                                                                                 ACCEPTED
                                                                            04-14-00500-CR
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                       3/10/2015 5:23:56 PM
                                                                              KEITH HOTTLE
                                                                                     CLERK

                     No. 04-14-00500-CR


                              In the
 Fourth Court of Appeals District of Texas
                        San Antonio, Texas


                        EDWARD ROMERO,
                                   Appellant
                              v.

                        STATE OF TEXAS,
                                     Appellee


                 Trial Cause No. 2013-CR-3128
     On appeal from the 186th District Judicial District Court
                      Bexar County, Texas


                 APPELLEE STATE’S BRIEF


                                 NICHOLAS “NICO” LAHOOD
                                 Criminal District Attorney
                                 NATHAN E. MOREY
                                 Assistant Criminal District Attorney
                                 State Bar No. 24074756
                                 CRIMINAL DISTRICT ATTORNEY’S OFFICE
Oral Argument Waived             Bexar County, Texas
                                 101 West Nueva, Suite 720
                                 San Antonio, Texas 78205
                                 Voice: (210) 335-2414
                                 Fax: (210) 335-2436
                                 Email: nathan.morey@bexar.org
                                 Attorneys for the State of Texas
                  ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief



                     IDENTITY OF THE PARTIES AND COUNSEL

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State

supplements the following individual(s) to the list of parties and counsel:

         Nathan E. Morey
           Assistant Criminal District Attorney and
           Counsel for the State on Appeal
           State Bar No. 24074756
           101 West Nueva, Suite 720
           San Antonio, Texas 78205
           Voice: (210) 335-2414
           Fax: (210) 335-2436
           Email: nathan.morey@bexar.org




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                                               TABLE OF CONTENTS

Identity of the Parties and Counsel ........................................................................... ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iv

Statement of the Case.................................................................................................1

Issue Presented ...........................................................................................................2

   Sole Issue:          Was the jury’s verdict rejecting self-defense supported by
                        sufficient evidence? ..........................................................................2

Statement of Facts ......................................................................................................3

Summary of the Argument.........................................................................................4

Argument....................................................................................................................5

       Standard of Review............................................................................................5

       Applicable Law: Aggravated Assault and Self-Defense ...................................6
       Application of the Law to the Present Record...................................................6
       The trial court correctly instructed the jury on self-defense. ............................7

Prayer .........................................................................................................................9

Certificate of Service ...............................................................................................10

Certificate of Compliance ........................................................................................10



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                                       INDEX OF AUTHORITIES

Statutes:
  TEX. CODE CRIM. PROC. art. 44.02 .........................................................................1
  TEX. PENAL CODE § 2.03(d) ..................................................................................8
  TEX. PENAL CODE § 9.31.......................................................................................8
  TEX. PENAL CODE § 9.31(a) ..............................................................................6, 8
  TEX. PENAL CODE § 9.31(b)(1) .............................................................................8
  TEX. PENAL CODE § 9.31(b)(4) .............................................................................8
  TEX. PENAL CODE § 9.32(a) ..................................................................................8
  TEX. PENAL CODE § 12.42(d) .................................................................................1
  TEX. PENAL CODE § 22.01(a)(1) ............................................................................6
  TEX. PENAL CODE § 22.02(a)(1) ............................................................................6
  TEX. PENAL CODE § 22.02(a)(2) ........................................................................1, 6

Cases:
  Brooks v. State,
    323 S.W.3d 893 (Tex. Crim. App. 2010) ..........................................................5
  Clayton v. State,
    235 S.W.3d 772 (Tex. Crim. App. 2007) ..........................................................5
  Hayes v. State,
    728 S.W.2d 804 (Tex. Crim. App. 1987) ..........................................................6
  Hooper v. State,
    214 S.W.3d 9 (Tex. Crim. App. 2007) ..............................................................5
  Jackson v. Virginia,
    443 U.S. 307 (1979)...........................................................................................5
  Miranda v. State,
    350 S.W.3d 141 (Tex. App.—San Antonio 2011, no pet.) ...............................7




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  Saxton v. State,
    804 S.W.2d 910 (Tex. Crim. App. 1991) ..........................................................6

Rules:
  TEX. R. APP. P. 9.4(i)(2)(B) ................................................................................10
  TEX. R. APP. P. 9.4(i)(3) ......................................................................................10
  TEX. R. APP. P. 9.5(b)..........................................................................................10
  TEX. R. APP. P. 26.3 ...............................................................................................1
  TEX. R. APP. P. 38.2(a)(1)(A) ............................................................................... ii
  TEX. R. APP. P. 38.2(a)(1)(B) .................................................................................3




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                  ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief



TO THE HONORABLE FOURTH COURT OF APPEALS:

      Now comes the State of Texas, by and through Nicholas “Nico” LaHood,

Criminal District Attorney of Bexar County, Texas, and the undersigned assistant

criminal district attorney, with the filing of the following brief.



                              STATEMENT OF THE CASE

      Edward Romero, hereinafter referred to as Appellant, was convicted by a

jury for assaulting Melissa Romero with a deadly weapon (C.R. at 7; VI R.R. at

58). See TEX. PENAL CODE § 22.02(a)(2). After finding that Appellant was a

habitual felon, the trial court pronounced a life sentence on June 2, 2014 (I

Punishment R.R. at 1, 75) and entered a judgment of conviction with a certification

of the right to appeal (C.R. at 87–88, 89). See id. at § 12.42(d). Appellant filed a

notice of appeal on July 17. 2014 and this Court subsequently granted a motion

extending the filing deadline. See TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP.

P. 26.3.




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               ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief



                              ISSUE PRESENTED


Sole Issue:   Was the jury’s verdict rejecting self-defense supported by
              sufficient evidence?




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                              STATEMENT OF FACTS

      Supplemental citations to the record are included under each point of error

below. See TEX. R. APP. P. 38.2(a)(1)(B).




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                         SUMMARY OF THE ARGUMENT

Sole Point of Error: The jury erred in not finding Appellant “not guilty” based on
                     the Appellant’s assertion of self-defense.

State’s Response:     The only evidence supporting Appellant’s self-defense claim
                      is thin, circumstantial evidence. On the other hand, there is
                      ample direct and circumstantial evidence that both supports
                      Appellant’s guilt and defeats his self-defense claim. The
                      jury rationally rejected the former and accepted the latter.




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                                     ARGUMENT

   Standard of Review
      The prosecution must present sufficient evidence to enable a “rational trier

of fact” to find, beyond a reasonable doubt, that a defendant is guilty of each

element of the charged offense. Jackson v. Virginia, 443 U.S. 307, 324 (1979);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). A reviewing court

should “defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their

testimony.” Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (citing

Jackson, 443 U.S. at 319). When the record reflects conflicts in the evidence, a

reviewing court should “presume that the factfinder resolved the conflicts in favor

of the prosecution.” Clayton, 235 S.W.3d at 778 (citing Jackson, 443 U.S. at 326).

Circumstantial evidence should be reviewed in the same manner as direct evidence

and circumstantial evidence alone can be sufficient to support a verdict of guilt.

Clayton, 235 S.W.3d at 778 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007)).

      When reviewing a jury’s rejection of a defendant’s claim of self-defense, a

court must “determine whether after viewing all the evidence in the light most

favorable to the prosecution, any rational trier of fact would have found the

essential elements [of the offense] beyond a reasonable doubt and also would have



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found against [the defendant] on the self-defense issue beyond a reasonable

doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).


   Applicable Law: Aggravated Assault and Self-Defense
      A person commits aggravated assault by either intentionally, knowingly or

recklessly causing serious bodily injury; or by intentionally, knowingly or

recklessly causing bodily injury while using or exhibiting a deadly weapon. See

TEX. PENAL CODE §§ 22.01(a)(1), 22.02(a)(1) & 22.02(a)(2). A person is justified

in using force against another “when and to the degree the actor reasonable

believes the force is immediately necessary to protect the actor against the other’s

use or attempted use of unlawful force. Id. at § 9.31(a). The reasonableness of the

actor’s belief and appropriateness of the level of force used are questions of fact to

be resolved by the jury. Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App.

1987).


   Application of the Law to the Present Record
      In this case, the jury only heard one side of the story. Melissa testified that

Appellant entered her apartment through the window and attacked her with a knife

(IV R.R. at 85–94, 182–83). The doctor who treated her that night testified that

she received wounds to her neck and arm that put her life in jeopardy (V R.R. at

170–76).    The only evidence suggesting Appellant acted in self-defense was

medical records indicating that Appellant had some cuts on his hands; however, the

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records characterized those cuts as “superficial” and “self-inflicted” (V R.R. at

184, 186).    During the jury charge conference, the trial court responded to

Appellant’s request for a self-defense instruction: “All right. I’m going to let it in.

But the only reason I’m going to put it in there is because it’s so easy for it to be an

issue on appeal later on.” (VI R.R. at 7).

      Appellant’s argument is largely premised on the fact that Melissa was

impeached with her prior statements and the circumstances of her relationship with

Appellant. However, the legal sufficiency standard of review does not allow this

Court to second guess the jury’s determination of whether a particular witness was

telling the truth. Looking at the record in the light most favorable to the verdict,

this Court must find that the conviction is supported by legally sufficient evidence.

Miranda v. State, 350 S.W.3d 141, 149 (Tex. App.—San Antonio 2011, no pet.)

(concluding that jury’s rejection of self-defense was supported by legally sufficient

evidence and declining to reconsider witness credibility).


   The trial court correctly instructed the jury on self-defense.
      Though he does not raise a separate point of error, Appellant complains that

the trial court incorrectly instructed the jury on the law of self-defense.

Appellant’s hand-written notations in his appendix suggest that the trial court erred

by phrasing the second part of the application portion of the self-defense




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instruction in the disjunctive instead of the conjunctive (C.R. at 70–71). Appellant

does not cite to any authority to support his position.

      Once a defensive issue is raised by the evidence, “the court shall charge that

a reasonable doubt on the issue requires that the defendant be acquitted.” TEX.

PENAL CODE § 2.03(d). However, the law of self-defense is a dense statute filled

with many conditions and presumptions. Id. at § 9.31.

      Based on the trial court’s charge, if the jury found beyond a reasonable

doubt that Appellant’s “use of deadly force was in response to verbal provocation

alone” (C.R. at 71), then they would have been required to find Appellant guilty.

This is consistent with the law of self-defense. See id. at § 9.31(b)(1). Likewise, if

the jury found beyond a reasonable doubt that Appellant “did not reasonably

believe that the use of force and degree of force used were immediately necessary

to protect himself against Melissa Romero’s use or attempted use of deadly force”

(C.R. at 70–71), then they would have been required to find Appellant guilty. This

is consistent with the law of self-defense. See id. at §§ 9.31(a) & 9.32(a). Still, if

the jury found beyond a reasonable doubt that Appellant provoked Melissa and did

not abandon the encounter (C.R. at 71), then they would have been required to find

Appellant guilty. This is consistent with the law of self-defense. See id. at §

9.31(b)(4). Because a single finding beyond a reasonable doubt on each one of




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these issues was sufficient to support a verdict in favor of the State, the trial court

did not err by phrasing these issues in the disjunctive.

      The trial court correctly charged the jury and the evidence enabled them to

rationally convict Appellant of aggravated assault. Accordingly, Appellant’s sole

point of error should be overruled.

                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee State prays the Court

overrule Appellant’s point of error and affirm the trial court’s judgment of

conviction and sentence.

                                           Respectfully submitted,

                                           NICHOLAS “NICO” LAHOOD
                                           Criminal District Attorney
                                           Bexar County, Texas

                                                           /s/ Nathan E. Morey
                                           NATHAN E. MOREY
                                           Assistant Criminal District Attorney
                                           State Bar No. 24074756
                                           101 West Nueva Street, Suite 720
                                           San Antonio, Texas 78205
                                           Voice: (210) 335-2414
                                           Fax: (210) 335-2436
                                           Email: nathan.morey@bexar.org
                                           Attorneys for the State of Texas




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                 ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief



                            CERTIFICATE OF SERVICE

      I, Nathan E. Morey, hereby certify that, pursuant to Texas Rule of Appellate

Procedure 9.5(b), a true and correct copy of the above and forgoing brief was

mailed to William Baskette on Wednesday, March 11, 2015.

                         CERTIFICATE OF COMPLIANCE

      I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate

Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above response contains 1,918 words

according to the “word count” feature of Microsoft Office.

                                                       /s/ Nathan E. Morey
                                          NATHAN E. MOREY
                                          Assistant Criminal District Attorney
                                          State Bar No. 24074756
                                          101 West Nueva Street, Suite 720
                                          San Antonio, Texas 78205
                                          Voice: (210) 335-2414
                                          Fax: (210) 335-2436
                                          Email: nathan.morey@bexar.org
                                          Attorney for the State of Texas

cc: WILLIAM L. BASKETT
    Attorney at Law
    State Bar No. 01871400
    110 West Nueva Street
    San Antonio, Texas 78204
    Voice: (210) 930-1200
    Fax: (210) 282-2917
    Email: …
    Attorney for Appellant




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