Opinion issued October 11, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00914-CR
                           ———————————
                        TONY GONZALES, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1438405


                         MEMORANDUM OPINION

      Tony Gonzales and his roommate, Juan Carlos Leiva-Delgado, went to the

parking lot of a neighborhood bar and drank in their car. About an hour after they

arrived, Leiva was dead from multiple stab wounds and blunt head trauma. The

police found Gonzales hiding in the bushes with blood on his shirt and a broken
knife in his pocket. At his murder trial, Gonzales argued self-defense. The jury

rejected that defense and found Gonzales guilty. The trial court sentenced him to

65 years’ confinement.

      On appeal, Gonzales argues for an acquittal because there is legally

insufficient evidence to support the jury’s rejection of his self-defense claim.

Alternatively, if we do not reverse his conviction, he argues that we should modify

the judgment of conviction to delete an erroneous deadly-weapon finding that the

crime was committed with a firearm.

      We modify the judgment to delete “firearm” and replace it with “knife.” We

affirm the judgment as modified.

                                   Background

      Several years ago, Leiva moved in with Gonzales and Gonzales’s common-

law wife. The men became close friends and often drank and socialized together.

One night they bought some beer and drove to the parking lot of a neighborhood

bar to drink in Leiva’s car.

      The bar’s surveillance video was admitted into evidence. It shows that, about

one hour after Leiva parked his car in the bar parking lot, Leiva quickly jumped

out of his car, and Gonzales chased him. Leiva fell to the ground between two

vehicles. Gonzales ran to the same place and dropped down between the cars. Both




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men were out of the camera’s view for fourteen seconds. Then, Gonzales stood up,

said something to bar patrons who were walking by, and ran off.

      When emergency personnel arrived several minutes later, they found Leiva

dead in the same location where he had fallen. They also found Gonzales squatting

in some bushes near Leiva’s parked car. He claimed to know nothing about Leiva

or Leiva’s vehicle. After connecting Gonzales to the vehicle, noting blood on his

shirt and in the car, and finding a broken knife handle in his pocket, the police

arrested him. The indictment alleged that Gonzales caused Leiva’s death by

stabbing him with “a knife” or “a box cutter” or striking him with “his hand” or

“an unknown object.”

      At trial, Gonzales testified that the two friends were sitting in Leiva’s car

talking about soccer when they began to argue over which of their two favorite

teams was better and which had the best star player. According to Gonzales, Leiva

unexpectedly lunged at him from the driver’s seat and attempted to stab him with a

knife. Gonzales blocked the blow with his left hand and hit Leiva in the throat with

his right hand, causing the knife to fall. Gonzales picked up the knife and,

according to his testimony, stabbed Leiva in self-defense. Gonzales was asked on

cross-examination whether he had stomped on Leiva, causing his head injury. He

responded, “I don’t remember. I don’t recall. No.”




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      The State argued that Gonzales repeatedly stabbed Leiva in the car, chased

him through the parking lot—as demonstrated on the surveillance video—and,

when he got to Leiva’s fallen body, stomped on Leiva, causing his blunt head

trauma. The State presented evidence suggesting that the two men may have been

fighting over a woman they both had dated.

      That woman testified at trial. She said that she dated Leiva, their relationship

ended amicably, then she began an affair with Gonzales. She testified that she

became afraid of Gonzales because he was very jealous. Gonzales told her that she

had to stay away from Leiva. She ended the affair with Gonzales because of his

jealousy, but he continued to text her. There was evidence of texts between the

woman and Gonzales the same day that Gonzales stabbed Leiva. In those

messages, Gonzales indicated that he wanted to continue the relationship, while

she maintained that she wanted him to leave her alone.

      Gonzales conceded that he had told the woman to stop socializing with

Leiva and that she ended their affair because of his jealousy. But he denied that he

and Leiva had any animosity toward each other as a result. According to Gonzales,

the fight in the bar parking lot was about soccer players, not the woman.

      The medical examiner testified about Leiva’s injuries. He died from stab

wounds and blunt head trauma. Leiva had seven stab wounds to his chest, which




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were consistent with the size of the knife found at the scene. He also had defensive

stab wounds and other superficial injuries to his arms.

      Regarding his head wound, the medical examiner described it as a “pattern

contusion,” meaning that there is a visible pattern on the wound that would match

the pattern of whatever object struck Leiva’s head. She agreed that the pattern

might match a shoe sole, but she testified that no effort was made to analyze

whether it matched Gonzales’s shoe. She testified that the pattern contusion on

Leiva would not be consistent with him simply falling to the parking lot’s gravel

surface because gravel does not have the “mosaic pattern that we saw on the

injury.”

      The jury was given an instruction on self-defense, informing it that “a person

is justified in using force against another when and to the degree he reasonably

believes the force is immediately necessary to protect himself against the other

person’s use or attempted use of unlawful force.” The jury was instructed that it

should return a verdict of not guilty if it had “a reasonable doubt as to whether or

not [Gonzales] was acting in self-defense.” The jury found Gonzales guilty of

murder “as charged in the indictment,” implicitly rejecting his self-defense claim.

Gonzales elected to have the trial court sentence him, and he received a sentenced

of 65 years’ confinement. The judgment of conviction included the following

deadly-weapon finding: “Yes, a firearm.”


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      Gonzales appeals his conviction.

                     Sufficiency of Evidence on Self-Defense

      In his first issue, Gonzales contends that there is legally insufficient

evidence to support the jury’s rejection of his self-defense claim.

A.    Standard of review

      We review sufficiency of the evidence using the standard enunciated in

Jackson v. Virginia, 443 U.S. 307, 318−20, 99 S. Ct. 2781, 2788–89 (1979). See

Brooks v. State, 323 S.W.3d 893, 898–912 (Tex. Crim. App. 2010). Under that

standard, “the relevant question is whether, after viewing 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.” See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We consider all reasonable inferences that may be drawn from the evidence

in making our determination, including all direct and circumstantial evidence.

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

      Evidence is insufficient in four circumstances: (1) no evidence exists that is

probative of an element of the offense in the record; (2) only a “modicum” of

evidence exists that is probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the alleged acts do not




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establish the criminal offense charged. See Jackson, 443 U.S. at 314–15, 320;

Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013).

      The jury has the exclusive role of evaluating the facts, the credibility of the

witnesses, and the weight a witness’s testimony should be given. Penagraph v.

State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,

125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury

may choose to believe all, some, or none of a witness’s testimony. See Davis v.

State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And

the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000).

      Under the Jackson standard, we defer to the factfinder “to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778. If there are conflicts in the evidence, we must presume the

factfinder resolved the conflicts in favor of the verdict and defer to that

determination, as long as it is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793. If the evidence is insufficient, we must reverse and enter an order of

acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).




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B.    Self-defense as justification for deadly force

      The use of deadly force is justified if a person believes that it is immediately

necessary to protect himself against another’s use or attempted use of unlawful

deadly force. TEX. PENAL CODE ANN. § 9.32(a)(2)(A). To support a self-defense

claim, the defendant must produce some evidence to show that he acted in self-

defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). If the

defendant presents such evidence, the State must disprove the self-defense claim

beyond a reasonable doubt. Id. The State’s burden is not one of production but,

instead, of persuasion, meaning that the State must prove its case beyond a

reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App.

1991). The jury implicitly rejects the self-defense claim if it finds the defendant

guilty. Zuliana, 97 S.W.3d at 594.

C.    Legally sufficient evidence supports jury’s verdict

      Gonzales argues that there was no evidence to contradict his self-defense

claim and, as a result, no rational jury could have found beyond a reasonable doubt

that he did not act in self-defense. In other words, no reasonable jury could have

rejected his self-defense theory to find him guilty of murder. We conclude that

there was legally sufficient evidence to support the jury’s verdict.

      Gonzales testified that there was no animosity between the two men about

the woman they both had dated. He said the two were arguing about soccer when


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Leiva unexpectedly lunged at him with a knife. But there was evidence that

Gonzales was trying to continue the affair, the woman was shunning Gonzales

because of his jealousy, and Gonzales was trying to prevent her continued contact

with Leiva. The jury, as factfinder, was free to weigh the credibility of the

witnesses’ testimony and believe or disbelieve any portion of their testimony. See

Davis, 177 S.W.3d at 358. The jury could have disbelieved Gonzales about the

source of the argument and the events in the car that led to the stabbing. See

Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d) (holding jury can choose to disbelieve witness even if witness’s

testimony is uncontradicted).

      Even if the jury accepted Gonzales’s explanation that Leiva used the knife

first, Gonzales testified that he had effectively disarmed Leiva before grabbing the

knife and stabbing Leiva. From this testimony, the jury reasonably could have

concluded that the use of deadly force was no longer immediately necessary.

      Additionally, the jury reasonably could have concluded that Gonzales’s self-

defense claim was not credible given the surveillance video showing him chase

Leiva through the parking lot (after stabbing him) instead of taking a more

defensive action, like remaining in the car and locking the doors. Cf. Sanchez v.

State, 418 S.W.3d 302, 309–10 (Tex. App.—Fort Worth 2013, pet. ref’d) (noting

that defendant chasing complainant is inconsistent with claim of self-defense). The


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evidence of Leiva’s head wound, combined with the video showing Leiva falling

between two cars and Gonzales disappearing in the same location, reasonably

could be interpreted to support the conclusion that Gonzales caught up to Leiva

where he had fallen and stomped on him, thereby causing the blunt head trauma

described by the medical examiner. From all of this evidence, the jury reasonably

could have inferred that Gonzales was the aggressor and rejected his self-defense

explanation. See Alvarado v. State, 822 S.W.2d 236, 240 (Tex. App.—Houston

[14th Dist.] 1991, pet. ref’d) (holding that sufficient evidence supported jury

determination that appellant was aggressor and rejection of self-defense theory).

      Based on all of the evidence presented at trial, viewed in the light most

favorable to the verdict, we hold that a rational jury could have found the essential

elements of the offense of murder beyond a reasonable doubt and also could have

found against Gonzales on the self-defense issue beyond a reasonable doubt by

disbelieving his testimony. See Saxton, 804 S.W.2d at 914; Denman v. State, 193

S.W.3d 129, 132–33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

      We overrule Gonzales’s first issue.

                             Deadly-Weapon Finding

      In his second issue, Gonzales contends that “the judgment erroneously

included a finding that [he] used a firearm to commit the offense” and asks that we

modify the judgment to delete that finding. The State agrees that the firearm


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reference is erroneous and that we should modify the judgment to delete the

specific reference to a firearm. The State, nonetheless, contends that we should

retain the more general finding that a deadly weapon was used, noting that the

indictment alleged use of a deadly weapon—described as a knife, Gonzales’s hand,

an unknown object, or a box cutter—and that the jury convicted Gonzales of

murder “as charged in the indictment.”

      Appellate Rule 43.2(b) authorizes appellate courts to modify trial court

judgments and affirm them as modified. TEX. R. APP. P. 43.2(b). Appellate Rule

43.6 authorizes us to make any other appropriate orders that the law and the nature

of the case require. TEX. R. APP. P. 43.6. The Court of Criminal Appeals has

affirmed judgments modified by appellate courts to reflect the juries’ deadly-

weapon findings, including one in which the indictment identified a deadly weapon

and the jury found the defendant guilty “as charged in the indictment.” See French

v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v. State, 813

S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d)). Here, the indictment listed a

knife as a deadly weapon used to commit the offense, the jury received evidence

that Gonzales stabbed Leiva with a knife, causing his death, and the jury found

Gonzales guilty “as charged in the indictment.”

      We sustain Gonzales’s second issue and modify the judgment concerning

the deadly-weapon finding to delete “firearm,” which we replace with “knife.”


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                                   Conclusion

      We affirm the judgment as modified.



                                                Harvey Brown
                                                Justice

Panel consists of Justices Jennings, Keyes, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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