                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00388-CR


RIGOBERTO CEDILLO                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      A jury convicted Appellant Rigoberto Cedillo of misdemeanor assault,

bodily injury to a family member.2 The trial court sentenced Appellant to ninety


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2010). The
affirmative family-violence finding entered in this case does not affect Appellant’s
sentence because the State did not allege that he had previously been convicted
of assault–family violence. See id. ' 22.01(b)(2)(A).
days in the county jail. In one point, Appellant contends that the evidence is

insufficient to support the jury’s guilty verdict. We affirm.

                       II. Factual and Procedural Background

      On May 6, 2009, the complainant Jose Alfaro and two of his adult

stepsons—Appellant and Eduardo Escamilla—were drinking beer in Alfaro’s

garage. Alfaro began drinking at approximately 2:00 p.m.; Escamilla (who lived

across the street and two houses down) joined him in the early evening; and

Appellant (who lived with Alfaro) joined them around midnight. Alfaro testified

that he was intoxicated that evening but that the three men were talking and

drinking together ―just fine.‖ At some point, Alfaro told Appellant that he needed

to start paying rent. When Appellant responded that he did not have any money

because he had sent it all to his father in Mexico, Alfaro stated that ―that wasn’t

right‖ and that he needed to help pay the bills before sending money to his father.

      When the prosecutor asked Alfaro about the broken nose that he had

sustained that night, he initially denied knowing exactly what had happened or

who had hit him.3 Ultimately, however, Alfaro testified that Escamilla had been

standing off to the side while Alfaro and Appellant talked and that Appellant hit

him in the face, knocking him to the ground. Alfaro testified that he did not think

that he had hit or attempted to hit Appellant. He further testified that the injury to

his nose ―hurt‖ and ―was bad‖ but that it had since healed.


      3
       Alfaro signed an affidavit of non-prosecution prior to trial.


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      Police Sergeants Willie Easley and Chris Herbert responded to Alfaro’s

residence in the early morning hours of May 7, 2009. The sergeants found Alfaro

outside on the ground, unconscious, with a bloody, severely broken nose.4

Sergeant Easley testified that, based on his experience and in his opinion, Alfaro

sustained a ―direct punch‖ that could not have been inflicted accidentally.

      Appellant’s wife, Gloria, was frantic, crying, and upset, and she repeatedly

walked and pointed toward a house diagonally across the street. Sergeants

Easley and Herbert approached the identified house, and Officer Jason East

arrived and joined them. While Sergeant Easley remained outside with three

individuals standing in the front yard, Sergeant Herbert and Officer East knocked

on the front door, entered the home with their weapons drawn, and found

Appellant hiding under a bed.

      When Appellant emerged, he claimed that Alfaro had ―punched‖ him and

that he had defended himself by returning a single punch. Although Sergeant

Herbert closely examined Appellant’s face, he did not see any injuries. When

asked if Appellant had any injuries, Sergeant Herbert recounted Appellant’s

statement that he had dislocated—and put back into place—a finger and that he

may have broken his hand. Based on Sergeant Herbert’s experience, however,

this was an ―offensive type wound, not necessarily a defensive type wound.‖


      4
        The medical records introduced by the State provided in part that Alfaro
suffered from a nasal fracture when he was admitted to the hospital the day of
the offense.


                                         3
While acknowledging that a dislocated finger could be the result of an offensive

or defensive injury, Sergeant Herbert testified that Appellant’s injury would have

resulted from him attacking someone rather than from someone attacking him.

Sergeant Easley testified that he did not see any marks on Appellant that

indicated that Alfaro had hit him.

      Eduardo Escamilla testified for the defense that he and Alfaro were

intoxicated when Appellant arrived, that Alfaro was ―already feeling good‖ and

―getting rowdy,‖ and that Appellant was sober. According to Escamilla, while

Appellant and Alfaro were talking, Appellant ―took one step back,‖ Alfaro

―reached out to swing,‖ and Appellant ―just reacted faster and just hit him one

good time in the nose.‖ When defense counsel asked if Alfaro ―was swinging‖ at

Appellant, Escamilla stated, ―[H]e sure did that attempt. You know, but of course,

if you’re drinking, you’re a little bit more slower.‖      Escamilla stated that

Appellant’s punch was not intentional or accidental but rather ―more like [a]

reflex. It’s just the way we are. We’ve been raised by a boxer.‖ In Escamilla’s

opinion, Appellant was defending himself.        On cross-examination, Escamilla

explained that Alfaro took a swing at Appellant but ―stopped in the middle of it

when he was reaching out.‖           Escamilla acknowledged that he had told the

responding officers that he had not seen what happened between Alfaro and

Appellant.




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                             III. Sufficiency of the Evidence

      In one point, Appellant contends that the evidence is insufficient to support

the jury’s guilty verdict. Specifically, he argues that the jury found him guilty even

though ―each witness related that he was acting in self-defense.‖

      A defendant has the initial burden of producing some evidence to support

a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003) (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)).

Once evidence is produced, the burden shifts to the State to disprove the

defense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913. This burden of

persuasion does not require the State to produce evidence to refute the self-

defense claim, but requires only that it prove its case beyond a reasonable doubt.

Id. Self-defense is an issue of fact to be determined by the jury, which is free to

accept or reject the defensive issue. Id. at 913–14. The fact finder is the sole

judge of the weight and credibility of the evidence. Brown v. State, 270 S.W.3d

564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). A jury’s

guilty verdict is an implicit finding rejecting the defendant’s self-defense theory.

Saxton,. 804 S.W.2d at 914.

      In reviewing the sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order 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); Brooks v. State, 323 S.W.3d 893, 912


                                          5
(Tex. Crim. App. 2010) (―[T]he Jackson v. Virginia standard is the only standard

that a reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is required

to prove beyond a reasonable doubt.‖). Thus, in reviewing the sufficiency of the

evidence to support the jury’s rejection of Appellant’s self-defense theory, we

examine all 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

offense and also could have found against Appellant on the self-defense issue

beyond a reasonable doubt. Saxton, 804 S.W.2d at 914 (citing Jackson, 443

U.S. 307).

      A person commits an assault if he intentionally, knowingly, or recklessly

causes bodily injury to another. Tex. Penal Code. Ann. § 22.01(a)(1). The

State’s indictment alleged in relevant part that Appellant ―intentionally or

knowingly cause[d] bodily injury to Jose Alfaro, a member of the defendant’s

family or household, by striking him with [Appellant’s] hand.‖5 The court’s charge

instructed the jury to find Appellant guilty if it found the elements of the offense as

charged in the information.



      5
        The court instructed the jury that ―A person acts intentionally, or with
intent, with respect to a result of his conduct when it is his conscious objective or
desire to cause the result.‖ See Tex. Penal Code Ann. ' 6.03(a) (Vernon 2003).
The court also instructed that ―A person acts knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his conduct is reasonably
certain to cause the result.‖ See id. ' 6.03(b).


                                          6
      The court’s charge also instructed the jury on self-defense.         See id.

§ 9.31(a) (Vernon Supp. 2010).6       The charge instructed the jury to acquit

Appellant if it found—or if it had a reasonable doubt—that, in striking Alfaro with

his hand, Appellant reasonably believed that his use of force was immediately

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

force. See id. The charge defined ―reasonable belief‖ as ―a belief that would be

held by an ordinary and prudent person in the same circumstances as the

defendant.‖ See id. ' 1.07(a)(42) (Vernon Supp. 2010).

      Based on the evidence, a rational jury could have found beyond a

reasonable doubt that (1) Appellant assaulted the victim and that (2) his use of

force was not justified. Both parties presented evidence that Appellant caused

bodily injury to Alfaro by striking him with his hand. The jury could have inferred

Appellant’s mental state—that he committed the assault either intentionally or

knowingly—from his acts, conduct, remarks, and the surrounding circumstances.

See Juarez v. State, 308 S.W.3d 398, 405 (Tex. Crim. App. 2010) (citing Moore

v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998)). Sergeant Easley testified

that Alfaro’s broken nose was one of the worst he had ever seen and that it could

not have been inflicted accidentally. See Patrick v. State, 906 S.W.2d 481, 487

(Tex. Crim. App. 1995) (holding that intent can be inferred from the extent of the

      6
       ―[A] person is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary to
protect the actor against the other’s use or attempted use of unlawful force.‖ Id. '
9.31(a).


                                         7
complainant’s injuries). Further, the jury was free to draw an inference of guilt

from Appellant’s conduct in fleeing the scene and hiding from the police under a

bed.   See Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007)

(noting that ―[e]vidence of flight evinces a consciousness of guilt‖).

       Additionally, the jury could have reasonably believed Alfaro’s testimony

that he never attempted to hit Appellant. Alternatively, the jury could have found

that Appellant failed to prove that he reasonably believed that his use of force

was immediately necessary to protect himself. Despite Appellant’s claims at the

time of the offense that Alfaro had punched him, none of the responding officers

saw any injuries to support Appellant’s claim.           Moreover, Appellant’s own

defense witness, Escamilla, testified that an intoxicated Alfaro merely attempted

to swing at Appellant but that he ―stopped in the middle of it when he was

reaching out.‖ Indeed, the jury could have determined that Appellant’s statement

(to the officers) and Escamilla’s testimony that Appellant was defending himself

were conclusory and did not address Appellant’s state of mind—i.e. that

Appellant put on no evidence that he reasonably believed force was immediately

necessary to protect himself.

       Viewing the evidence in the light most favorable to the verdict, we hold that

the evidence is sufficient to support both the jury’s finding of guilt and its rejection

of Appellant’s self-defense claim. We overrule Appellant’s sole point.




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                                IV. Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.


                                             ANNE GARDNER
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: February 10, 2011




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