Valmana v. State

• Decision Date: 17 July 2020
• Docket Number: No. 08-18-00084-CR,08-18-00084-CR
• Citation: 605 S.W.3d 490
• Parties: Manuel Alejandro VALMANA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

605 S.W.3d 490

Manuel Alejandro VALMANA, Appellant,

v.The STATE of Texas, Appellee.

No. 08-18-00084-CR

Court of Appeals of Texas, El Paso.

July 17, 2020

ATTORNEY FOR APPELLANT: James D. Lucas, 2316 Montana Ave., El Paso, TX 79903.

ATTORNEY FOR STATE: Jaime E. Esparza, District Attorney, El Paso County Courthouse, 500 E. San Antonio, Suite 201, El Paso, TX 79901.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

Appellant Manuel Alejandro Valmana appeals his conviction for aggravated assault with a deadly weapon. After the jury assessed punishment of two years' confinement and recommended that the sentence be probated, the trial court followed the recommendation and placed Appellant on community supervision for two years. In six issues, Appellant complains of: the legal sufficiency of the evidence to support his conviction, two evidentiary rulings, charge-related error, improper jury argument, and improper jury deliberation. We affirm the trial court's judgment.

FACTUAL SUMMARY

At about 12:30 p.m. on the afternoon of June 23, 2017, Daniel Rodriguez went to Craw Oyster Bar in El Paso. Appellant subsequently arrived at the bar with two other men. An hour or so later, after Rodriguez exited the restroom, Rodriguez and Appellant engaged in a verbal encounter that did not become violent. After an hour or two had passed, Rodriguez again went to the restroom. According to Rodriguez, as he was returning from the restroom, Appellant yelled, "Hey, motherfucker," and struck Rodriguez on the head with a beer bottle, which cut Rodriguez's face and head and caused him to bleed. Appellant left the bar, but Rodriguez stayed and called the police.

DISCUSSION

I. Sufficiency of the Evidence

We first address Appellant's fourth issue challenging the sufficiency of the evidence to support his conviction. Appellant asserts that the evidence was legally insufficient to prove that Appellant assaulted Rodriguez with a beer bottle and that the manner of its use or intended use was capable of causing Rodriguez's death or serious bodily injury as alleged in the indictment.

A. Standard of Review

In assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts "consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Alfaro-Jimenez v. State , 577 S.W.3d 240, 243–44 (Tex. Crim. App. 2019) (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia , 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) )). We determine whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." See Jenkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) ; Villarreal v. State , 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ). The law, as authorized by the indictment, means the statutory elements of the charged offense as modified by the charging instrument. See Curry v. State , 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

Each fact need not point directly and independently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Nisbett v. State , 552 S.W.3d 244, 262 (Tex. Crim. App. 2018) (citing Hooper , 214 S.W.3d at 13 ). It is not necessary that the evidence directly prove the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant's guilt, and circumstantial evidence alone can be sufficient to establish guilt. Nisbett , 552 S.W.3d at 262 (citing Hooper , 214 S.W.3d at 13 ).

The jury is free to accept or reject any or all evidence of either party. Hernandez v. State , 161 S.W.3d 491, 500 & n.28 (Tex. Crim. App. 2005). Our review does not intrude on the jury's role to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. TEX. CODE CRIM. PROC. ANN. art. 38.04 ; Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; Zuniga v. State , 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). We presume that the fact finder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Cavazos v. Smith , 565 U.S. 1, 7, 132 S.Ct. 2, 181 L.Ed.2d 311 (2011) (per curiam) (citing Jackson , 443 U.S. at 326, 99 S.Ct. 2781 ).

B. Applicable Law

The Texas Penal Code provides that a person commits "aggravated assault" if the person commits an assault by intentionally, knowingly, or recklessly causing bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2). "Bodily injury" means "physical pain, illness, or any impairment of physical condition." TEX. PENAL CODE ANN. § 1.07(a)(8). A deadly weapon can be "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B). "Serious bodily injury" means "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." TEX. PENAL CODE ANN. § 1.07(a)(46).

C. Analysis

1. Aggravated Assault with a Bottle

The State's case against Appellant was based on the theory that Appellant had used a deadly weapon—to wit, a bottle, that in the manner of its use and intended use was capable of causing death and serious bodily injury—during his assault on Rodriguez. Appellant complains that no eyewitness testimony established that Rodriguez was struck with a beer bottle, that Rodriguez's testimony that Appellant had struck him with a beer bottle was "nothing more than speculation," and that Rodriguez did not testify that he saw Appellant exhibit a beer bottle in a threatening way or saw the manner in which Appellant used or intended to use it such that it was capable of causing serious bodily injury or death. In support of his contention, Appellant asserts that Rodriguez's testimony shows that he did not know in which hand Appellant was holding the beer bottle, did not know that he had been struck with a beer bottle due to the swiftness of the attack, and was unable to identify the brand of beer bottle used to strike him. Appellant contends that Rodriguez's testimony that Appellant struck him with a beer bottle is, therefore, purely speculative. A speculation-driven conclusion cannot support a finding beyond a reasonable doubt. Winfrey v. State , 393 S.W.3d 763, 771 (Tex. Crim. App. 2013) ; see also McKay v. State , 474 S.W.3d 266, 270 (Tex. Crim. App. 2015) (explaining that evidence is insufficient if it "creates only a suspicion that a fact exists"); Anderson v. State , 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) ("Speculation is mere theorizing or guessing about the possible meaning of the facts and evidence presented.").

The evidence here, however, is not as sparse as Appellant suggests. At trial, Rodriguez declared that he was one-hundred percent certain that Appellant had struck him with a bottle. He explained that he did not anticipate Appellant's actions as one to two hours had passed since their verbal encounter, and he had walked to the restroom and had passed by Appellant without incident. As Rodriguez walked to the bathroom, he observed that Appellant was holding a beer bottle in his right hand. When Rodriguez exited the restroom, he saw that "nobody" was standing or looking and everything appeared "okay," but as he walked past Appellant's table to return to his seat, Appellant yelled, "Hey, motherfucker[!]" Rodriguez testified that as he turned around, Appellant hit him "in the face" with a beer bottle. When asked to clarify which hand Appellant used to strike him, Rodriguez testified, "well, I assume it was his right hand because when I went to the bathroom, he was holding his beer in his right hand. So I would assume, you know, it was his right hand."

Rodriguez was injured and traumatized upon being struck. He stood "numb" for a while and tried to determine what had happened. When he wiped his eyes, Rodriguez discovered that his hand was full of blood and that a lot of blood was on his face. Although the blood stung Rodriguez's eyes and made it difficult for him to see, he was able to see Appellant leave, and he called the police.

Under cross-examination, Rodriguez admitted that, with the initial contact, he did not realize that he had been struck with a bottle until he subsequently felt pain and blood "rushing" down his face. He also reaffirmed that he was certain that Appellant had struck him with a bottle because it was Appellant "that stood up and swung the bottle."

Assistant manager Juan Gabriel Mendoza testified he knew Appellant and Rodriguez and he had approached the two men to separate them during the initial verbal encounter. Mendoza had escorted Rodriguez back to his seat at that time. When Rodriguez was assaulted, Mendoza was outside the bar. A bar patron known to Mendoza as "Criss Cross"—who appeared to be in a hurry—ran from the bar's side door and said, "This fool just broke a bottle over this dude's head." Mendoza asked, "Who?" Cross yelled in response, "Alex," and then "jumped straight into his car" and left the premises. Wondering who had been hit, Mendoza reentered the bar and saw Rodriguez, whose face...