Affirmed; Opinion Filed January 15, 2020




                                                In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-01262-CR

                              ANTHONY PAZ TORRES, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 203rd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F15-76860-P

                              MEMORANDUM OPINION
                           Before Justices Molberg, Reichek, and Evans
                                    Opinion by Justice Evans
       Appellant Anthony Paz Torres appeals from the judgment adjudicating him guilty of

murder. In three issues, appellant asserts: (1) the evidence was insufficient to disprove that

appellant acted in self-defense; (2) the evidence was insufficient to establish that appellant acted

with the requisite mental state for murder; and (3) the trial court erred in speculating that the mental

health provider would inform parole officials that appellant was compliant in taking antipsychotic

medication. We affirm the trial court’s judgment.

                                          BACKGROUND

           A.      December 17, 2015

       Mahar Yousaf, an employee at Omar’s Wheels and Tires, was working on December 17,

2015 when appellant came into the shop wearing a yarmulke. Appellant stated that he needed air

and the employees told him to help himself. Appellant began cursing and saying things like “what
are you doing here, you Muslims.” Someone at the tire shop called the police. Evan Amine, an

employee at the shop, told appellant to leave and “C-Bo,” another employee, exchanged words

with and kicked appellant as he was backing up. Appellant continued to curse and back up. Yousaf

did not see anyone with a weapon. C-Bo and appellant almost got into a fight and Amine took a

photo of appellant’s license plate.

       Sabrina Vanegas, a Dallas police officer, was dispatched to the tire shop on December 17,

2015 because a man had caused a disturbance. Officer Vanegas spoke with a witness at the tire

shop, identified appellant’s address from his license plate, and drove to appellant’s house. When

asked if he said anything about Muslims, appellant replied:

       I just told them that I’m Jewish, I’m Christian. They started talking shit to me, man.
       I told them I’m Jewish, I’m Christian; Christians and Jews we’re united. And I
       simply told them that Muslims are here in this country prospering off of Christians
       but Christians and Jews can’t live in their country.

Appellant said he did not provoke the employees but they got mad at him because he was Jewish.

Appellant said the employees attacked him and kicked him in the head. The officers advised

appellant not to go back to the tire shop and appellant said he would not.

          B.      December 24, 2015

       Bryan Vazquez, an employee, was at the tire shop on December 24, 2015 and interacted

with appellant. Appellant asked Vazquez if the air was free and Vazquez said it was. Vazquez

then went to put air in his tire but appellant ignored him and walked into the main building.

Vazquez saw appellant pacing back and forth before he pulled his gun and started shooting.

Vasquez was shot on the side of his back. He testified that Amine did not pull a gun on appellant.

He also noted that the shop has many cameras but not all of them were working due to remodeling

at the shop. Benigo Cuevas was also at Omar’s shop on December 24, 2015 and identified

appellant as the shooter. Cuevas testified that he heard Amine tell appellant to leave and appellant



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“started shooting crazy.” Cuevas did not see Amine with a gun or see anyone else shooting towards

appellant.

       Rene Rangel, Enrique Garcia Mendoza, and Luis Alberto Morales Lopez went to Omar’s

Wheels and Tires to get tires on December 24, 2015. Rangel parked next to the shop’s office.

Mendoza sat in the passenger front seat of the car and Lopez sat in the back. They were waiting

outside when a man began shooting toward the shop’s employees. Appellant shot through

Rangel’s rear windshield hitting Mendoza in the back of the neck. Rangel identified appellant as

the shooter. Rangel testified that Omar shot back at appellant after appellant tried to take off from

the tire shop. In addition, Yousaf was shot several times and sustained serious injuries.

       Amine recognized appellant from his prior visit and told Omar to be careful. Omar went

up to appellant and offered to help him. Appellant asked about getting air and told Omar he was

looking for the “bald headed guy.” Omar testified that it clicked in his head that this was the guy

from the prior week and he understood that appellant was asking about C-Bo. Omar did not have

his gun on him because he had left it in his truck. Omar testified that he was the only one who

carried a gun at the shop and that there were no other weapons there. Appellant wandered into the

back of the shop where the employees worked and Omar and Amine escorted him out. After Omar

asked appellant to leave, Omar saw him touch the gun at his waistband. Omar called 911, picked

up a sledgehammer because he was “scared for his life,” and walked away from appellant. Omar

walked toward his truck to get his gun. Appellant was in the parking lot walking back and forth

when he started shooting toward the shop. When appellant began shooting, Omar testified that no

one had acted aggressively toward him or aimed a gun at him. In addition, Omar stated that no

one threatened to shoot, stab or hit appellant prior to the shooting nor did Omar threaten appellant

with the sledgehammer. Omar started shooting back at appellant when appellant jumped into his

car. Omar testified that appellant tried to reload his gun but once Omar began shooting, appellant

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drove off and almost hit him with his car. Omar fired at appellant but did not fire toward Rangel’s

car. Although the shop has many security cameras, the surveillance system did not record the

shooting of the victim. Omar does not know how the security footage lost minutes of a recording

but he did not delete the footage nor did anyone touch the surveillance system until the detectives

came to the shop and asked about it.

       Alex Brinkley, an officer with the police department at Baylor Hospital, was working in

the emergency room waiting room on December 24, 2015. Someone informed Brinkley that a

man outside had been shot. Brinkley went outside and saw a Chevrolet sedan with bullet holes on

the front driver’s side, but appellant had already gone inside. He recalled seeing a Glock handgun

magazine laying in the car. Brinkley also saw a leather handgun holster on appellant’s body.

Detective Abe Santiago, a retired crime scene investigator with the Dallas police department, was

dispatched to Baylor Hospital on December 24, 2015. Santiago photographed appellant as well as

appellant’s car, a 2011 Chevrolet, and the Glock on the passenger seat floorboard.

          C.      Trial

       At trial, Dr. Candace Shoppe, a forensic pathologist at the Dallas County Medical

Examiner’s Office, testified that she performed Mendoza’s autopsy and concluded that he died

from a gunshot wound.       Dr. Shoppe recovered the bullet core from Mendoza’s neck. April

Kendrick, the firearm supervisor at the Southwest Institute of Forensic Sciences, testified at trial

that she analyzed evidence for this case including two firearms, magazines, fired cartridge cases

and fired bullets. Kendrick reviewed the fired cartridge casings and concluded that many of the

casings were fired by appellant’s Glock semiautomatic pistol. Kendrick also reviewed other

casings fired by another Glock pistol. Kendrick did not match the bullets to the guns.

       Derick Chaney, a detective with the Dallas police department, was assigned to the murder

investigation at the tire shop. Detective Leonard retrieved the surveillance video from the shop


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and Detective Chaney did not see Detective Leonard delete any footage. Detective Chaney

testified that he was aware that some of the videos skipped and were missing time but that the

missing time did not change his conclusions in the case.

       Following the trial, the jury found appellant guilty of murder as charged in the indictment.

The trial court sentenced appellant to thirty-five years’ confinement in the Texas Department of

Criminal Justice.

                                           ANALYSIS

          D.        Sufficiency of Self-Defense and Requisite Mental State

       In his first two issues, appellant challenges the sufficiency of the evidence to (1) disprove

that he acted in self-defense and (2) establish that he acted with the requisite mental state for

murder.

               1.       Standard of review

       When reviewing whether there is legally sufficient evidence to support a criminal

conviction, the standard of review we apply is whether, after reviewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard tasks the factfinder

with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable

inferences from basic facts. Id. On appeal, reviewing courts determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the evidence when

viewed in the light most favorable to the verdict. Id.

       In evaluating a claim of insufficient evidence in the context of a self-defense issue, we

apply the general sufficiency review principles along with sufficiency principles specific to self-

defense. Gilbert v. State, 575 S.W.3d 848, 862 (Tex. App.—Texarkana 2019, pet. ref’d). When


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there is a claim of self-defense or defense, the defendant bears the burden to produce evidence

supporting the defense while the State bears the burden of persuasion to disprove the raised issues.

Id. The defendant must produce some evidence that would support a rational finding in his favor

on the defensive issue. Id. As with the general sufficiency principles, the trier of fact is the sole

judge of the credibility of defensive evidence, and is free to accept it or reject it. Id.

                   2.       Murder

          A person commits murder if he: (1) intentionally or knowingly causes the death of an

individual; or (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 § 19.02(b)(1) and (2).

                   3.       Self-defense

          Appellant argues that he acted reasonably in determining that it was necessary to defend

himself based on the events at the tire shop on December 17 and 24, 2015, and the evidence was

insufficient to disprove that he acted in self-defense. Pursuant to the penal code, a person is

justified in using force against another when and to the degree the actor reasonably believes the

force is immediately necessary to protect the actor against the other’s use or attempted use of

unlawful force. See TEX. PENAL CODE § 9.31(a). A person is justified in using deadly force against

another if the actor would be justified in using force against the other under Section 9.31 and when

and to the degree the actor reasonably believes the deadly force is immediately necessary. See

TEX. PENAL CODE § 9.32(a).1




    1
        Section 9.31 of the Texas Penal Code provides as follows:

          The actor’s belief that the force was immediately necessary as described by this subsection is
          presumed to be reasonable if the actor:

          (1) knew or had reason to believe that the person against whom the force was used:


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       The evidence demonstrates that appellant provoked the altercation on December 17, 2015.

Appellant entered the tire shop and began cursing and saying things like “what are you doing here,

you Muslims.” After appellant was told to leave and failed to do so, C-Bo exchanged words with

appellant and kicked him. The police advised appellant to stay away from the shop but appellant

returned on December 24, 2015. Appellant asked for C-Bo and wandered into the employee work

area. Omar asked appellant to leave but appellant continued to pace in the parking lot before

pulling out a gun and firing toward the shop employees hitting Mendoza, Vasquez, and Mahar.

Several witnesses testified that no one acted aggressively toward appellant or aimed a gun at him

prior to the shooting by appellant. Witnesses also testified that Omar only shot at appellant after

he had begun shooting toward the employees. Thus, the evidence does not suggest that anyone

threatened appellant with the use of deadly force at the time appellant began shooting.

       In addition, there is no evidence that Mendoza was appellant’s intended target. Mendoza

was an unarmed customer with his back toward appellant seated in his friend’s car next to the tire

shop’s office. Appellant does not argue Mendoza presented any threat of force against appellant,

nor would the record support such an argument because all the evidence is that Mendoza sat in the

car with his back toward appellant. Under the principle known as transferred intent, appellant is

criminally responsible for causing Mendoza’s death because the only difference between what




               (A) unlawfully and with force entered, or was attempting to enter unlawfully and with
               force, the actor’s occupied habitation, vehicle, or place of business or employment;

               (B) unlawfully and with force removed, or was attempting to remove unlawfully and with
               force, the actor from the actor's habitation, vehicle, or place of business or employment; or

               (C) was committing or attempting to commit aggravated kidnapping, murder, sexual
               assault, aggravated sexual assault, robbery, or aggravated robbery;

       (2) did not provoke the person against whom the force was used; and

       (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a
       violation of a law or ordinance regulating traffic at the time the force was used.

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actually occurred and what he desired, contemplated, or risked, is that a different person was

injured, harmed, or otherwise affected. See TEX. PENAL CODE § 6.04(b)(2); Manrique v. State,

994 S.W.2d 640, 647 (Tex. Crim. App. 1999). Texas law also provides that even if appellant was

justified in using deadly force against one of the tire shop employees, justification is unavailable

in a prosecution for the reckless injury or killing of an innocent third person. See TEX. PENAL

CODE § 9.05 (“Even though an actor is justified under this chapter in threatening or using force or

deadly force against another, if in doing so he also recklessly injures or kills an innocent third

person, the justification afforded by this chapter is unavailable in a prosecution for the reckless

injury or killing of the innocent third person.”). Thus, even if the evidence were to demonstrate

that appellant was justified in using deadly force against one of the tire shop employees, which it

does not, appellant would not be entitled to the use of self-defense as justification for killing

Mendoza. See Banks v. State, 955 S.W.2d 116, 118 (Tex. App.—Fort Worth 1997, no pet.). For

all these reasons, we overrule appellant’s first issue.

               3.      Requisite mental state

       Appellant argues that (1) the jury charge should have included an “accident” justification

instruction because Mendoza was not appellant’s intended target; and (2) appellant’s mental

condition prevented him from acting intentionally or recklessly. As for appellant’s accident

argument, the defense of accident no longer exists in the penal code. See Williams v. State, 630

S.W.2d 640, 644 (Tex. Crim. App. 1982) (“There is no law and defense of accident in the present

penal code, and the bench and bar would be well advised to avoid the term ‘accident’ in connection

with offenses defined by the present penal code.”). Instead, the penal code provides that a “person

commits an offense only if he voluntarily engages in conduct, including an act, an omission, or

possession.” See TEX. PENAL CODE § 6.02(a). “Voluntariness” within the meaning of section

6.01(a) refers only to one’s physical bodily movements and means the absence of an accidental

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act, omission or possession. See Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993). In

this case, the evidence demonstrates that appellant voluntarily pulled out a weapon and began

firing toward the tire shop employees. In his second argument, appellant argues that his mental

condition prevented him from acting intentionally or recklessly. Appellant, however, rested after

the conclusion of the State’s case and did not call any witnesses or experts in support of his defense.

Appellant failed to provide the jury with any evidence that he suffered from schizophrenia because

this evidence was introduced only during the punishment phase of the trial. Accordingly, the jury

could not have considered whether appellant’s diagnosis had any impact on his mental state when

reaching its verdict. For all the reasons discussed above, we overrule appellant’s second issue.

               4.      Sentencing Hearing

       In his third issue, appellant argues that the “trial court erred in speculating that the mental

health provider in the Institutional Division would inform parole officials that Appellant was

compliant in taking antipsychotic medication.” Appellant asserts that his due process and statutory

rights were violated because “the trial court used incorrect information that Appellant would parole

eight to 11 years before completing his 35-year sentence on the successful management of his

schizophrenia.” Generally, to preserve an issue for appellate review, a party must present to the

trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.

See TEX. R. APP. P. 33.1(a). Appellant failed to raise this objection during the sentencing hearing.

Accordingly, appellant has failed to preserve this argument for appellate review.




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                                        CONCLUSION

       We resolve appellant’s issues against him and affirm the trial court’s judgment.



                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE


Do Not Publish
TEX. R. APP. P. 47
181262F.U05




                                              –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 ANTHONY PAZ TORRES, Appellant                      On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-01262-CR         V.                      Trial Court Cause No. F15-76860-P.
                                                    Opinion delivered by Justice Evans.
 THE STATE OF TEXAS, Appellee                       Justices Molberg and Reichek participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 15th day of January, 2020.




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