                                 MEMORANDUM OPINION
                                        No. 04-10-00848-CR

                                  Jose Jesus Contreras MONREAL,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009CR0701
                       Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 15, 2012

AFFIRMED

           A jury found appellant, Jose Jesus Contreras Monreal, guilty of the murder of Jose

Gonzalez, Jr. and assessed punishment at thirty-five years’ confinement. We affirm.

                                          BACKGROUND

           Trial testimony established that Gonzalez, appellant’s nephew, came to appellant’s house

on the evening of September 19, 2008. Appellant was working on his truck, but eventually

stopped and he and Gonzalez drank beer together and played games through the night. Although
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disputed, there was testimony Gonzalez and appellant may have used drugs as well. Appellant

testified that the next morning he went back outside to work on his truck and Gonzalez stayed

inside the house and drank more beer. Appellant said he came back inside the house in the early

afternoon to get water and that Gonzalez handed him a picture to look at as he was walking to

the refrigerator. Appellant testified Gonzalez then became angry and wanted him to return the

picture, but appellant refused because he had not yet read the words on the back of the picture.

Appellant claimed Gonzalez hit him in the back and continued to hit him until he returned the

picture. Appellant then pushed him, ran outside, and grabbed a gun because he “wanted him out

of the house.” When he returned inside with the gun, appellant testified Gonzalez would not

leave and that Gonzalez reached for a knife from the kitchen counter. As Gonzalez was trying to

grab the knife, appellant admitted he shot Gonzalez. After that, appellant stated Gonzalez

grabbed a bottle, broke it against his own head, and told appellant he was going to kill him with a

piece of the glass. Appellant shot Gonzalez again before fleeing the residence. Appellant’s wife,

Irene Monreal, who was in her bedroom when the shooting took place, came out and called the

police. Gonzalez was air-lifted to a hospital where he eventually died from the gunshot wounds.

Two weeks later, appellant turned himself in to law enforcement.

        At trial, Gonzalez was described by Irene and appellant’s daughter, Leann Monreal, as

part of their family, although he did not live with them. However, Leann and Irene also testified

Gonzalez had a drug and alcohol problem and would become very violent after drinking. Trial

testimony established that appellant and Gonzalez had a turbulent relationship and often had

conflicts in the past.




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                             SUFFICIENCY OF THE EVIDENCE

       In his first issue on appeal, appellant complains the evidence was insufficient to sustain

the jury’s verdict of guilt and the implicit rejection of his self-defense claim. Appellant contends

the evidence does not prove he committed murder because he was acting in self-defense. As

such, appellant contends the State did not prove he intentionally or knowingly caused the death

of Gonzalez.

       In a sufficiency challenge, we review all the evidence in the light most favorable to the

jury’s verdict to determine whether any rational jury could have found the essential elements of

the charged offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899, 912 (Tex.

Crim. App. 2010). We 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. Id. at

899.

       At trial, appellant asserted self-defense and the jury was instructed accordingly.

Therefore, for the jury to find appellant acted in self-defense, it had to find he reasonably

believed the force was immediately necessary to protect himself against Gonzalez’s use or

attempted use of unlawful force. See TEX. PENAL CODE ANN. § 9.31(a) (West 2011). If an

accused asserts a defense, he or she bears the burden of production to raise evidence in support

of that defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once a defendant

meets this burden, then the State bears the burden of persuasion to disprove the defensive theory.

Id. However, the State does not need to produce evidence in meeting its burden—it must only

prove its case beyond a reasonable doubt. Id. Thus, when a jury makes a finding of guilt, it is

implied the jury also found against the defensive theory. Id.




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       Consistent with his claim of self-defense, appellant admitted to firing the weapon that

killed Gonzalez. However, appellant testified Gonzalez was the aggressor and that he shot

Gonzalez because Gonzalez hit him and threatened to kill him. Appellant also denied shooting

Gonzalez in the back. Nonetheless, the medical examiner testified Gonzalez was shot in the

back in a downward direction. Thus, the jury could have found appellant’s trial testimony was

not credible and rejected appellant’s self-defense claim because of the inconsistency in his

testimony as compared to the medical examiner’s testimony. See Wesbrook v. State, 29 S.W.3d

103, 111 (Tex. Crim. App. 2000) (“The jury is the exclusive judge of the credibility of witnesses

and of the weight to be given testimony, and it is also the exclusive province of the jury to

reconcile conflicts in the evidence.”).

       And, although appellant claimed he was defending himself when Gonzalez tried to grab

the knife, appellant himself admitted he got the gun before Gonzalez ever reached for the knife.

Further, the medical examiner testified there was no evidence Gonzalez was shot at a close

range. As a result, the jury could conclude Gonzalez was not close in distance to appellant—and

armed with only a broken piece of glass—therefore finding no reasonable belief that appellant’s

deadly force was immediately necessary. Also, the jury heard evidence appellant fled the scene

immediately after the shooting and remained hidden from law enforcement for two weeks. See

Bigby v. State, 892 S.W.2d 864, 883 (Tex. 1994) (“Evidence of flight or escape is admissible as a

circumstance from which an inference of guilt may be drawn.”). As a result, the jury could have

rejected appellant’s self-defense claim.

       After viewing the evidence in the light most favorable to the verdict and because the jury

is the sole judge of the witnesses’ credibility and the weight to be given their testimony, we




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conclude a rational trier of fact could have found the essential elements of murder beyond a

reasonable doubt, thereby implicitly rejecting appellant’s self-defense claim.

                                     EVIDENTIARY CHALLENGE

        In his second issue on appeal, appellant complains the trial court erred by allowing

testimony of his possible use and possession of drugs on the day of, and the night before, the

shooting. 1 Appellant contends this evidence was irrelevant and did not serve the State’s purpose

of explaining his state of mind to the jury.

        Prior to any testimony, the State requested permission from the trial court to question

witnesses about appellant’s possible cocaine use on the day of, and the night before, the

shooting. The State asserted this evidence went to the relationship of appellant and Gonzalez,

and also went to appellant’s state of mind at the time of the shooting. Appellant, however,

argued that mentioning the drug use would have a prejudicial effect that would overcome any

probative value.      Ultimately, the trial court allowed the State to question witnesses about

appellant’s possible drug use.

        We will assume without deciding the trial court erred. Accordingly, we must determine

whether the error was harmful. The Court of Criminal Appeals has instructed courts of appeals

that, when conducting a harm analysis under Texas Rule of Appellate Procedure 44.2(b), “an

appellate court need only determine whether or not the error affected a substantial right of the

defendant. To make this determination, appellate courts must decide whether the error had a

substantial or injurious effect on the jury verdict.” Llamas v. State, 12 S.W.3d 469, 471 n.2

(Tex. Crim. App. 2000). Substantial rights are not affected by the erroneous admission of

evidence if, after examining the record as a whole, we have a fair assurance that the error did not


1
  The State argues appellant waived this complaint by not objecting to the evidence; however, after a review of the
record, we believe the issue was preserved for our review.

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influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

App. 2002).

       Here, as previously discussed, appellant admitted he shot Gonzalez and the jury

implicitly rejected appellant’s claim of self-defense. The medical examiner testified Gonzalez

was shot in the back. Further, no one testified appellant actually used the drugs on the day of,

and the night before, the shooting. Instead, one witness denied even seeing drugs on the day in

question and the other witness only stated she saw drugs in “baggies,” but did not actually see

either of the men use the drugs. As such, we do not believe the mention of appellant’s possible

drug use on the day of the shooting “had a substantial or injurious effect on the jury verdict.”

Llamas, 12 S.W.3d at 471 n.2. Accordingly, we conclude the admission of the testimony

concerning the possible drug use did not harm appellant.

                                        CONCLUSION

       We overrule appellant’s issues on appeal and affirm the judgment of the trial court.



                                                            Sandee Bryan Marion, Justice

Do not publish




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