Fino v. State, 05-17-00169-CR
| Decision Date | 13 August 2018 |
| Docket Number | No. 05-17-00169-CR,05-17-00169-CR |
| Parties | MANUEL FINO, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Myers
A jury convicted appellant Manuel Fino of murder and assessed punishment at thirty years' imprisonment. Appellant brings twelve issues in this appeal contending the trial court erred in failing to instruct the jury that it must unanimously reject sudden passion; the trial court erred in rejecting his Batson challenge; the evidence was insufficient to disprove self-defense and defense of another; the jury's rejection of sudden passion is not supported by legally or factually sufficient evidence; the trial court erred in failing to instruct the jury that it could consider the prior relationship between appellant and the deceased in determining whether appellant acted in self-defense and defense of a third party; the trial court erred in failing to conduct a hearing on his amended motion for new trial; and the court violated appellant's statutory and constitutional rights by admitting appellant's involuntary videotaped statements. We affirm.
Appellant was indicted for murder. The indictment against him alleged as follows:
The evidence at trial showed that the deceased, Vega, eighteen years old at the time of his death, and appellant, then twenty-two years of age, were well acquainted. They attended middle school together and had mutual friends. Vega also had been involved in a relationship with appellant's sister, Eileen Gonzalez, who was the mother of his child. Witnesses testified that Vega had a short temper and was prone to verbal outbursts, and that he had a history of making threats against appellant and members of appellant's family.
On April 16, 2016, at around 1:00 p.m., appellant called a childhood friend, Ethan Bishop, and asked him to come outside. Appellant sat on the tailgate of Bishop's truck and informed him that he wanted to fight Vega. Appellant then placed a telephone call to Vega. At the time appellant placed that phone call to Vega, Vega was driving around in his car with David Palafox. Palafox testified that the tone of the phone call between appellant and Vega was aggressive. Bishop overheard appellant telling Vega that "you don't know who you're fucking with," and Bishop thought that appellant said this a couple of times. The phone call lasted less than two minutes.
Sometime after that phone call ended, Vega's car pulled up in front of Bishop's house. When Vega arrived, Bishop thought he was about to witness a fist fight between appellant andVega. Bishop and appellant were still sitting on the tailgate of Bishop's truck when Vega and Palafox parked the car. Bishop went inside his home "[t]o get some food," intending to "quickly come out just to see the fight."
Appellant approached the driver's side of Vega's car and touched the car. Appellant and Vega engaged in what sounded like a "normal conversation," according to Palafox. Appellant then pointed a gun at Vega's head and shot him repeatedly at point-blank range. Vega was shot a total of six times, and died at the scene. Additional shots struck and injured Palafox. As Palafox was shot, he jumped out of the passenger side of the car, laid down, and called for help. Appellant ran around the car and pointed the gun at Palafox's head, inches from his face. Palafox begged appellant not to shoot him. Appellant ran from the car toward his house. Palafox survived but sustained serious injuries and was hospitalized for over a month.
Police and emergency services personnel soon arrived. When Detective Joshua Stelter of the Grand Prairie Police Department arrived on the scene, he moved in an easterly direction from the shooting location to establish a perimeter. As he set out, the detective saw appellant come out of his home at the 300 block of West Cober Street, where he lived with his family, with his hands above his head and approach Stelter. The detective detained appellant and placed him in the back of his patrol car.
Appellant admitted to the shooting and described it in detail, demonstrating to the police how he pointed the gun at Vega. He told the police he shot Vega because he was angry with him for threatening to rape appellant's niece (who was Vega's daughter) and that the decedent threatened to have some cartel members come over and shoot him. Appellant said he did not see any guns in Vega's car prior to shooting him, and neither Vega nor Palafox had a weapon.
In his first issue, appellant contends the trial court failed to properly instruct the jury at punishment that it must unanimously reject sudden passion.
At the punishment stage of a murder trial, the defendant may raise the issue as to whether he caused the death "under the immediate influence of sudden passion arising from an adequate cause." TEX. PENAL CODE ANN. § 19.02(d) (); Beltran v. State, 472 S.W.3d 283, 289 (Tex. Crim. App. 2015); Wooten v. State, 400 S.W.3d 601, 605 (Tex. Crim. App. 2013). The jury's finding on the issue of "sudden passion" must be unanimous. Sanchez v. State, 23 S.W.3d 30, 33 (Tex. Crim. App. 2000). That is, the jurors must agree that the defendant either did or did not act under the immediate influence of sudden passion arising from an adequate cause. Id. If there is no unanimous agreement on the issue of sudden passion, the trial court must declare a mistrial. Id.
The trial court's charge during punishment instructed the jury in part as follows:
Toward the end of the charge, the court reminded the jurors that "[y]our verdict must be unanimous and shall be arrived at by due deliberation and not by majority vote or by any method of chance." The punishment charge included a "Verdict Form on Special Issue" that read: "Do you, the jury, unanimously find by a preponderance of the evidence that the defendant caused the death of JesusVega under the immediate influence of sudden passion arising from an adequate cause?" The jury was told to answer either "We do" or "We do not," and was provided a space for doing so. On the next page of the charge, the verdict form included two options, one giving the jury the option of unanimously assessing a first-degree felony punishment; the other a second-degree felony punishment. See TEX. PENAL CODE ANN. § 19.02(d). Although the jury did not fill in the blank on the special issue verdict form, it completed the verdict form for a first-degree felony punishment, as follows:
We, the jury, having previously found the defendant guilty beyond a reasonable doubt of the offense of Murder and having made a negative finding on the special issue, unanimously assess his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for 30 years [Note: Here enter no less than 5 and up to 99 or life] and a fine of $ none [Note: here enter an amount not to exceed $10,000 or write the word "none"].
The verdict form was signed by the presiding juror. By choosing the verdict form for first-degree felony punishment rather than the verdict form for second-degree felony punishment, the jury impliedly made a negative finding on the special issue on sudden passion.
Appellant argues the trial court erred because the specific provisions of the jury charge regarding sudden passion did not explicitly require a unanimous verdict on the issue. Appellant faults the trial court for including only a "general statement regarding unanimity in the body of the punishment charge." He also contends the verdict forms on sudden passion were erroneous because they did not require the jurors to indicate they unanimously rejected sudden passion.
We review jury charge error using a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). We determine whether error exists in the charge and, if there is error, we review the record to determine whether sufficient harm was caused by the error to require reversal of the conviction. Id. Unobjected-to jury charge error such as this will not result in reversal of a conviction in the absence of "egregious harm." Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (); see also Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App. 2006).
Appellant cites our opinion in London v. State, 325 S.W.3d 197, 207 (Tex. App.—Dallas 2008, no pet.), which...
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