
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-07-00434-CR


Rodolfo Orive, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. D-1-DC-06-204579, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



M E M O R A N D U M    O P I N I O N

A jury found appellant Rodolfo Orive guilty of murder and assessed his punishment
at forty years' imprisonment.  See Tex. Penal Code Ann. § 19.02 (West 2003).  In two points of
error, appellant contends that his trial counsel was ineffective and that the district court erred by
overruling his motion for new trial without a hearing.  We overrule these points of error and affirm
the conviction.
On the evening in question, several people including appellant were gathered on the
grounds of an Austin middle school practicing dances for an upcoming quinceanera.  A car drove
past the school, and hand signs were exchanged between the occupants of the car and appellant.  The
driver of the car, Vidal Lopez, told his companions that he had had problems with appellant in the
past.  Although his friends urged him to drive on, Lopez decided to stop and confront appellant. 
When they saw Lopez stop, appellant and two of his friends, Froylan Padilla and Victor Sarmiento,
ran to appellant's car, retrieved a pistol belonging to Sarmiento, and returned to the rehearsal scene. 
After stopping, Lopez and two of his companions approached the quinceanera group
and announced that Lopez wanted to fight appellant.  Appellant accepted the challenge.  It was
agreed that this would be a "clean fight" with no weapons.  The combatants and a number of
spectators moved to the rear parking lot of the school, and the fight commenced.  Lopez soon got
the upper hand, forcing appellant to his knees and placing him in what was described as a head lock
or choke hold.  Some witnesses testified that appellant's face was turning purple and that he
appeared to have trouble breathing.  Another witness testified that appellant's life did not appear to
be in danger, although he was clearly losing the fight.  Appellant himself testified, "I couldn't talk,
I couldn't breathe, I couldn't do anything.  I was afraid for my life."
At this point, Padilla walked over to the two fighters, pointed Sarmiento's pistol at
Lopez, and ordered him to release appellant.  Lopez complied with this order.  Appellant then stood,
took the pistol from Padilla, and fatally shot Lopez just below his right eye.  Appellant testified that
he shot Lopez because he was "afraid for [his] life."  According to appellant, Lopez told him that
"if we would not shoot him, he was going to do it to us," and put his hand behind his back. 
Appellant testified that he believed that if he did not shoot Lopez, Lopez would shoot him.  Other
witnesses testified that they did not hear Lopez say anything to appellant, and there is no evidence
that Lopez or anyone with him was armed.  One witness testified that appellant told Lopez "you are
now f---ed" before shooting him.
Appellant and Padilla left the scene in a black car and drove to a house a few blocks
away, where they were seen speaking to a man and walking to the side of the house before running
away on foot.  Police later found several bullets under the air conditioning unit at the side of this
house.  Near midnight, appellant and Padilla went to the home of Luz Marie Gallego, the mother of
appellant's former girlfriend.  Gallego testified that appellant "looked bad" and that "[h]e couldn't
speak very well."  Appellant told Gallego that he had "killed a guy" and was thinking of going to
Mexico.  Appellant and Padilla were arrested later that night when a Jeep Cherokee in which they
were occupants was stopped for speeding.  Both men gave false names to the officers.  Several
packed suitcases were found in the Jeep.
There is evidence that the fight and resulting shooting were gang-related.  Appellant,
Padilla, and Sarmiento were wearing blue clothing at the middle school.  Austin police officers
familiar with gang activity testified that blue is a color favored by a gang known as the South Side
Crips.  Lopez was wearing red shoes, suggesting that he was a member of a different gang.  One of
the persons who was in the car with Lopez testified that on the night following the shooting,
appellant called him on the telephone and told him that "I shouldn't say anything and that I should
tell my friends that they should say nothing either because if somebody went down on his side they
were also going to go down on our side."
Appellant's bedroom was searched following his arrest.  The officer who conducted
the search testified that the room was decorated primarily in blue and recalled finding seven or
eight blue bandannas; there was testimony that members of the Crips wore such bandannas to show
their gang affiliation.  In a notebook, appellant had written "vistazo Bloods," which the officer
translated as "looking for blood," and "BK all day every day."  The officer testified that "BK" was
shorthand for "blood killer," a term commonly used by Crips.  In his own testimony, appellant
denied being a member of the Crips or any other gang.
In his first point of error, appellant contends that his trial counsel was ineffective
because he did not ask for a jury charge on the affirmative defense of duress.  See Tex. Penal Code
Ann. § 8.05 (West 2003).  To prevail on this claim, appellant must show that counsel's failure to
request a duress instruction was an error so serious that counsel was not functioning effectively, and
that the error prejudiced appellant's defense to such a degree that he was deprived of a fair trial. 
Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72
(Tex. Crim. App. 1999).  We must indulge a strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance.  Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994).  
A defendant is entitled to an instruction on every defensive issue raised by the
evidence, regardless of the strength of that evidence.  Hayes v. State, 728 S.W.2d 804, 807
(Tex. Crim. App. 1987).  Appellant urges that, in this case, the duress defense was raised by his
testimony describing Lopez's threat to shoot him and his belief that Lopez would kill him if he did
not shoot Lopez.
The duress defense applies when "the actor engaged in the proscribed conduct
because he was compelled to do so by threat of imminent death or serious bodily injury to himself
or another."  Tex. Penal Code Ann. § 8.05(a) (West 2003).  "Imminent" means something that is
impending, not pending; something on the point of happening, not about to happen.  Schier v. State,
60 S.W.3d 340, 343 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd).  Harm is imminent when
there is an emergency situation and it is immediately necessary to avoid that harm; when a split-second decision is required without time to consider the law.  Id.  A person is compelled to act
within the meaning of the duress defense only if confronted by force or threat of force that would
render a person of reasonable firmness incapable of resisting the pressure.  Tex. Penal Code
Ann. § 8.05(c). 
We believe that appellant's trial attorney could have reasonably concluded that
appellant's testimony did not raise the duress defense.  The only compulsion testified to by appellant
was his fear that Lopez was going to kill him.  Counsel could have reasonably concluded that the
trial court's instructions to the jury on the use of deadly force in self-defense and in defense of a third
person more closely conformed to appellant's testimony, and that these defenses were more
favorable to appellant than the duress defense because the State had the burden of disproving them. 
See Tex. Penal Code Ann. § 9.32 (West Supp. 2008), § 9.33 (West 2003).  Moreover, in light of the
jury's implicit finding beyond a reasonable doubt that appellant did not shoot Lopez in self-defense
or in defense of Padilla, there is no likelihood that the jury would have found by a preponderance
of the evidence that appellant shot Lopez under duress.  Appellant has not shown that trial counsel's
performance was ineffective.  Point of error one is overruled.
Appellant's second point of error is that the trial court erred by failing to conduct a
hearing on appellant's motion for new trial, which was overruled by operation of law.  See Tex. R.
App. P. 21.8.  A defendant is entitled to a hearing on his motion for new trial if the motion and
supporting affidavits raise matters not determinable from the record on which he would be entitled
to relief.  Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).  A hearing is not required
when the matters raised in the motion for new trial are subject to being determined from the record. 
Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).  The denial of a hearing on a motion
for new trial is reviewed for an abuse of discretion.  Wallace, 106 S.W.3d at 108.
Appellant's motion for new trial alleged that the jury's verdict was contrary to the law
and the evidence, and that appellant's trial counsel was ineffective for having failed "to establish
facts, and to submit a jury charge on duress or self defense."  The supporting affidavit, by the
attorney representing appellant on appeal, recited that appellate counsel had discussed the case with
appellant and believed that appellant "could establish grounds to submit a jury charge on duress or
self defense.  Mr. Orive explained that at the time of the incident he was in fear of imminent death
[or] severe bodily injury."
The claim that the verdict was contrary to the law and the evidence was not supported
by the affidavit and was in any event determinable from the record.  Contrary to the allegations in
the motion and affidavit, appellant testified at trial that he was in fear of imminent death when he
shot Lopez, and this self-defense claim was submitted to the jury (as was the claim that he shot
Lopez in defense of Padilla).  As we have explained, appellant's testimony did not raise the issue of
duress, and neither the motion nor the affidavit claim that there was any other evidence warranting
a duress instruction that counsel could have presented.  On this record, the trial court has not been
shown to have abused its discretion by allowing the motion for new trial to be overruled without a
hearing.  Point of error two is overruled.
The judgment of conviction is affirmed.

				___________________________________________
				Jan P. Patterson, Justice
Before Justices Patterson, Waldrop and Henson
Affirmed
Filed:   December 31, 2008
Do Not Publish
