Villarreal v. State

• Decision Date: 13 February 1986
• Docket Number: Nos. 13-85-171-CR,s. 13-85-171-CR
• Citation: 706 S.W.2d 689
• Parties: Ildefonso VILLARREAL, Appellant, v. The STATE of Texas, Appellee. to 13-85-173-CR.
• Court: Texas Court of Appeals

Page 689

706 S.W.2d 689

Ildefonso VILLARREAL, Appellant, v. The STATE of Texas, Appellee.

Nos. 13-85-171-CR to 13-85-173-CR.

Court of Appeals of Texas,

Corpus Christi.

Feb. 13, 1986.

Abel Toscano, Jr., Harlingen, for appellant.

Ben Euresti, Jr., Dist. Atty., Brownsville, for appellee.

Before NYE, C.J., and KENNEDY and DORSEY, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from one trial resulting in four convictions. The State brought the four charges in three indictments. In No. 13-85-171-CR, a jury found appellant guilty of murder and unlawfully carrying a weapon on licensed premises. The jury assessed sentences of thirty and ten years, respectively. The jury found appellant guilty of murder in No. 13-85-172-CR and assessed a ten-year sentence. Another ten-year sentence was assessed by the jury in No. 13-85-173-CR after the jury found appellant guilty of attempted murder.

All of these offenses were committed at a bar in Olmito, Texas, on August 22, 1984. Shortly after noon, appellant walked into the bar frequented by him and his long-time friends. He had the Colt .45 automatic pistol which he carried when he worked as a security guard tucked in his belt and under his shirt. He testified the gun was for his protection, because he had received threats from his neighbor, who thought he had shot her dogs. She had told him that her husband, Noe Gonzalez, would "take it out on him" at the bar.

In the bar was his neighbor, Noe Gonzalez, and Gonzalez' two nephews, Jaime Cavazos and Miguel Cavazos. These three were the eventual victims who were shot. Other people in the bar were Rogelio Flores, the bar owner, Guadalupe Esquivel, Ascencion Rodriguez, and Ramon Cavazos, another uncle of Miguel and Jaime Cavazos. All of the men in the bar had spent virtually their entire lives in Olmito, and most of them visited the bar on a near-daily basis.

When appellant Villarreal entered the bar, he sat down at a table with Ascencion Rodriguez and Ramon Cavazos. Noe Gonzalez was standing at the bar in front of him, about ten feet away; Jaime Cavazos was sitting at a table to his right; and Miguel Cavazos was playing pool behind him. The testimony is contradictory after this, but the outcome is clear: some time after appellant sat down, he shot Noe Gonzalez dead, shot Jaime Cavazos dead, and seriously wounded Miguel Cavazos. Appellant himself sustained a serious laceration across his head and a dislocated shoulder as a result of Miguel Cavazos breaking a pool cue on him.

Appellant's first three grounds of error complain of the trial court's refusal to charge the jury on voluntary manslaughter, involuntary manslaughter, and criminally negligent homicide. As support for the inclusion of these instructions, appellant points to his own testimony. According to appellant, he had been drinking heavily on the day of the shootings. Shortly after he entered the neighborhood bar and sat down, Noe Gonzalez left his place at the bar, walked toward appellant and said, "You son of a bitch! You killed my dogs!" Gonzalez then crouched down, and appellant thought he made a move toward his waist. Appellant stated the victim was "mad" and usually carried a gun. Jaime Cavazos also began moving toward him, appellant thought. Then, apparently in rapid sequence, appellant stood up, pulled out his gun, was hit in the head, and started firing his gun. Appellant stated that his vision blurred as a result of the blow to his head, and, though he remembered firing his gun, he did not remember hitting anyone. His purpose in shooting was to defend himself.

We find that appellant's testimony did not require the trial court to include any of the requested instructions. In order to warrant an instruction on voluntary manslaughter, evidence from some source must fairly raise the issue of appellant's acting under the immediate influence of sudden passion arising from an adequate cause. Luck v. State, 588 S.W.2d 371, 374 (Tex.Crim.App.1979); Oliva v. State, 663 S.W.2d 656, 658 (Tex.App.--Corpus Christi 1983, no pet.); TEX.PENAL CODE ANN. § 19.04 (Vernon 1974). Appellant claims that the blow to his head rendered him incapable of cool reflection and the approach of Noe Gonzalez produced fear in him that could have risen to the level of terror. Appellant cites Roberts v. State, 590 S.W.2d 498, 501 (Tex.Crim.App.1979). Appellant does not claim here on appeal, nor did he testify at trial, that he was terrified beyond an ability to coolly reflect on his actions. See Bradley v. State, 688 S.W.2d 847, 852 (Tex.Crim.App.1985). The trial court correctly included an instruction on self-defense but was not required to instruct the jury as appellant requested.

We likewise find that appellant's testimony fails to raise issues on involuntary manslaughter or criminally negligent homicide. A charge of involuntary manslaughter requires evidence that appellant acted recklessly; that is, with conscious disregard of a substantial and justifiable risk that the circumstances exist or the result will occur. Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App.1984); TEX.PENAL CODE ANN. §§ 19.05, 6.03(c) (Vernon 1974). A charge of criminally negligent homicide is required only when evidence fairly raises the question of whether appellant acted with criminal negligence; that is, whether he ought to have been aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Lugo at 147; TEX.PENAL CODE ANN. §§ 19.07, 6.03(d) (Vernon 1974).

Recklessness and criminal negligence are not raised by appellant's testimony. He testified that he pulled out his gun and started shooting because he thought he was being attacked. Nowhere does appellant claim that he did not intend to hit his victims when he fired. He did testify, "I had no intention of shooting anybody," but this was in response to the cross-examiner's inquiry into why he took the gun into the bar. The testimony of an accused that he fired his gun to ward off an attack does not warrant a charge on involuntary manslaughter. Stewart v. State, 587 S.W.2d 148, 151 (Tex.Crim.App.1979); Oliva, 663 S.W.2d at 659. Likewise, appellant's testimony fails to suggest the requisite mental state for criminal negligence. See Ross v. State, 658 S.W.2d 846, 849 (Tex.App.--Fort Worth 1983), aff'd 678 S.W.2d 491 (Tex.Crim.App.1984). We have searched the record for any other evidence which would raise one of the lesser included offenses of murder and find none.

Appellant contends in his fourth ground of error that his sentences of thrity and ten years in No. 13-85-171-CR should have been ordered to run concurrently instead of consecutively. However, the substance of his complaint appears to be that he was convicted of two offenses charged in a single indictment. Appellant did not object at trial, or before trial by a motion to quash, to the joinder of the charges for murder and unlawfully carrying a weapon on licensed premises. The only objection to the joinder was an oral objection during a hearing on appellant's motion for new trial. That objection did not mention the conviction; it merely complained that the sentences were ordered to run consecutively, rather than concurrently.

Despite the inadequacy of appellant's complaints to the trial court and on appeal, we may not allow the conviction for unlawfully carrying a weapon on licensed premises to stand. Drake v. State, 686 S.W.2d 935 (Tex.Crim.App.1985...