Ybarra v. State, 04-93-00169-CR
| Citation | 890 S.W.2d 98 |
| Decision Date | 30 September 1994 |
| Docket Number | No. 04-93-00169-CR,04-93-00169-CR |
| Parties | Adrian YBARRA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
Stephanie L. Barclay, San Antonio, for appellant.
Steven C. Hilbig, Crim. Dist. Atty., Daniel Thornberry, Asst. Crim. Dist. Atty., San Antonio, for appellee.
Before BUTTS, STONE and JOHN F. ONION, Jr. 1 , JJ.
Appellant Adrian Ybarra was indicted for murder. See TEX.PENAL CODE ANN. §§ 19.02(a)(1), 19.02(a)(2) (Vernon 1989). 2 The jury found appellant guilty of "murder as charged in the indictment." The jury assessed punishment at 40 years' imprisonment and a fine of ten thousand dollars.
Appellant advances eleven points of error. First, appellant contends that in absence of a waiver of jurisdiction by the juvenile court the district court had no jurisdiction over the cause. Second, appellant urges that the trial court erred "in instructing the jury that murder is a nature of conduct crime." The other points of error can be grouped into claims that because of erroneous evidentiary rulings extraneous offenses were improperly admitted, claims that the trial court erred in refusing to submit in its jury charge certain lesser included offenses, and claims that appellant was denied the effective assistance of counsel.
Appellant does not challenge the sufficiency of the evidence to sustain his murder conviction. A brief recitation of the facts is necessary to place the points of error in proper perspective. It is undisputed that on September 20, 1991, the sixteen year old appellant, with his own gun shot, and killed seventeen year old Tremayne Miller. It appears that they were schoolmates at the Robert E. Lee High School in San Antonio. The source of their difficulty is not clear. Appellant testified that he knew Miller about a month before the fatal shooting, but that their "trouble" before September 18, 1991, was "no biggie or anything." In the early evening of Wednesday, September 18th, Miller, Jessie Montemayor, Montemayor's girlfriend and others were in the parking lot of the La Maison Apartments, when appellant and his friend, Hector Caballero, crossed the parking lot. Miller spoke to Caballero, but not to appellant. Montemayor stated that appellant, who had been drinking, became angry and that he and Miller began to argue. There was some evidence at this point that appellant called Miller a "nigger," although appellant was to deny he ever made that statement at any time. Montemayor recalled that appellant first displayed a knife and then Miller pulled out his knife. Caballero testified that only Miller had a knife and tried to push him out of the way so Miller could get to appellant. Appellant stated that he was unarmed and tried to use Caballero as a shield as the others sought to calm Miller. Appellant related that he and Caballero were able to escape through a hole in the fence. Montemayor testified that when appellant left, appellant stated that he was going to get a gun.
Carlos Cruz and Mike Kimbrough encountered appellant near a convenience store about 10:30 p.m. the same evening. Appellant displayed a gun and bullets and stated that he was going to kill Miller. Cruz related that he and Kimbrough went to Miller's apartment to warn him. Kimbrough corroborated the encounter with appellant. According to Kimbrough, he and Cruz went with appellant, Caballero, and the two Montemayor brothers, George and Jesse, to the Miller apartment. When appellant suggested someone "go get Miller," Kimbrough went to the apartment and warned Miller, who locked the door. Kimbrough returned and told appellant that Miller's parents were at home. As they left the scene, Kimbrough recalled that appellant knocked on some apartment door and told a blond-headed lady that he was going to shoot Miller.
Appellant generally denied that all this occurred. He testified that after his encounter with Miller on that Wednesday evening, he went to the apartment he shared with his father, got his clothes and took them to Hector's apartment, and then he and Hector went to the apartment of appellant's mother. Appellant related that later, Hector's brother, Mike, came to that apartment to tell him that Miller had been at the Caballero apartment looking for appellant.
The next day, Thursday, appellant related that Miller and another boy came to the "in school suspension" classes he was attending and stood there looking at him until a teacher told them to leave. At his bathroom breaks, other students informed appellant that Miller was looking for him. On Friday, appellant stayed home from school.
Jesse Chipatecua and George and Jesse Montemayor were state's witnesses. They testified that they were with Miller about 4:20 p.m. on Friday, September 20, 1991, outside the Montemayor apartment at the Shallow Creek Apartments and that appellant came walking along on the other side of the ditch. While their testimony as to what occurred thereafter varied in some details, it was generally consistent. They testified that Miller stepped forward, told appellant he knew appellant was looking for him, and offered to fight. Appellant pulled the .38 caliber handgun from his waistband and pointed it at Miller, who asked to fight "clean" and referred to appellant as a "sissy" for using a gun. Appellant reportedly used a number of "F" words. The witnesses testified that they moved between Miller and appellant. George Montemayor told appellant to put his gun away and urged Miller to leave, to go home. Both individuals heeded the pleas. After Miller left the scene, the three witnesses walked along with appellant towards Magic Drive, discussing a party to be held that weekend. Appellant was described as being "cool." After they crossed Magic Drive, the witnesses heard a yell and saw Miller across the street approximately seventy-five yards away. At this point appellant turned, pointed the gun in Miller's direction and fired. Miller fell and appellant fled from the scene. The witnesses rushed to where Miller lay and found him bleeding. An ambulance was called.
David Tidwell testified that in the afternoon of September 20, 1991, he was on his way to Hector Caballero's apartment when he heard a gunshot. When he reached the Caballero apartment, he just walked in and heard appellant, talking to someone on the telephone, say "I got him." Appellant then showed Tidwell the gun which was still warm. Tidwell went to the location where appellant said he had shot Miller. After Tidwell saw the bleeding Miller, he called the police and pointed out the Caballero apartment.
Testifying in his own behalf, appellant stated that he left his apartment Friday afternoon and took his gun because of Miller's threats to get him. He encountered Miller and three others. Miller started towards appellant and asked him to go to the ditch to fight. Appellant related that as Miller kept approaching him, he pulled out his gun but did not point it. Miller told appellant to put the gun away and fight. Appellant reported that Miller succumbed to the pleas of the others and left to go home. Appellant then walked along with the others towards Magic Drive. Appellant admitted that they were discussing a weekend party when Miller reappeared. Appellant stated that he shot in the air to scare Miller and that he did not intend to hit Miller. Later, he recanted his testimony to the extent that he acknowledged that he shot in Miller's direction. "I saw he was going to run 3 and that is when I shot." Appellant admitted that he knew it was dangerous to have a gun and to shoot at someone, that he knew he was shooting in Miller's direction, and that when you point a gun at an individual and shoot you are likely to kill the individual.
After the shot was fired and appellant saw Miller fall, he left the scene and went to the Caballero apartment where he remained until arrested. The evidence shows that Miller was unarmed.
In connection with appellant's initial contention, we observe that the appellate record has been supplemented with the certification of the juvenile court for appellant to stand trial as an adult, the transfer order and other necessary juvenile court papers essential to the district court's jurisdiction. Thus, there is no basis for appellant to continue to pursue his first point of error. It is overruled.
In his second point of error, appellant urges that the "trial court erred in instructing the jury that murder is a nature of the conduct offense." Section 19.02 (murder) of the Texas Penal Code, in effect at the time of this offense, provides in part:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.
TEX.PENAL CODE ANN. § 19.02(a)(1), (2) (Vernon 1989).
Paragraphs A and B of the only count of the indictment alleged that on or about September 20, 1991, appellant:
did then and there intentionally and knowingly cause the death of an individual TREMAYNE MILLER, hereinafter referred to as complainant, by SHOOTING THE SAID COMPLAINANT WITH A DEADLY WEAPON, TO-WIT: A FIREARM, NAMELY: A HANDGUN;
And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present in and to said Court that on or about the 20TH day of SEPTEMBER, A.D., 1991, anterior to the presentment of this indictment in the County of Bexar and the State of Texas, ADRIAN YBARRA, hereinafter referred to as defendant, did then and there intending to cause serious bodily injury to an individual, TREMAYNE MILLER, hereinafter referred to as complainant, did then and there commit an act clearly dangerous to human life, to-wit: SHOOTING THE SAID COMPLAINANT WITH A DEADLY WEAPON, TO-WIT: A FIREARM, NAMELY: A HANDGUN, thereby causing the death of the said complainant.
Appellant's complaint...
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