Lerma v. State
| Decision Date | 07 February 1991 |
| Docket Number | No. B14-89-770-CR,B14-89-770-CR |
| Citation | 807 S.W.2d 599 |
| Parties | Arthur LERMA, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Terrence Gaiser, Houston, for appellant.
Kelly McClendon, Angleton, for appellee.
Before PAUL PRESSLER, JUNELL and ELLIS, JJ.
Appellant, Arthur Lerma, appeals his judgment of conviction for the offense of involuntary manslaughter TEX.PENAL CODE ANN. § 19.05 (Vernon 1989). Appellant had originally been indicted for murder TEX.PENAL CODE ANN. § 19.02 (Vernon 1989). The jury rejected appellant's not guilty plea, finding him guilty of involuntary manslaughter. The trial court assessed punishment at confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice. We reverse and remand.
By two assignments of error, appellant complains: (1) the trial court erred in refusing appellant's request for a charge on self-defense against multiple assailants; and (2) the trial court committed reversible error in overruling appellant's objection to the charge for its failure to charge on the law of self-defense against multiple assailants. We consolidate both points of error in our treatment of this case.
The facts reveal that appellant was a member of the musical band hired to play at a wedding reception. It was the uncle of the bride, Marco Hernandez, who had hired appellant's band. When the reception was over, there arose a dispute regarding the band's compensation, leading to a struggle between appellant and Hernandez. Appellant testified that he saw a gun on the belt of Hernandez and that he feared that Hernandez was going to kill him. When the father of the bride, Anastacio Galvan, interceded, appellant fled to his truck, removing his own gun from the glove compartment. Hernandez headed for appellant's truck. Galvan followed. Appellant testified that some person reached into his truck and grabbed his gun which discharged, killing Galvan. He also testified he was in fear of his life when the gun he was holding discharged as he was encircled in the cab of the truck. Appellant's counsel objected to the jury charge where the jury was instructed that it could consider the actions of the deceased, Galvan, in determining whether appellant acted in self-defense. Appellant's objection went to the omission from the charge of Marco Hernandez' name on the issue of self-defense. Appellant contends that he was entitled to an instruction on multiple assailants as this issue was raised by the evidence. We agree.
Appellant testified he was 17 years old, married, the father of three and employed as a carpenter and a musician. On June 11, 1988, appellant and his fellow band members arrived at the wedding reception, beginning their performance at 8:00 P.M. Hernandez took to the stage, dedicating songs and adjusting electronic controls. When Willie Trevino, another band member, and appellant asked Hernandez to stop, he became abusive, saying he would "buy the f------ s---." Throughout the evening, Hernandez was on the stage making dedications.
When the reception concluded, Hernandez asked the band to play for another hour at a house. The band declined. Hernandez became irate, yelling that the band members, "weren't worth a F---," and "they were a bunch of queers." Hernandez walked off, returning with a check. Appellant refused the check, insisting that the deal was for cash. Hernandez again walked off, returning with Galvan. Hernandez was in front of appellant and Galvan was in back. Hernandez gave appellant the money, stating, "There is your money, punk, and I am going to kick your ass." Hernandez and Galvan both pushed appellant. Galvan told appellant to fight.
When Hernandez took off his coat, appellant stated that he saw a gun on his hip. Appellant then headed for the back door of the hall. Galvan and Hernandez followed, hitting and cursing appellant. Appellant looked out the back door of the hall and did not see his truck. Next, appellant heard his name being called and ran towards the front door. Hernandez and Galvan continued to follow appellant. Appellant approached his truck, arriving at the passenger side to find the door locked. When appellant looked back, he saw Hernandez and Galvan, along with Willie Trevino and some of the women guests coming towards him. He then ran around to the front of his truck, entering on the driver's side and sliding over to the passenger side. Appellant testified that he feared for his life, stating "they were going to kill me or something." Appellant did not have the keys to the ignition. He pulled out a gun from the glove compartment and sat with the cocked gun in his lap. Appellant stated that someone reached in and pulled the gun which went off. Appellant did not know who was shot. Appellant testified that he never intended to shoot Galvan.
During cross-examination and on redirect, appellant testified repeatedly that: he was scared; the shooting was an accident; he did not intend to shoot; he was protecting himself; he got the gun to protect himself; he did not intend to cause injury.
The trial court's charge to the jury instructed them upon the abstract law of murder and involuntary manslaughter and applied those principles to the facts. It charged on the abstract law of self-defense, but in applying the law to the facts, the trial court restricted appellant's right of self-defense to the words or conduct of Anastacio Galvan. Before the charge was read to the jury, appellant objected to the charge, requesting specifically that, in applying the law to the facts, the jury be instructed on appellant's right of self-defense as against Anastacio Galvan or Marco Hernandez. The trial court denied the request and overruled appellant's objection.
A person is justified in using...
To continue reading
Request your trial
-
Musick v. State
...of the strength of the evidence or whether it is controverted. See Booth v. State, 679 S.W.2d 498, 500 (Tex.Crim.App.1984); Lerma v. State, 807 S.W.2d 599, 601 (Tex.App.--Houston [14th Dist.] 1991, no pet.); see also Smith, 676 S.W.2d at 586-87. The defendant's testimony alone is sufficient......
-
State v. Mangum, ED 96029.
...in several out-of-state cases. Indeed, we have found no contrary authority. The first two cases come from the state of Texas. In Lerma v. State, 807 S.W.2d 599 (Tex.App.—Houston [14 Dist.] 1991), a teenage defendant became fearful when two adults pushed, struck, and cursed him during an arg......
-
Corbin v. State
...by the decedent alone but should have instructed the jury to consider the threat posed by all four assailants); Lerma v. State, 807 S.W.2d 599, 601-02 (Tex.Ct.App.1991) (where there was evidence that two assailants confronted the defendant, the trial court should not have restricted its ins......
-
State v. Irons
...the court is too restrictive if it confines the right of self-defense to the acts of the deceased. Id. at 832; see also Lerma v. State, 807 S.W.2d 599, 601 (Tex.App.1991) (concluding that a defendant is entitled to a charge of the right of self-defense against multiple assailants if there i......