                                                                                            ACCEPTED
                                                                                        01-14-00561-CR
                                                                             FIRST COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                  11/24/2015 4:10:53 PM
                                                                                  CHRISTOPHER PRINE
                                                                                                 CLERK
                              NO. 01-14-00561-CR


                                                       FILED IN
                  IN THE COURT OF APPEALS FOR THE1st COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                          FIRST DISTRICT OF TEXAS              11/24/2015 4:10:53 PM
                                                               CHRISTOPHER A. PRINE
                                                                        Clerk
                              HOUSTON, TEXAS


                            JONATHAN ROSARIO,
                                      Appellant

                                        V.

                              STATE OF TEXAS,
                                        Appellee


                              Appealed From The
                          186th Judicial District Court
                            Of Bexar County, Texas


                APPELLANT’S MOTION FOR REHEARING


TO THE HONORABLE COURT OF APPEALS:

      JONATHAN ROSARIO, the Appellant in Cause Number 2013-CR-5658 in the

186th District Court of Bexar County, Texas, pursuant to Rule 49 of the Texas Rules

of Appellate Procedure, submits this Motion for Rehearing moving this Honorable

Court to reconsider its Opinion of November 10, 2015 affirming the judgment and

sentence of conviction.

                                         1
                   GROUND FOR REVIEW NUMBER ONE

             THE COURT OF APPEALS ERRED BY RULING
             THAT THE JURY’S REJECTION OF THE
             APPELLANT’S CLAIM OF SELF-DEFENSE WAS
             SUPPORTED BY LEGALLY SUFFICIENT
             EVIDENCE.

                       ARGUMENT AND AUTHORITIES

      In the case at bar, this Court held that “the jury could have rationally chosen

not to believe [the Appellant’s] testimony about the sequence of events and thus

implicitly rejected his self-defense claim.” Rosario v. State, No. 01-14-00561-CR at

8 (Tex. App. - Houston [1st Dist.], November 10, 2015). The appropriate standard of

review, however, regarding whether or not the evidence was legally sufficient to

support the jury’s rejection of a self-defense claim is to view “all” the evidence – not

merely a defendant’s testimony. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010); Smith v. State, 355 S.W.3d 138, 144-145 (Tex. App. - Houston [1st Dist.]

2011, pet. ref’d). This Court in the case at bar, however, focused solely on the

Appellant’s testimony when this Court stated that, “By testifying, Rosario produced

‘some evidence’ to support a self-defense claim.” Rosario v. State, supra. This Court

failed to consider the testimony of other witnesses which also supported the self-

defense claim.

                                           2
      It is clear from all the evidence at trial that Hill (the complainant) was in an

agitated mood. (R - v.6 - 176-177). It was undisputed that a text message was sent

from the group Hill was with that stated, “Get ready, we fittin’ to fuck up Romello.”

(R - v.4 - 10, 12). The group Hill was with had knives, brass knuckles, and a taser. (R

- v.3 - 71-75, 122-123, 144; R - v.4 - 99; R - v.6 - 28-29, 75, 220). A person in the

group Hill was with made a statement that was threatening in that she had “a 40

Glock” nearby at her house and would use it. (R - v.6 - 178-180; R - v.7 - 34). Hill

stated to the other group, “I don’t give a fuck about you. Get the fuck away from me.”

(R - v.7 - 29-30). It was clear that everyone in Hill’s group wanted to fight. (R - v.6 -

187). Hill’s group had some dogs with them that were threatening. (R - v.6 - 135). If

there was fighting, there was a worry that the dogs might attack someone. (R - v.6 -

135). Hill and another person from his group were drinking alcohol at this time. (R -

v.7 - 31-32). The group Hill was with outnumbered the group which included the

Appellant, Jonathan. (R - v.5 - 44).

      Prior to fighting with Jonathan, Hill fought with two people. (R - v.4 - 19). A

member of Hill’s group brandished his taser in a threatening manner at the other

group. (R - v.3 - 147; R - v.4 - 208). At this point, Hill began fighting with another

person, and then assaulted another person and knocked out one person. (R - v.4 - 208-

210, 214; R - v.6 - 30-31, 104). Everyone “got wound up” and it turned into “a real

                                           3
big brawl.” (R - v.5 - 83; R - v.6 - 26, 104). Nobody wanted to stop any of the

fighting, and “a bunch of people have weapons” so it was “not a good situation.” (R -

v.6 - 191). A big fight broke out and “everybody just started swinging” and members

of Hill’s group “pulled out more weapons.” (R - v.6 - 192). Jonathan was terrified

when he saw the knives and Taser. (R - v.7 - 179). Everyone began fighting and it

was a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6 - 26).

      During the fighting, Jonathan attempted to stop Hill from hitting Shay and

continuing the fighting. (R - v.6 - 109-110, 112; R - v.7 - 195, 196). Hill struck

Jonathan who then fell to the ground. (R - v.6 - 109-110; R - v.7 - 197-203). Hill

(who was nineteen years old) had Jonathan (who was only seventeen years old) on

the asphalt and was beating Jonathan. (R - v.6 - 109-110; R - v.7 - 48-49, 52, 64,

159). At this time “it was a free for all. Everybody was hitting everybody.” (R - v.7 -

56). Hill was punching Jonathan in the head and banging his head on the asphalt

street. (R - v.7 - 203). During this assault, Jonathan sustained wounds to include a

head injury, chin injury, lip injury, bruising to the neck and chest, and an elbow

injury. (R - v.5 - 91; R - v.7 - 210-216; R - v.10 - State’s Exhibit 37). Jonathan

suffered a concussion from the beating by Hill, and Hill then began to choke

Jonathan. (R - v.7 - 178, 203, 205). Jonathan was blacking out and thought he was

going to die, so he pushed Hill away from him with his hand and stabbed Hill with

                                          4
the paring knife. (R - v.7 - 205). Someone pulled Hill off of Jonathan and the fighting

ended. (R - v.7 - 56).

      After the fighting ended, Hill stood up but something was wrong with him. (R -

v.6 - 153). When Hill stood, the fighting was already ended. (R - v.6 - 155). Jonathan

was standing by Shay. (R - v.6 - 154). Someone yelled that Hill had been “snuffed”

and everyone ran away from the area since Jonathan feared retaliation. (R - v.7 - 57).

Jonathan was very upset and shaking after the fight with Hill. (R - v.5 - 94). Jonathan

was bleeding while he was in the car and there was a lot of blood coming from

Jonathan. (R - v.6 - 200-201). Everything happened in about four or five minutes. (R -

v.4 - 124).

      Based upon a review of all the above evidence and not merely the testimony

of the Appellant, the jury’s rejection of the self-defense claim was not supported by

legally sufficient evidence. This Court erred by limiting its decision only to the

testimony of the Appellant. See Jackson v. Virginia, supra; Brooks v. State, supra;

Smith v. State, supra. This Honorable Court should withdraw its opinion of

November 10, 2015, and sustain the Appellant’s Point of Error One.

                   GROUND FOR REVIEW NUMBER TWO

              THE COURT OF APPEALS ERRED BY RULING
              THAT THE EVIDENCE WAS LEGALLY
              SUFFICIENT TO SUPPORT THE JURY’S
              REJECTION OF THE CLAIM THAT THE MURDER
              WAS COMMITTED UNDER THE IMMEDIATE
                                          5
             INFLUENCE OF SUDDEN PASSION ARISING
             FROM AN ADEQUATE CAUSE.

                       ARGUMENT AND AUTHORITIES

      In the case at bar, this Court held that, “The jury could have rationally

concluded that, by anticipating the fight and preparing a response, Rosario had time

to deliberate and was not acting under the immediate influence of sudden passion.”

Rosario v. State, supra, at 11. This Court stated that, “Rosario asserts that because

Hill attacked, choked, and injured him, the evidence is legally insufficient to support

the jury’s negative finding on the punishment issue of sudden passion.” Id. This Court

failed to consider all the evidence relied upon by the Appellant as to this issue.

      Witnesses testified that prior to the assault on the Appellant by Hill, everyone

“got wound up” and it turned into “a real big brawl.” (R - v.5 - 83; R - v.6 - 26, 104).

Many people were fighting, and “a bunch of people have weapons” so it was “not a

good situation.” (R - v.6 - 191). A big fight broke out and “everybody just started

swinging” and Hill’s group “pulled out more weapons.” (R - v.6 - 192). Jonathan was

terrified when he saw the knives and Taser brandished by Hill’s group. (R - v.7 -

179). Prior to the assault on the Appellant by Hill, everyone began fighting and it was

a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6 - 26).

      Witnesses testified that Hill struck the Appellant (Jonathan) who then fell to

the ground. (R - v.6 - 109-110; R - v.7 - 197-203). Several state and defense witnesses


                                           6
testified that Hill had Jonathan on the asphalt and was beating Jonathan. (R - v.6 -

109-110; R - v.7 - 48-49, 52, 64, 159). The evidence was undisputed that during this

assault on Jonathan by Hill, Jonathan sustained wounds to include a head injury, chin

injury, lip injury, bruising to the neck and chest, and an elbow injury. (R - v.5 - 91;

R - v.7 - 210-216; R - v.10 - State’s Exhibit 37). Jonathan suffered a concussion from

the beating by Hill, and Hill then began to choke Jonathan. (R - v.7 - 178, 203, 205).

Jonathan was blacking out and thought he was going to die, so he pushed Hill away

from him with his hand and stabbed Kevin with the paring knife. (R - v.7 - 205).

Someone pulled Hill off of Jonathan and the fighting ended. (R - v.7 - 56).

      Jonathan was very upset and shaking after the fight with Hill. (R - v.5 - 94).

Jonathan was bleeding while he was in the car and there was a lot of blood coming

from Jonathan. (R - v.6 - 200-201). Everyone in the car with Mello and Jonathan were

in shock since the rematch fight was not a clean fight given how Huizar’s crew

attacked Mello’s friends. (R - v.5 - 94). Everything happened in about four or five

minutes. (R - v.4 - 124).

      Jonathan could not have anticipated that Hill would assault Jonathan given the

size of the two groups and give the above described sudden turn of events that

precipitated the fighting between the two groups. Additionally, Jonathan could not

have anticipated that the fighting between the two groups would result in Hill

                                          7
assaulting Jonathan. The jury could not have rationally concluded that Jonathan

anticipated the fight as claimed by this Court. The jury could not have rationally

concluded, as claimed by this Court, that Jonathan had time to deliberate especially

since state and defense witnesses testified that, prior to Hill assaulting Jonathan,

everyone began fighting and it was a very intense and emotional situation (R - v.4 -

122, 124; R - v.6 - 26) and “it was a free for all. Everybody was hitting everybody.”

(R - v.7 - 56). Clearly, Jonathan was acting under the immediate influence of sudden

passion. Based upon a review of all the above evidence from state and defense

witnesses, the jury’s rejection of the sudden passion claim was not supported by

legally sufficient evidence. This Honorable Court should withdraw its opinion of

November 10, 2015, and sustain the Appellant’s Point of Error Two.

                 GROUND FOR REVIEW NUMBER THREE

             THE COURT OF APPEALS ERRED BY RULING
             THAT THE EVIDENCE WAS FACTUALLY
             SUFFICIENT TO SUPPORT THE JURY’S
             REJECTION OF THE CLAIM THAT THE MURDER
             WAS COMMITTED UNDER THE IMMEDIATE
             INFLUENCE OF SUDDEN PASSION ARISING
             FROM AN ADEQUATE CAUSE.

                      ARGUMENT AND AUTHORITIES

      In the case at bar, this Court held that “there was factually-sufficient evidence

to support the jury’s rejection of Rosario’s sudden-passion claim.” Rosario v. State,

supra, at 13. This Court stated that, “If the jury believed other witnesses instead of
                                          8
Rosario, it could have believed that Rosario had time to cool off between the end of

the fight and the moment he approached Hill with a knife.” Id. Jonathan’s testimony

was not the only evidence of sudden passion. This Court failed to consider all the

evidence relied upon by the Appellant as to this issue.

      State witnesses Godley and Valdez testified that prior to the assault on the

Appellant by Hill, everyone “got wound up” and it turned into “a real big brawl.” (R -

v.5 - 83; R - v.6 - 26, 104). State witness Stuckey testified that prior to the assault on

the Appellant by Hill, many people were fighting, and “a bunch of people have

weapons” so it was “not a good situation.” (R - v.6 - 191). State witness Suckey

testified that a big fight broke out and “everybody just started swinging” and Hill’s

group “pulled out more weapons.” (R - v.6 - 192). Jonathan was terrified when he saw

the knives and Taser brandished by Hill’s group. (R - v.7 - 179). State witnesses

James and Valdez testified that, prior to the assault on the Appellant by Hill, everyone

began fighting and it was a very intense and emotional situation. (R - v.4 - 122, 124;

R - v.6 - 26).

      Witnesses testified that Hill struck the Appellant (Jonathan) who then fell to

the ground. (R - v.6 - 109-110; R - v.7 - 197-203). Several state and defense witnesses

testified that Hill had Jonathan on the asphalt and was beating Jonathan. (R - v.6 -

109-110; R - v.7 - 48-49, 52, 64, 159). The evidence was undisputed that during this

                                            9
assault on Jonathan by Hill, Jonathan sustained wounds to include a head injury, chin

injury, lip injury, bruising to the neck and chest, and an elbow injury. (R - v.5 - 91;

R - v.7 - 210-216; R - v.10 - State’s Exhibit 37). Jonathan suffered a concussion from

the beating by Hill, and Hill then began to choke Jonathan. (R - v.7 - 178, 203, 205).

Jonathan was blacking out and thought he was going to die, so he pushed Hill away

from him with his hand and stabbed Kevin with the paring knife. (R - v.7 - 205).

Someone pulled Hill off of Jonathan and the fighting ended. (R - v.7 - 56).

       State witness Godley testified that Jonathan was very upset and shaking after

the fight with Hill. (R - v.5 - 94). State witness Stuckey testified that, after the fight,

Jonathan was bleeding while he was in the car and there was a lot of blood coming

from Jonathan. (R - v.6 - 200-201).

       Based upon the above testimony of state and defense witnesses, Jonathan’s

testimony was not the only testimony regarding the assault by Hill on Jonathan.

Contrary to this Court’s statement, state and defense witnesses other than Jonathan

established the fact that Jonathan did not have time to cool off between the time of

the fight with Hill and when Jonathan stabbed Hill with the knife during this fight.

There was not factually-sufficient evidence to support the jury’s rejection of

Jonathan’s sudden-passion claim. This Court failed to consider all the evidence relied

upon by the Appellant as to this issue. Based upon a review of all the above evidence

                                            10
from state and defense witnesses, the jury’s rejection of the sudden passion claim was

not supported by factually sufficient evidence. This Honorable Court should

withdraw its opinion of November 10, 2015, and sustain the Appellant’s Point of

Error Three.

                                       PRAYER

       WHEREFORE, for the reasons stated above and for the reasons stated in the

Brief for the Appellant, this Court should grant the Appellant’s Motion for Rehearing

and upon rehearing, reverse the judgment of the trial judge and enter a judgment of

acquittal, or in the alternative, remand this cause for a new trial, or in the alternative,

remand this cause for a new punishment hearing.

                                          Respectfully submitted,

                                          GROSS & ESPARZA, P.L.L.C.

                                          /s/ Michael C. Gross
                                          Michael C. Gross
                                          State Bar No. 08534480
                                          106 South St. Mary’s Street, Suite 260
                                          San Antonio, Texas 78205
                                          (210) 354-1919
                                          (210) 354-1920 Fax

                                          Attorney for the Appellant,
                                          JONATHAN ROSARIO




                                            11
                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing was emailed to
Enrico Valdez, Assistant District Attorney, jeanette.canales@bexar.org on the 24th
day of November 2015.

                                        /s/ Michael C. Gross

                       CERTIFICATE OF COMPLIANCE

1.    The brief complies with the type-volume limitation imposed by Rule 9.4(i) of
the Texas Rules of Appellate Procedure because the brief contains 2,496 words
excluding the signature, proof of service, certification, certificate of compliance, and
appendix.

2.     The brief complies with the typeface and the type style requirements of Rule
9.4(e) of the Texas Rules of Appellate Procedure because this brief has been prepared
in a proportionally spaced typeface using WordPerfect 6.1 in 14 point font and Times
New Roman type style.

                                        /s/ Michael C. Gross




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