Caballero v. State

• Decision Date: 03 June 2021
• Docket Number: NUMBER 13-20-00109-CR
• Parties: ALEJANDRO CABALLERO, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

ALEJANDRO CABALLERO, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-20-00109-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 3, 2021

On appeal from the County Court at Law No. 5 of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Silva

Memorandum Opinion by Justice Silva

Appellant Alejandro Caballero appeals his conviction of deadly conduct, a Class A misdemeanor. See TEX. PENAL CODE ANN. § 22.05(a). By three issues, which we have rearranged, appellant argues (1) the evidence was legally insufficient to support his conviction, and the trial court erred in failing to include jury charge instructions on (2) jury unanimity and (3) the law of presumption. See id. § 2.05. We affirm.

I. BACKGROUND

At trial, complainant Javier McClain testified that on January 25, 2018, at approximately 4:30 p.m. in Harlingen, Texas, he was exiting the freeway onto the frontage road, preparing to turn onto Loop 499, when he observed a black Ford moving parallel to the freeway. McClain identified appellant in the courtroom as the driver of the black Ford. McClain testified that it did not appear that appellant would yield the right-of-way, so McClain sped up, and he was "at least two car lengths in front of [appellant's] car" when he merged onto the frontage road and pulled into a right-hand turning lane. After McClain turned, he moved into the left-hand lane and came to a stoplight. McClain then noticed appellant's vehicle "coming up on [him]" through his rearview mirror and stop on the median beside him. McClain testified:

I saw he had his window rolled down, so I rolled my window down, and I looked over and he had a gun . . . . I looked at the vehicle and I heard him say, "You stupid son of a," and he pointed the gun sideways, like they do on TV, at me[,] and he said, "I could have shot you for what"—"I could shoot you for what you did," and that's when I grabbed—my phone was sitting right there in the console. I grabbed it and I dialed 911 immediately.[¹]

McClain stated appellant then "took off through traffic." McClain later saw the same vehicle "pulled over in front of the Stripes on the side of the road," and he parked behind appellant's vehicle in an attempt to get license plate information. McClain testified that he was on the phone with the dispatch operator when he saw appellant step out of his vehicle. "As he's walking towards me, you know, I thought, 'I'm going to die,' because it looked like—I can't be positive—it looked like he had the gun in his hand as he's walkingtowards me . . . ." McClain stated appellant then unexpectedly "ran back to his vehicle, jumped in, and took off at a high rate of speed." McClain proceeded to follow appellant's vehicle before eventually losing appellant through traffic.

When asked why he chose to follow appellant if he feared for his life, McClain stated, "I was hoping that Harlingen [Police Department] would be able to show up and I—I could say which direction he was going and everything so that they could stop him and, you know—and arrest him for what he did." According to McClain, appellant had displayed a black, semiautomatic pistol, "like maybe a Glock or a Beretta," and "there was something shiny on the tip of it."²

During trial, McClain was questioned regarding his criminal history. McClain, a retired United States Marine and border patrol agent, was sentenced to the federal penitentiary on September 28, 2009, for possession with intent to distribute more than 1,800 pounds of marijuana. At the time of this incident, McClain was on federal probation.

Sergeant Pedro Ibarra with the Harlingen Police Department testified McClain claimed appellant pointed a black handgun with a "silver tip" at him and said, "You stupid son of a b-tch[;] I can shoot you for what you did back there." Ibarra testified that he found that the license plate information provided by McClain "came back to a company" out of St. Louis, Missouri. The vehicle had been issued to appellant, and the company provided Ibarra with appellant's current address and phone number. Ibarra called appellant, who denied any wrongdoing but agreed to provide a statement in the subsequent days. Ibarra received a call from appellant's attorney on the following Monday, indicating that appellant would be submitting a written statement.

Appellant's written statement was admitted at trial, and in it, appellant disclosed he had a recently-purchased "nine-millimeter pistol" in his possession at the time. Appellant stated that the gun had been "in the middle leather console in between the two seats of [his] vehicle," and he never "brandish[ed] the pistol or threaten[ed] to use it in any way against [McClain]." Ibarra testified he independently confirmed appellant had purchased a handgun at 4:08 p.m., shortly before the incident occurred.

Appellant also testified at trial. He stated he had purchased the gun as a surprise gift for his wife, he owned several handguns, and he had a concealed handgun license. As to his recollection of events, appellant testified:

There were two cars in front of me. And I noticed in my rearview mirror that this car is—this vehicle is speeding really fast in between the two vehicles. And he passes me and passed the car in front of me and does not stop at the stop sign and goes into this lane—the right lane to go towards the Loop. And I was just more like freaked out that he didn't even cause an accident. So I pull in and all of a sudden I find myself parked next to this guy who had just done that and he's shaking his steering wheel . . . . He's angry. He's really angry. I figured because he did all that and got stuck in traffic. I don't know. I don't know.

So he's looking at me all of [sic] because he sees that I'm looking at him[,] and he pointed at me. So at this point—I thought his window was rolled down because I have tint[,] and he didn't have tint. So I rolled my window down. His window starts to go down and that's when he—he goes, "What's your problem?" And I said, "My problem? You're the one that just cut the stop sign off back there. Some of us are trying to get home to our families."

And then he looked into my car. He's in a higher vehicle. He can look—really look—really look into my vehicle. And he asked me if I was a cop. He goes, "Are you a cop?" And I said, "No." That kind of like threw me off. I said, "No, I'm not." He said, "F off."

So at this point, I'm in the lane where—it's a third lane, but some people back it up a lot, especially in traffic. And the light to turn left turns green. I wanted to put—I was going to turn left to put gas in, but I figured after that—and I have a gun that's not loaded[,] and it's brand new. I have no way to protect myself. I'm not going to stop anywhere and give this guy a chance to come and confront me.

So right after that, I crossed the train tracks . . . . All of a sudden, this vehicle was behind me really close, so I pulled over to the shoulder, but as soon as I pulled up, it backed off. I wasn't sure if it was that same person or not.

So I got out of the vehicle to see if it was him[,] and I couldn't see because he was kind of far. I figured I was being paranoid. So I got back in my car and I started to go home. As soon as I got in my car, though, this vehicle started following me. So I kind of had more of a reason to believe it was him. So I turned right. He turned right. I turned right again. I sped up a little bit more. By the time I turned around, I didn't see him anymore.

Appellant testified he received a call from Ibarra a few days later and "went straight to the police department," but Ibarra was not available, and he was told by another detective to return on Monday. Appellant was thereafter advised by friends to hire a lawyer. Appellant repeatedly denied ever touching his handgun during the verbal exchange and said when he exited his vehicle near the Stripes, he had his cell phone in his hand, not a handgun.

On cross-examination, appellant was questioned as to why, if he had just purchased the handgun, he had not left the gun in the box instead of driving around with it resting on his vehicle console. Appellant stated he "believe[d] it was safe because it was not loaded[,] and it was trigger-locked."

A jury returned a guilty verdict, and the trial court sentenced appellant to twelve months in the county jail probated for fifteen months of community supervision. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Appellant first argues the evidence was legally insufficient to convict him of the offense of deadly conduct because the State failed to prove "the element of fear of imminent danger of serious bodily harm." See TEX. PENAL CODE ANN. § 22.05(a).

A. Standard of Review and Applicable Law

In reviewing the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We resolve any evidentiary inconsistencies in favor of the verdict, keeping in mind that the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. Id.; see TEX. CODE CRIM. PROC. ANN. art. 38.04. Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Metcalf v. State, 597 S.W.3d 847, 856 (Tex. Crim. App. 2020) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

Here, a hypothetically correct charge would instruct the jury to find appellant guilty of deadly conduct as alleged if appellant recklessly engaged in conduct that placed McClain in imminent danger of serious bodily injury. See TEX. PENAL CODE ANN. § 22.05(a). A person acts recklessly "when he is aware of but...