Pimentel v. State

• Decision Date: 21 May 1986
• Docket Number: No. 04-84-00320-CR,04-84-00320-CR
• Citation: 710 S.W.2d 764
• Parties: Gustavo PIMENTEL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 764

710 S.W.2d 764

Gustavo PIMENTEL, Appellant, v.The STATE of Texas, Appellee.

No. 04-84-00320-CR.

Court of Appeals of Texas San Antonio.

May 21, 1986.

Mark Stevens, Alan Brown, San Antonio, for appellant.

Sam Millsap, Jr., Raymond Fuchs, Eduardo Garcia, Daniel Thornberry, Crim. Dist. Attys., San Antonio, for appellee.

Before BUTTS, CANTU and TIJERINA, JJ.

CANTU, Justice.

This is an appeal from a conviction for murder.TEX.PENAL CODE ANN. § 19.02(Vernon Supp.1986).Appellant was indicted for capital murder, but was found guilty of the lesser offense of murder.The jury assessed punishment at 80 years' confinement.

Appellant's first five grounds of error complain of actions by the trial court in overruling his special requested instructions on lesser included offenses.The jury was charged on capital murder, murder, voluntary manslaughter, transferred intent and self defense.Appellant requested instructions on aggravated assault by causing serious bodily injury, aggravated assault by a deadly weapon, involuntary manslaughter, criminally negligent homicide, and reckless conduct, all of which were denied.

The evidence at trial established that at approximately 11:00 p.m. on the evening of December 23, 1983, the appellant shot officer Gilbert Ramirez of the San Antonio Police Department.Officer Ramirez died a short time later.Testimony concerning the events leading up to Ramirez' death established that earlier in the evening of the shooting, appellant and his nephew, Tony Vicenzio, had attended a Christmas party where appellant was drinking.The two men returned to Vicenzio's home where they began to argue.The argument developed into a physical fight, which ended when another relative, Juan Guzman, got involved by allegedly kicking appellant and firing a .25 caliber pistol into the air.

According to the testimony at trial, appellant, angry at Guzman for kicking him, left the Vicenzio home vowing to return "and get even."Appellant went to his own house two doors down, and loaded his shotgun.He then returned to the Vicenzio home and began kicking on the door.Other relatives at the Vincenzio home warned appellant that the police had been called and told him to go home.Appellant returned to his own home, after again vowing to get even.

Isidro Puente, a friend of appellant, was present at appellant's home.Puente testified that appellant returned home and unloaded his shotgun.Appellant then apparently saw car lights in the Vicenzio driveway.He reloaded the shotgun, and ran towards the Vicenzio home shouting "Well, I ain't going to hurt nobody, I am just going to shoot at the house."Puentes stated that appellant appeared very angry and upset.

Joe and Dora Cantu were visiting at the Vicenzio home.After the police had been called they attempted to leave.The Cantus saw the police cars arrive so they parked their truck partially in the street between the appellant's house and the police cars.The police vehicles were marked as such, but only their parking lights were on.

According to the testimony of officer Richard Sanchez, one of the San Antonio Police Department members to first respond to the call to the Vicenzio home, officer Ramirez arrived on the scene first.When Sanchez arrived Ramirez was talking to the Cantus next to their truck.Somebody shouted, "Here he comes."Sanchez observed appellant running down the street carrying a rifle.Sanchez and Ramirez ran for cover behind the truck; officer Ramirez ran to the back left of the vehicle.Ramirez identified himself as a police officer, and shouted at appellant to drop the gun.According to Sanchez, neither he nor Ramirez fired their weapons, but appellant fired twice, the second shot striking Ramirez in the neck.Ramirez returned fire at the same time appellant fired his second shot.Appellant continued running down the street.Sanchez fired several times at appellant, and then called for medical assistance for Ramirez.

Several more officers arrived in the area, and began searching for appellant with dogs.Appellant was apprehended nearby, and the shotgun located shortly thereafter under some bushes near a neighbor's house, where appellant indicated he had put it.

Appellant testified on his own behalf at trial.According to his version of the facts appellant grabbed his shotgun and ran towards the Vicenzio house intending to shoot at the Cantus' truck.Appellant stated that he did not see the police cars, but thought that the parking lights were those of a car belonging to another relative.He also testified that he did not hear the police identify themselves.

According to his testimony, appellant was aware that Guzman had a gun earlier in the evening.He therefore maintained that he was afraid when he returned to the Vicenzio home.Appellant claimed that when he got close to the Cantu's truck someone fired at him.Appellant testified that his gun just went off, stating:

... and all of a sudden I just, maybe I went down and fired, but at the same time I got scared.I got real scared, and I didn't know who was shooting at me.I just continued jogging, jogging all the way here and firing.I don't know, maybe I load again and fired again.I don't remember.And I just continued running and I hear some shots after me.And I continue jogging all the way through here.They fired at me at close range right here.And all the sudden I might have went down, I don't know.I got scared and it just went off.I had my finger on my trigger, and it just went off.And I continued jogging and I might did fire again, I don't remember.

When appellant was later apprehended, he asked the officers "Did I get my brother-in-law?"According to testimony at trial, when appellant was told he had injured a police officer, he"had a look of surprise to him."

Appellant's first two grounds of error complain of the trial court's refusal to submit to the jury his requested instructions on aggravated assault by causing serious bodily injury and aggravated assault by deadly weapon as lesser included offenses.

In addition to capital murder, the trial court charged the jury on the lesser included offenses of murder and voluntary manslaughter, as well as on the law of transferred intent and self defense.The trial court, however, refused to submit instructions on involuntary manslaughter, criminally negligent homicide, aggravated assault by serious bodily injury, aggravated assault by deadly weapon and reckless conduct as lesser included offenses.

Appellant argues on appeal that in spite of his admissions that he shot officer Ramirez, his repeated denials that he intended to kill or shoot Ramirez or anyone else suffice to raise aggravated assault as a lesser included offense.

Texas Penal Code section 22.01 provides in pertinent part:

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; ...

Texas Penal Code section 22.02 provides in pertinent part:

(a) A person commits an offense if the person commits assault as defined in Section 22.01 of this code and the person:

(1) causes serious bodily injury to another, including the person's spouse;

* * *

* * *

(4) uses a deadly weapon.

Appellant submitted a specially requested instruction on aggravated assault by causing serious bodily injury of which the following paragraph represents the application of the law to the facts.

Now if you find from the evidence beyond a reasonable doubt that on or about the 24th day of December 1983, in the County of Bexar, State of Texas, the DefendantGustasvo Pimentel, did intentionally or knowingly or recklessly commit an assault on Gilbert Esquivel Ramirez by use of a deadly weapon, to wit, by shooting him with a gun, and thereby inflict bodily injury upon him, as alleged in the indictment, you will find the defendant guilty of aggravated assault as charged in the indictment....

We note that the requested instruction incorrectly purports to charge on aggravated assault as "charged in the indictment."If aggravated assault was in the case it was as a lesser included offense of capital murder and not by virtue of being the subject of the indictment.

More crucially, we think, the requested instruction would have permitted the jury to convict for the offense of aggravated assault under § 22.01(a)(1) without a finding that the bodily injury inflicted was serious.A trial court may refuse a requested instruction when it incorrectly states the applicable law.Goldman v. State, 143 Tex.Cr.R. 603, 160 S.W.2d 523(1942);Mutscher v. State, 514 S.W.2d 905(Tex.Crim.App.1974).

Ground of error number one is overruled.

Appellant's requested instruction on aggravated assault by deadly weapon was submitted in correct form but nevertheless overruled.

In order for a lesser included offense charge to be submitted, the lesser included offense must be within the proof of the offense actually charged and there must be evidence that if the defendant is guilty, he is guilty only of the lesser offense.Moreno v. State, 702 S.W.2d 636(Tex.Crim.App.1986)(en banc);Aguilar v. State, 682 S.W.2d 556(Tex.Crim.App.1985)(en banc);Royster v. State, 622 S.W.2d 442(Tex.Crim.App.1981).

Appellant argues that his testimony that he intended to shoot at the truck or the house raises evidence of guilt of aggravated assault only.He further relies on the recent line of cases holding that use of a deadly weapon per se does not preclude the granting of an instruction on aggravated assault.SeeHarrell v. State, 659 S.W.2d 825(Tex.Crim.App.1983)(en banc);Castillo v. State, 686 S.W.2d 377(Tex.App.--San Antonio 1985, no pet.).

While we agree that an instruction on aggravated assault can no longer be withheld because a deadly weapon per se is used, we are not prepared to say that an instruction is mandated where the evidence fails to suggest that appellant, if guilty, is guilty only of aggravated...