                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00427-CR
                            NO. 02-11-00428-CR
                            NO. 02-11-00429-CR



JUNE G. LOPEZ A/K/A JUNE G.                                     APPELLANT
MISHLER

                                     V.

THE STATE OF TEXAS                                                    STATE


                                  ----------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                  ----------

                       MEMORANDUM OPINION1

                                  ----------

                              I. INTRODUCTION

     Appellant June G. Lopez a/k/a June G. Mishler appeals her three

convictions for aggravated assault with a deadly weapon. In two points, Lopez



     1
      See Tex. R. App. P. 47.4.
contends that the evidence is insufficient to support her convictions and that the

trial court abused its discretion by excluding relevant testimony. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Lopez and her husband, Larry Mishler, owned the Caribbean Cowboy Bar

& Grill. Chris Currier was a regular at the Caribbean Cowboy and had become a

close friend of Lopez and Mishler. On the evening in question, Lopez, Mishler,

and Currier went out together. After dinner and drinks, they continued their night

at the Caribbean Cowboy.

      Based on the events at the Caribbean Cowboy that night, which we

discuss in detail below, Lopez was charged with aggravated assault with a

deadly weapon against Damon Bullock, aggravated assault with a deadly

weapon against Saturnino Salzida Jr., and aggravated assault with a deadly

weapon against Currier.2 A jury convicted her in all three cases and assessed

punishment at two years’ confinement, ten years’ confinement probated for ten

years, and ten years’ confinement, respectively. The trial court sentenced her

accordingly and ordered the sentences to run concurrently.




      2
       The aggravated assault charges involving Bullock and Salzida were both
based on threatening them with imminent bodily injury while using a gun, and the
aggravated assault charge involving Currier was based on causing him bodily
injury by shooting him with a gun. See Tex. Penal Code Ann. §§ 22.01(a),
22.02(a) (West 2011).


                                         2
                          III. SUFFICIENCY OF THE EVIDENCE

         In her first point, Lopez argues that the evidence is insufficient to sustain

her convictions because the evidence conclusively shows that she was acting in

self-defense and in defense of a third person, Mishler.

                           A. Standard of Review and
         Law on Self-Defense and Defense-of-Third-Persons Justifications

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). This standard gives full play to the responsibility of the trier of

fact 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; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are



                                           3
reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

      A person commits assault if she (1) intentionally, knowingly, or recklessly

causes bodily injury to another or (2) intentionally or knowingly threatens another

with imminent bodily injury. Tex. Penal Code Ann. § 22.01(a). A person commits

aggravated assault if she commits assault and uses or exhibits a deadly weapon

during the commission of the assault. Id. § 22.02(a)(2).

      It is a defense to aggravated assault that the conduct in question is

justified. Id. § 9.02 (West 2011). Whenever the use of force is justified, the

threat of force is similarly justified. Id. § 9.04 (West 2011). A person is justified

in using force against another when and to the degree the person reasonably

believes the force is immediately necessary to protect herself against another’s

use or attempted use of unlawful force. Id. § 9.31(a) (West 2011). ―Reasonable

belief‖ means a belief that would be held by an ordinary and prudent person in

the same circumstances as the actor.          Id. § 1.07(a)(42) (West 2011).     Self-

defense is inapplicable if the actor said or did something to provoke the other’s

use or attempted use of unlawful force as a pretext for inflicting harm upon the

other; this is known as the doctrine of provocation or ―provoking the difficulty.‖ Id.

§ 9.31(b)(4); Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998).


                                          4
      A person is justified in using force against another to protect a third person

if (1) under the circumstances as the actor reasonably believes them to be, the

actor would be justified in using self-defense to protect herself against unlawful

force she reasonably believes to be threatening the third person she seeks to

protect and (2) she reasonably believes that this intervention is immediately

necessary to protect the third person. Tex. Penal Code Ann. § 9.33 (West 2011).

As with self-defense, the provocation doctrine can apply as a bar to the defense-

of-third-person justification. See Berry v. State, 80 Tex. Crim. 87, 90, 188 S.W.

997, 999 (1916). If the interfering party knows that the third person has provoked

the difficulty, the interfering party’s subsequent use of force is not justified. See

id.

      After the defendant has introduced some evidence supporting a defense,

the State bears the burden of persuasion to disprove it. Zuliani v. State, 97

S.W.3d 589, 594 (Tex. Crim. App. 2003) (explaining that a conviction produces

an implicit finding against the defensive theory). This burden does not require

the State to introduce evidence disproving the defense; rather, it requires the

State to prove its case beyond a reasonable doubt. Id. To determine sufficiency

of the evidence to disprove a nonaffirmative defense, the appellate court asks

―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 found against

appellant on the [defensive] issue beyond a reasonable doubt.‖ Saxton v. State,


                                         5
804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see also Smith v. State, 355

S.W.3d 138, 144–47 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (applying

Saxton and Zuliani to the jury’s rejection of the defendant’s self-defense and

defense-of-third-person theories).

      Because Lopez is appealing three convictions for aggravated assault, each

with its own facts, we will discuss separately the sufficiency of the evidence

supporting each conviction.    In each case, we must decide whether there is

sufficient evidence, viewed in the light most favorable to the prosecution, to allow

a rational jury to find the elements of aggravated assault with a deadly weapon

beyond a reasonable doubt and find against Lopez’s defensive theories beyond a

reasonable doubt. See Saxton, 804 S.W.2d at 914.

         B. Sufficiency of the Evidence: Aggravated Assault of Bullock

      At trial, seven eyewitnesses testified about the events that took place at

the Caribbean Cowboy. The testimony from the State’s witnesses varied from

one another to an extent, but the testimony between the State’s witnesses and

Lopez’s witnesses varied sharply.

                 1. The State Portrayed Lopez as the Aggressor

      Salzida was a former employee of the Caribbean Cowboy and a friend of

Lopez. Salzida hung out and played darts with Lopez and Mishler on the night in

question. James Eads, a frequent patron of the Caribbean Cowboy, also joined

the group to play darts. Bullock was bartending at the Caribbean Cowboy that

night. Darrell, an off-duty bartender at the Caribbean Cowboy, showed up at the


                                         6
bar intoxicated. Darrell asked for help getting home. Against the Caribbean

Cowboy’s policy, Bullock let Darrell go behind the bar so they could figure out

how to get him home. Lopez and Mishler approached Bullock to question him as

to why Darrell was behind the bar.

      Bullock testified that Lopez and Mishler then began accusing him of giving

away free drinks. Bullock was counting credit card receipts and arguing with

Lopez and Mishler, who were also arguing with each other. At some point during

the argument, Bullock commented that he was not surprised that Lopez and

Mishler were arguing again.     In response to his comment, Mishler yelled at

Bullock, ―Don’t ever say anything about me and my wife like that,‖ and then

slapped the credit card receipts out of his hand. Bullock pushed Mishler into the

bar’s sink. Lopez yelled at Bullock, ―Oh, you’re going to push my husband like

that[?]‖ She ran toward Bullock but tripped and fell before reaching him. She got

up, straightened her weave, and told Bullock that she was going to get a gun.

      Bullock and Mishler began wrestling on the floor behind the bar. Mishler

had ahold of Bullock’s legs, preventing him from getting up. During this time,

Lopez walked to her office and returned with a gun. Salzida and Eads tried to

get Mishler to let Bullock get up and kept telling Mishler, ―Let him go, Let him go.

He wants to leave.‖ Lopez then fired a warning shot. Eads testified that Mishler

and Bullock had separated before Lopez fired the gun:

             When I rounded the corner, I grabbed [Bullock]’s arm to start
      trying to get him to stop with their fight. And [Salzida] said,
      ―[Lopez]’s going for a gun‖—you know, ―[S]he’s going for a gun.‖


                                         7
      And I said, ―[Bullock], stop, stop.‖ And he looked at me and said,
      ―Okay, I quit, I’m done.‖

              And, at that point, we—then we’re working on [Mishler] saying,
      ―[Mishler], let go, let go, let’s get up.‖ And [Salzida] and I grabbed
      [Mishler], pulled him to the side. And so, at that point, it’s all broken
      up, it’s stopped. And within a second, the gun went off behind us.

Eads further clarified that when Lopez fired the warning shot, the situation was

already under control.

      After the warning shot, Lopez pointed the gun at Bullock, who was now by

himself on the ground, and yelled, ―I’ll kill you . . . . You don’t attack me in my

bar.‖ Salzida told Lopez that the gun was unnecessary, and she turned and

pointed the gun at him, ordering him to stay out of it. Lopez then turned and

pointed the gun back at Bullock. Eads told Bullock it was time to leave. Bullock

agreed.

                  2. Lopez Portrayed Bullock as the Aggressor

      The defense called Lopez and Mishler as witnesses. According to their

testimony, Lopez was concerned that Bullock was giving his roommate Jason

free drinks at the bar that night.     She told Mishler to help her monitor the

situation. Over the next two hours, the couple observed Bullock give Jason more

free drinks.

      Lopez and Mishler began questioning Bullock about the free drinks he

gave Jason.    When Bullock denied giving away the drinks, Mishler ordered

another employee to get the scales so they could take an inventory of the

alcohol. Bullock then said he was quitting and asked Mishler if he really thought


                                         8
Bullock was stealing. Mishler responded that giving away drinks is the same as

stealing. Bullock lowered his head and rammed Mishler into the bar’s sink.

      Mishler, who was trying to regain his balance after the push, saw Bullock

move toward the open end of the bar toward Lopez. Mishler feared that Bullock

was going to harm Lopez so Mishler put his foot out to trip Bullock; they both fell

to the ground. Mishler grabbed Bullock’s legs to prevent him from getting up.

Bullock punched Mishler repeatedly. Lopez went over and pulled on Bullock’s

shirt to try to help Mishler. Bullock responded by turning and hitting Lopez into

the wall.

      Lopez testified that she was scared for her own life and for Mishler’s life.

Lopez ran into her office to grab a gun, re-clipping her weave in her hair as she

ran. When she returned from the office, she saw Bullock punching Mishler, so

she fired a warning shot to get Bullock to stop. Bullock then separated from

Mishler, but Lopez kept the gun pointed at him. Bullock told her to go ahead and

shoot him, and Lopez responded that he needed to leave.

              3. Sufficient Evidence to Support the Jury’s Rejection
                          of Lopez’s Defensive Theories

      Lopez argues that she was justified in using deadly force against Bullock

because the evidence conclusively shows that she was acting in self-defense

and in defense of Mishler. See Tex. Penal Code Ann. §§ 9.31, .33. The trial

court instructed the jury on these defenses and on provocation.




                                        9
      By finding Lopez guilty of aggravated assault of Bullock, the jury implicitly

rejected her self-defense theory and chose to believe the State’s witnesses and

to disbelieve Lopez’s and Mishler’s testimony. See Saxton, 804 S.W.2d at 914.

The jury could have concluded that there was no reasonable basis for Lopez to

believe the threat of force was immediately necessary to defend herself based on

the State’s evidence that Bullock never hit her, that she fell because she tripped

as she was coming at Bullock, and that after she sat up and fixed her hair, she

walked away from the bar to her office and returned with a gun. See Tex. Penal

Code Ann. § 9.31(a). The jury also could have concluded that Lopez’s threat of

deadly force was not proportional to any threat posed by Bullock. See id.; see

also Boget v. State, 74 S.W.3d 23, 30 (Tex. Crim. App. 2002) (―[T]he general rule

is that a person should use only such force as is necessary in defending

himself.‖).

      Regarding the jury’s implicit rejection of Lopez’s defense-of-third-person

theory, the jury could have believed Eads’s testimony that Mishler and Bullock

were already separated and that the situation was under control when Lopez

fired the warning shot and pointed the gun at Bullock, so that Lopez’s threat of

force was not immediately necessary to protect Mishler. See Tex. Penal Code

Ann. §§ 9.31(a), .33. The jury also could have believed Eads’s testimony that

Lopez yelled, ―I’ll kill you . . . . You don’t attack me in my bar,‖ when pointing her

gun at Bullock, thereby demonstrating that her actions were not for the defense

of Mishler but were for retribution purposes. See id. § 9.33(2).


                                         10
      This court must defer to the jury to judge credibility of witnesses, assign

weight to their testimony, and draw reasonable inferences from basic facts to

ultimate facts in reaching its verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Blackman, 350 S.W.3d at 595. Viewing the evidence in the light most favorable

to the verdict, we conclude that a rational juror could have found beyond a

reasonable doubt that Lopez committed aggravated assault of Bullock and that

her actions were not justified by her purported self-defense or defense of Mishler.

See Jackson, 443 U.S. at 319; Isassi, 330 S.W.3d at 638; Saxton, 804 S.W.2d at

914. We overrule this portion of Lopez’s first point.

          C. Sufficiency of the Evidence: Aggravated Assault of Currier

      The eyewitness testimony about the events involving Currier also varied;

the State presented evidence that Mishler and Lopez were the aggressors, but

the defense painted a different picture.

                 1. The State Portrayed Lopez as the Aggressor

      After Lopez fired her warning shot, Bullock and Eads made their way

toward the Caribbean Cowboy’s lobby to leave. Currier then told Bullock not to

worry because he had taken a video of the entire incident on his phone.3 Currier

followed Bullock and Eads into the lobby, and Mishler followed all three. Currier

testified that Mishler then approached him from behind, demanded his phone,

and repeatedly punched him when he did not comply.

      3
       Currier thought he had recorded a video with his phone but he actually
had taken one very out-of-focus picture.


                                           11
        Bullock and Eads confirmed Currier’s testimony.      Bullock testified that

Mishler came up behind Currier, said something to him that Bullock could not

hear, and then punched Currier two or three times in the back of the head. Eads

testified that Mishler pushed Currier, Currier stumbled around, and then Mishler

grabbed the back of Currier’s shirt and repeatedly punched him in the side of the

face.

        Eads then grabbed Mishler and told him that Currier did not actually take a

video of the incident. While still holding Mishler, Eads turned back to see Lopez

walking toward the lobby with the gun pointed in his general direction. Eads

pushed Mishler to the side and headed for the exit door. Eads heard a gunshot,

turned back, and saw Currier drop to his knees. Currier yelled out that he had

been shot. He then crawled out of the lobby.

        Several people at the Caribbean Cowboy called 9-1-1. Eads and Salzida

stayed with Currier until the paramedics arrived.

                   2. Lopez Portrayed Currier as the Aggressor

        According to Mishler, he followed Bullock, Eads, and Currier to the lobby

so he could lock the door behind them. Once in the lobby, Currier changed his

mind about leaving and turned back toward the bar. When Mishler told him it

was time to go, Currier pushed him in an attempt to get back into the bar. Eads




                                         12
grabbed Mishler and held his arms behind his back. Currier punched Mishler in

the face at least twice.4

       Lopez, who trailed the group with her gun pointed in Bullock’s direction, did

not know why Currier was punching Mishler, but she said she feared for her

husband’s life. She testified that Currier ―hit [Mishler] one, two, and [she] was in

fear that he was going to kill him, so the gun went off.‖5 Lopez then saw both

Mishler and Currier fall to the ground. She was unsure who, if anyone, she had

shot until she saw Currier bleeding. Lopez ran back into her office to call 9-1-1.

              3. Sufficient Evidence to Support the Jury’s Rejection
                      of Lopez’s Defense-of-Mishler Theory

       Lopez argues that her aggravated assault against Currier was justified

because the evidence conclusively shows that she was acting in defense of

Mishler. See Tex. Penal Code Ann. § 9.33. The trial court instructed the jury on

this defense and on the doctrine of provocation, that is, whether Mishler’s

provocation precluded Lopez’s defense-of-third-person justification.6

       In convicting Lopez of aggravated assault on Currier, the jury must have

favored the State’s evidence and rejected Lopez’s evidence. See Saxton, 804

S.W.2d at 914. A rational juror could have believed the State’s evidence that


       4
       Currier testified that he never punched Mishler.
       5
       Mishler testified that he lost consciousness just before Lopez fired the
gun.
       6
       The trial court did not instruct the jury on self-defense in this case.


                                         13
Currier never punched Mishler and that Mishler was the sole aggressor so that

Lopez could not have reasonably believed that Currier was threatening Mishler or

that her intervention was necessary to protect him. See Tex. Penal Code Ann.

§ 9.33.    A rational juror also could have believed that Mishler provoked the

incident with Currier, while Lopez watched, such that Lopez’s actions were not

justified. See id. § 9.31(b)(4); Berry, 80 Tex. Crim. at 90, 188 S.W. at 999.

      This court must defer to the jury’s credibility determinations. Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Blackman, 350 S.W.3d at 595.           Viewing the

evidence in the light most favorable to that verdict, we conclude that a rational

juror could have found beyond a reasonable doubt that Lopez’s aggravated

assault against Currier was not justified by her purported defense of Mishler.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638. We

overrule this portion of Lopez’s first point.

          D. Sufficiency of the Evidence: Aggravated Assault of Salzida

      Lopez next argues that her aggravated assault against Salzida was

justified because the evidence conclusively shows that she pointed her gun at

him while acting in self-defense and in defense of Mishler. See Tex. Penal Code

Ann. §§ 9.31, .33.     In this case, however, the trial court did not provide jury

instructions on these justifications, Lopez did not object to the omission of the

instructions at trial or complain of their omission on appeal. Because we cannot

perform a sufficiency of the evidence review of implicit jury findings based on

instructions that were not before the jury, we overrule the remainder of Lopez’s


                                           14
first issue. See Hernandez v. State, 10 S.W.3d 812, 822 (Tex. App.—Beaumont

2000, pet. ref’d) (citing Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App.

1998)).

             IV. TRIAL COURT’S EXCLUSION OF RELEVANT TESTIMONY

      In her second point, Lopez argues that the trial court abused its discretion

by not allowing relevant testimony from Mishler regarding Bullock’s violent

history. The State responds, in part, that Lopez was not harmed by the exclusion

of this testimony. We will assume error and address harm.

                              A. Standard of Review

      Because any error in excluding the alleged evidence here is not

constitutional, we apply rule 44.2(b) and disregard any error if it did not affect

Lopez’s substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). A substantial right is affected when an error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have ―fair assurance that the error did not influence

the jury, or had but a slight effect.‖ Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998).




                                         15
      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also

consider the jury instructions, the State’s theory and any defensive theories,

whether the State emphasized the alleged error, closing arguments, and even

voir dire, if applicable. Id. at 355–56.

                           B. Any Error Was Harmless

      Lopez argues that the excluded testimony about Bullock’s violent past was

relevant to support her self-defense and defense-of-third-person justifications for

her assault against Bullock. The following exchange occurred when defense

counsel questioned Mishler about the physical struggle between him and Bullock:

      Q. Were you hitting [Bullock] back?

      A. No, I was not. I was just trying to keep him from getting up. My
      thought at the time was, [d]on’t let him get to my wife, because I just
      knew what he did to me. And I . . . feared for her more so than
      myself because I didn’t want him to get to her.

      Q. What was the reason that you thought he might try? Why would
      you think he might try to assault [Lopez]?

      A. I’ve seen him do it before. I’ve seen him do it to other people.

      [The State]: Objection, relevance, at this point.

      [The Trial Court]: Sustained.




                                           16
      Assuming, arguendo, that the trial court abused its discretion by sustaining

the State’s objection, other testimony in the record showed Bullock’s past violent

behavior. Lopez testified that just before Mishler tripped Bullock and brought him

to the ground, Lopez saw a mean and agitated look on Bullock’s face. Lopez

explained that this look reminded her of a time when she saw Bullock throw

another man from the bar into the lobby. Mishler also testified that he was afraid

to let Bullock get up from the ground because of ―the sheer size of the man‖7 and

because he ―had seen what [Bullock’s] done in the past to people.‖ Additionally,

to the extent that Lopez’s argument on appeal is that she should have been

allowed to present additional evidence of Bullock’s violent past, Lopez did not

preserve error to make that showing. See Tex. R. App. P. 33.1(a)(1); Tex. R.

Evid. 103(a)(2) (―Error may not be predicated upon a ruling which . . . excludes

evidence unless a substantial right of the party is affected, and . . . the substance

of the evidence was made known to the court by offer, or was apparent from the

context within which questions were asked‖); Holmes v. State, 323 S.W.3d 163,

168 (Tex. Crim. App. 2009).

      We conclude that, in the context of the entire case against Lopez, the trial

court’s purported error in sustaining the State’s relevancy objection did not have

a substantial or injurious effect on the jury’s verdict and did not affect Lopez’s



      7
      The jury heard testimony that Bullock was approximately six inches taller
and more than one hundred pounds heavier than Mishler.


                                         17
substantial rights. See King, 953 S.W.2d at 271. Thus, we disregard any error.

See Tex. R. App. P. 44.2(b). We overrule Lopez’s second point.

                                V. CONCLUSION

      Having overruled Lopez’s two points, we affirm the trial court’s judgments.




                                                  PER CURIAM

PANEL: WALKER, DAUPHINOT, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 11, 2013




                                       18
