Mercado v. State

• Decision Date: 22 October 1986
• Docket Number: No. 719-85,719-85
• Parties: Bernardino MERCADO aka "Nino", Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 291

718 S.W.2d 291

Bernardino MERCADO aka "Nino", Appellant, v. The STATE of Texas, Appellee.

No. 719-85.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 22, 1986.

Joseph A. Connors, III, McAllen, for appellant.

Rene Guerra, Dist. Atty., & Theodore C. Hake, Asst. Dist. Atty., Edinburg, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was convicted by a jury of attempted murder and sentenced by the trial court to five years' confinement in the Texas Department of Corrections. Appellant appealed his conviction to the Thirteenth Court of Appeals, which affirmed in a published opinion. Mercado v. State, 695 S.W.2d 25 (Tex.App.--Corpus Christi 1985).

We granted appellant's petition for discretionary review to consider two grounds for review. In his first ground, appellant contends that the Court of Appeals erred by overruling his claim that the trial court committed reversible error by instructing the jury that:

"In passing upon the intent of the defendant, if any [sic], you should look to the character of the weapon used. If the weapon was a deadly weapon, you may infer, from the use of such weapon, an intent to kill. A firearm is a deadly weapon. A gun or pistol used as a firearm is a deadly weapon per se."

Appellant did not object to the court's charge at the time of trial, but on appeal he argued that, inter alia, it was an improper comment on the weight of the evidence. The Court of Appeals held that the instruction was erroneous, but after applying the "egregious harm" standard of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), the court concluded that it was not such egregious error as to deprive appellant of a fair and impartial trial. The primary reason for the court's holding that there was no egregious harm was its conclusion that appellant did not contest the issue of intent to kill. Mercado, supra, at 27.

The State concedes that the instruction was an improper comment on the weight of the evidence. We agree. In Browning v. State, 720 S.W.2d 504 (Tex.Cr.App.1986), held that the court's charge therein was an improper comment on the weight of the evidence. The trial court had instructed the jury that: "Our law provides that the act of breaking and entering at nighttime raises a presumption that the act was done with the intent to commit theft. Such presumption is rebuttable." Although several differences exist between that instruction and the one in the instant cause, we believe that the charge here suffers the same defect. By singling out one reasonable inference, the trial court erred by improperly commenting on the weight of the evidence.

Finding error in the court's charge begins the inquiry; the degree of harm must be determined. Appellant contends that the Court of Appeals incorrectly determined the degree of actual harm. Almanza, supra, instructed that harm must be assayed in light of the entire jury charge, the state of the evidence including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed in the record. Id. at 171.

Except for three matters addressed below, appellant states that the Court of Appeals adequately set forth the applicable facts. We will, therefore, quote from its opinion.

"The evidence presented showed that on November 2, 1983, Valentin Sanchez punched an intoxicated driver in the face outside of the Las Vegas Bar around 5:30 p.m. Sanchez testified that appellant was the person he hit that afternoon. According to Sanchez, appellant said at that time that he was the brother of 'La Changa' and that he would come back to the bar in one hour and kill Sanchez and his family. About an hour after the initial altercation at the bar, appellant, several other adults, and some children returned to the bar in a Buick. As the car pulled up to the bar, three of the adults began shooting firearms at Sanchez. Sanchez was shot in his upper arm, about six inches from his heart.

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Other witnesses called by the State included a barmaid from the Las Vegas Bar whose fingers were apparently shot off during this incident, a police detective who described the scene shortly after the shooting and presented physical evidence recovered at the scene, ... the hospital records custodian who introduced the victim's emergency room and medical records and who also testified that appellant would have killed the victim had it been six inches closer to the center of his body,....

While the record is not specific in reflecting the identity of appellant, those who testified as to the identity of the assailants all made their description consistent with his identity and constituted sufficient evidence, along with Valentin Sanchez' positive identification, to justify the jury in finding appellant to be the party who shot the victim.

Appellant testified in his own defense. He stated that, on the day of the shooting, he had gone to the 30-30 Bar in Mission where he met someone who told him that there might be a construction job at the Las Vegas Bar. This person, whom appellant had never seen before, was described as a 'tall, slender, white skinned guy'. This person drove appellant over to the Las Vegas Bar where the other person became involved in an altercation with Valentin Sanchez. The appellant and the other man then left the bar, but the other man told appellant that he was going to go back to the Las Vegas Bar and take care of business. Appellant testified that he did not want to become involved in any trouble, so he went to visit his aunt.

On cross-examination, appellant testified that this other man was much taller and much skinnier than he. Appellant also testified that 'La Changa' was one of his (appellant's) brothers--although he also testified that the person he had never seen before said, 'I am the brother of "La Changa".' Appellant denied being at the bar when Sanchez was shot. (Emphasis added.)

Two other witnesses testified in behalf of appellant. They stated that appellant was at his aunt's house watching television when the shooting occurred."

In his first of three attacks on the Court of Appeals' assessment of harm, appellant asserts that the court failed to consider the entire jury charge. Appellant is correct that the court's opinion does not specifically discuss the court's charge as a whole. However, appellant fails to tell us how the degree of harm should be assayed in light of the entire charge. Appellant's only reference to the charge is his statement that it included an instruction that intent to kill is an essential element of the charged offense. Appellant does not explain how that adds anything to the analysis. Having examined the entire charge, we believe that in this case a consideration of the remainder of the court's charge does not advance the assessment of actual harm.

In his second attack, appellant claims that the court misstated the evidence. He specifically identifies three alleged errors: the court failed to note that the victim was also intoxicated; no one testified that appellant would have killed the victim; the victim did not positively identify appellant as the person who shot him.

Assuming that appellant's first two allegations are true, we do not believe that they had any bearing on the Court of Appeals' significant conclusion that the issue of intent to kill was uncontested. Appellant apparently concedes this by failing to make any argument that the first two errors did have any bearing. However, appellant does argue that the third error was critically important to the court's conclusion. He argues that the finding by the Court of Appeals that the victim identified him as the assailant placed the case outside the realm of circumstantial evidence. That is important, appellant argues, because all issues are considered contested in circumstantial evidence cases. As authority he cites a footnote in Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985).

Appellant fails to see the second paragraph of footnote two. In that paragraph this Court criticized the principle upon which appellant relies. Morgan, supra, at 879-880. Thus, even if appellant's version of the facts were correct, it would not affect a proper analysis. (In any event, we do not believe that this case consisted of purely circumstantial evidence. The victim did identify appellant as the person who shot him.)

Appellant cannot cite any evidence that shows he contested the issue of intent to kill. Thus, in his third attack on the Court of Appeals' assessment of harm, he points to the State's jury argument where "the prosecutor conveniently skipped comment on the element of intent and admitted that the same was a problem which [was] contested."

Under Almanza, supra, argument of counsel might have some bearing on actual harm. However, appellant has misconstrued the State's jury argument. In reference to the elements of the offense as contained in the charge, the prosecutor reviewed the proof of date and location. He then stated:

" 'The Defendant'--well, I will skip that element. That is the element which is going to be the problem, not only a problem, but which is contested. 'With the specific intent to commit the offense of murder.' The offense of murder. There is no doubt about it. Somebody did try to murder Mr. Sanchez."

It is beyond dispute that the identity of appellant as the actor was the element "skipped". It was the contested issue. In contrast, the prosecutor stated that there was no doubt that someone had the intent to kill Sanchez.

Appellant asserts two additional bases not previously raised in support of his claim that intent to kill was contested. We will consider them only because they are raised in response to the court's opinion. Appellant points to his own testimony that he did not shoot anyone that evening. However, that testimony does not contest the allegation that...