explained that he was only trying to protect Juan.

After the first shot, Juan bolted from the driver's seat, stepped over the fallen Rivera, and ran. Frank exited the passenger seat and ran. Barrios yelled to Leonardo to grab the gun so he would not “do anything else.” Leonardo testified, “One time I got the weapon, but I wasn't able to take it away from him,” so he ran from the scene as well. This prompted a scuffle for the weapon. Barrios testified he shot another round into the air after Hector tackled him inside of the car. Neighbors, including Antonio, approached from their houses to investigate.

A baseball bat was also in the backseat of Juan's vehicle. Barrios said Martin and Hector forced him out of the car and beat him with the baseball bat. Martin explained, “[W]e were trying to take the pistol away from him, and he was still shooting at my brother here like to the back; and he was still shooting people.” Antonio testified, “I saw people running, and I got close. That's when I saw my cousin grabbing the weapon from him. And my other cousin was trying to take the—the pistol.” After the shotgun was retrieved, Antonio, Hector, and Juan detained Barrios while police were called.

Officer Brandon Thornton responded to the 9–1–1 call. He “noticed a Hispanic male was lying on the ground ... at the driver's door, ... and he looked like he had a gunshot wound to his head or to his facial area.” Officer Christopher Sheain observed that Rivera was lying next to a metal breaker bar and that no part of his body was in the car. The breaker bar was underneath “the front left door of the driver's door.”

Thornton heard a “disturbance” and saw “several people holding down another Hispanic male. All I remember hearing was, ‘He's the shooter. He's the shooter. He shot the other guy.’ ” Officer James Bettis testified, “Antonio Corona came up to me, holding the shotgun, and advised that this was the weapon that was used, and I took possession of it.” Detective Jimmy Redmon retrieved the baseball bat which was “laying out in the front yard” of Antonio's neighbor's home. Specks of blood were located around the bushes. Officers noticed that Barrios, when taken into custody, was bleeding from wounds suffered to his head. Detective Chris Taylor testified that Barrios had “some small abrasions to his leg, shoulder, back and head. The laceration on the back of his head was shedding blood,” and he had bruises all over his body.

Barrios was transported to the emergency room. He told nurse Hector Hernandez “he had been beaten by—with a baseball bat; he couldn't tell me who did it.” Barrios had “a lot of bruising and lacerations to his head [,] ... [a]nd he did complain of a major headache and also some flank pain, the right side. And I think—his right leg, he was complaining.” Staples were used to repair the laceration on Barrios' head. Hernandez testified that Barrios “did definitely smell of alcohol.” Barrios told Hernandez that he had consumed “24 beers to drink that day,” although he claimed at trial that he consumed only twelve to fourteen beers. Officer Eric Hewitt opined that Barrios was intoxicated to the degree that he could not stand without assistance, but testified that his condition could also have been caused by the beating he endured and pain medication administered at the hospital.

According to Redmon's investigation, “it appeared the victim was standing in the ‘V’ of the open front and rear door on the left side of the vehicle...