Opinion
No. 04-17-00104-CR
05-09-2018
Dustin Lee OSBORNE, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR9229B
Honorable Jefferson Moore, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
Dustin Lee Osborne was convicted by a jury of murder, and the jury assessed his sentence at eighty years' imprisonment and a $10,000 fine. On appeal, Osborne contends the evidence is insufficient to support the jury's implicit rejection of his claims of self-defense and defense of a third person. Osborne also contends the trial court erred in failing to grant him a new trial based on the State's failure to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). We affirm the trial court' s judgment.
BACKGROUND
While Paige Gerber and her cousin Savannah Hardy were drinking beer by the pool at the apartment complex where Hardy lived, Gerber spoke with Ralph Michael Lopez through an internet chatroom. A short time later, Lopez brought some methamphetamine to the pool of the apartment complex. After snorting the methamphetamine and hanging out at the pool for an hour or two, Lopez drove Gerber and Hardy to his home where his wife and baby were present. After a few more hours of drinking and using drugs, Lopez's wife and Gerber left to drop off the baby at a relative's house, and Lopez and Hardy had sex while they were gone. After Lopez's wife and Gerber returned, they all continued to drink and use drugs.
Throughout the evening, Hardy was texting Gabriel Aguilar and asked him to be available to pick her and Gerber up when they were ready to leave. Aguilar was Gerber's ex-boyfriend, and Hardy considered him a friend even though Aguilar and Gerber broke up two or three weeks before the night in question. Aguilar is also Osborne's uncle. At some point, Lopez's cousin, Noe Quintanilla, joined the party at Lopez's house.
When Hardy was ready to leave, Lopez encouraged her to stay and invited her and Gerber to live at his house. Because Lopez did not want to take her home, Hardy texted Aguilar asking him to pick her up. When Hardy told Gerber that she had texted Aguilar to pick them up, Gerber became upset because she did not want anything to do with Aguilar since they had ended their relationship.
Aguilar drove to Lopez's house with Osborne in the front passenger seat and Sabrina Alcantar, Osborne's wife, in the rear driver's seat. When they arrived at Lopez's house around 1 a.m., Hardy testified she, Gerber, Lopez, Lopez's wife, and Quintanilla were in the driveway close to the house. Hardy testified they were outside waiting for Aguilar to arrive. Aguilar initially passed the house, but backed up in response to Hardy yelling out and texting him. Aguilar pulled in front of the house with his driver's side door perpendicular to the end of the driveway close to the street.
Osborne and Alcantar were ceremonially married, but the marriage certificate was never filed at the courthouse.
Hardy left the others and walked to the truck where she informed Aguilar that Gerber did not want to leave. While testifying at trial, Hardy denied that she was afraid and testified she was just uncomfortable because Lopez had asked her to have sex with him and his wife and invited them to live at his house. Osborne testified Hardy was hysterical and stated either that "they were trying to rape her" or "[h]e's trying to rape us." Hardy denied that she was hysterical or made any reference to rape.
Aguilar exited the truck and approached Gerber while Osborne moved to the rear passenger seat and Hardy got into the front passenger seat. Gerber yelled at Aguilar to leave, and Lopez also told him to leave. As Lopez followed Aguilar back to his truck, the men began to argue.
Osborne testified Lopez stopped at his car as he followed Aguilar down the driveway, and photographs of the scene showed the door of Aguilar's car was open. Hardy testified Lopez went to his car when Aguilar pulled onto the street but not as Lopez was following Aguilar down the driveway. Gerber also testified that Lopez went inside his car but had exited the car when Aguilar pulled up to the house; however, in her statement to the police, Gerber stated Lopez was in his car when Aguilar approached her and asked her to leave with him. Quintanilla testified Lopez did not stop at his car when he walked toward the truck.
Osborne further testified Lopez retrieved something from under the seat of his car, picked up his shirt, and stuck something in his waistband. Hardy testified she did not believe Lopez had a gun. Gerber and Quintanilla also testified they never saw Lopez with a gun. In her initial statement to the police, Alcantar stated she saw Lopez with a gun; however, at trial, she testified she never saw Lopez with a gun or act like he had a gun. Osborne testified he believed Alcantar changed her testimony because he got back together with his former girlfriend who he was dating when he met Alcantar, and Alcantar and his former girlfriend were best friends at that time.
After Aguilar was seated in the driver's seat of the truck, the men continued to argue as Lopez tried to convince Hardy to stay. Lopez then reached through the window and punched Aguilar. Hardy testified Lopez punched Aguilar one time which was consistent with Hardy's second statement to police; however, in her first statement to police, Hardy said Lopez punched Aguilar several times. Alcantar testified Lopez punched Aguilar multiple times with both hands, and she did not see a gun in either of his hands. Osborne testified Lopez "sucker-punched" Aguilar several times on the side of the face.
When Lopez punched Aguilar, Aguilar yelled for Osborne to shoot Lopez. Osborne testified Aguilar knew he had a gun because he had exchanged some marijuana for the gun earlier that day. Osborne further testified he saw a revolver in Lopez's waistband when Lopez stepped back from the truck and lifted his shirt. Osborne testified he shot Lopez when he began reaching for the revolver. Alcantar testified she never saw a gun and never thought Lopez was going to kill Aguilar or any of the occupants of the truck.
The shell casings recovered from the truck established Osborne shot eight rounds. The autopsy report established Lopez was shot six times, including one shot to the face, one shot to the chest, three shots in Lopez's back and the back of his arms, and one shot through the bottom of Lopez's foot. After the shooting, Lopez's body was located about halfway up the driveway.
Gerber testified she ducked behind the cars in the driveway when the shooting started. After the shooting ended Gerber testified Quintanilla ran away while she called 911. Gerber told the 911 operator that she thought Aguilar had shot Lopez. While speaking with the 911 operator, Gerber briefly went inside the house and could not positively state that Quintanilla did not return to the driveway, but she did not believe that he did.
Quintanilla testified he ran to the back of the house when he heard the gunshots. When he heard the vehicle take off, Quintanilla returned to the front, saw Lopez dead on the ground, and left. Quintanilla testified he did not see any gun by Lopez and did not take any gun with him when he left. Quintanilla further testified he left the scene because he was scared, panicked, and did not know how to handle the situation.
After the shooting, Aguilar, Osborne, Hardy, and Alcantar returned to Aguilar's parents' (Osborne's grandparents') home where Aguilar and Osborne were living. Osborne testified he did not call 911 because he had marijuana on him and was afraid of retaliation. Hardy testified neither Aguilar nor Osborne ever said they saw Lopez with a gun. The men packed bags and changed cars, intending to drive with Alcantar to Osborne's father's house in another town after dropping Hardy off at her apartment. The police stopped the car a short time later and arrested all four occupants. Photographs of the occupants were introduced into evidence, and both Hardy and Alcantar testified Aguilar did not have any visible injuries from being punched by Lopez.
Alcantar testified she and Osborne spoke by telephone while he was in jail after his arrest. An audio tape of one of the phone calls was played for the jury, and Alcantar testified Osborne never mentioned Lopez having a gun or being afraid for himself or Aguilar. Instead, Osborne blamed Aguilar for the murder.
After hearing five days of testimony, the jury convicted Osborne of murder. Osborne appeals.
SUFFICIENCY OF THE EVIDENCE
In his first two issues, Osborne contends the evidence is insufficient to support the jury's implicit rejection of his claims of self-defense and defense of a third person.
A. Applicable Law
"A person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force." TEX. PENAL CODE ANN. § 9.32(a) (West 2011). Under Section 9.31, "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. at § 9.31(a).
A person is justified in using deadly force against another to protect a third person if: (1) he would have been justified in using deadly force to protect himself against the unlawful deadly force "he reasonably believes to be threatening the third person he seeks to protect;" and (2) he "reasonably believes his intervention is immediately necessary to protect the third person." Id. at § 9.33. "A person defending on the grounds of defense of a third person stands in the shoes of the third person." Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (citing Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986). "Thus, the use of [deadly] force to protect a third person is justified in any situation in which the third person would be justified in using [deadly] force to protect himself." Id.
In considering the justifications of self-defense and defense of a third person, the jury is not required to find that a victim was actually using or attempting to use unlawful deadly force against a defendant. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). "A person has a right to defend himself against apparent danger to the same extent as if the danger were real." Id. The only requirement is that a defendant reasonably believe he must act immediately, and he can have a reasonable belief that force is immediately necessary even if the objective evidence shows the defendant was never in any real danger. See id.
B. Standard of Review
Once a defendant produces some evidence raising the issue of self-defense or defense of a third person, the State bears the burden of persuasion to show beyond a reasonable doubt that the defendant's actions were not justified. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991); Valverde v. State, 490 S.W.3d 526, 527-28 (Tex. App.—San Antonio 2016, pet. ref'd); Smith, 355 S.W.3d at 144. To meet its burden of persuasion, the State is not required to produce additional evidence. Saxton, 804 S.W.2d at 913; Valverde, 490 S.W.3d at 528; Smith, 355 S.W.3d at 144. If the jury finds the defendant guilty, it has made an implicit finding against any defensive theory raised by the defendant. Saxton, 804 S.W.2d at 914; Valverde, 490 S.W.3d at 528; Smith, 355 S.W.3d at 144.
When a defendant challenges the legal sufficiency of the evidence to support the jury's implicit rejection of his self-defense or defense of a third party claim, "'we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine 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 self-defense issue beyond a reasonable doubt.'" Valverde, 490 S.W.3d at 528 (quoting Saxton, 804 S.W.2d at 914). In conducting a legal sufficiency review, we defer to the jury's assessment of the credibility of the witnesses and the weight to be given to their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Valverde, 490 S.W.3d at 528.
C. Discussion
In order for the jury to find Osborne was justified in using deadly force, the jury had to find Osborne had a "reasonable belief" that deadly force was immediately necessary to protect himself or the other occupants of the truck against Lopez's use or attempted use of unlawful deadly force. A "reasonable belief" is "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." TEX. PENAL CODE ANN. § 1.07(a)(42) (West Supp. 2017).
In his brief, Osborne focuses extensively on his own testimony. Osborne's testimony, however, was inconsistent with the testimony of the other witnesses. First, Osborne testified he saw a gun in Lopez's waistband; however, none of the other witnesses saw a gun, and no gun was found by Lopez's body in the driveway. Second, Osborne testified Hardy was hysterical when she ran to Aguilar's truck and referred to being raped; however, Hardy denied she was hysterical and testified she engaged in consensual sex. Accordingly, the jury could have disbelieved Osborne's testimony.
The remaining evidence showed only that Lopez and Aguilar exchanged words and Lopez followed Aguilar to the truck and began punching him through the window. Since no other witness testified that Lopez had a gun, an ordinary and prudent person would believe Osborne's use of gun to shoot Lopez was not immediately necessary, especially since Aguilar was in a position to drive away. Furthermore, Osborne did not simply flee the scene after the shooting but packed and prepared to leave town. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (noting that a "factfinder may draw an inference of guilt from the circumstance of flight"); Valverde, 490 S.W.3d at 529 (noting jury was entitled to consider defendant's actions in leaving the scene in evaluating self-defense claim). Finally, in subsequent recorded telephone calls, Osborne did not refer to needing to protect himself or the others against Lopez, but stated he shot Lopez because Aguilar told him to do so.
Having reviewed all of the evidence in the light most favorable to the jury, we hold the evidence supported the jury's implicit rejection of Osborne's claims of self-defense and defense of a third person. Osborne's first two issues are overruled.
BRADY VIOLATION
In his third issue, Osborne contends the trial court erred in denying his motion for new trial because the State failed to disclose the fact that Alcantar lied in her initial interview with the police. In her initial interview, Alcantar stated Lopez had a gun thirteen times; however, she later informed the prosecutor that she lied in her statement. Because the prosecutor failed to timely disclose this information to defense counsel, Osborne asserts he was entitled to a new trial.
A. Standard of Review
A trial court's denial of a motion for new trial is reviewed under an abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). "A trial judge abuses his discretion in denying a motion for new trial when no reasonable view of the record could support his ruling." Id.
B. Brady Violation and Osborne's Motions
On Tuesday, January 31, 2017, before the second day of trial commenced, which was after the jury had been selected but before the jury was sworn, the prosecutor informed defense counsel Alcantar lied in her statement. Defense counsel did not raise any concern regarding the untimely disclosure with the trial court at that time.
In his testimony at the hearing on Osborne's motion for new trial, defense counsel testified the prosecutor told him, "You know she lied in her statement," without clarifying the "she" was Alcantar. In other parts of the record where the issue was discussed, however, the record reflects that the prosecutor disclosed that Alcantar lied in her statement.
During opening argument, the prosecutor stated Alcantar would testify that she did not tell the truth when she gave her statement to the police. Defense counsel did not address any concern regarding the untimely disclosure with the trial court at that time or ask for a continuance. Instead, defense counsel responded to the information during his opening argument, commenting "904 days have passed since this offense occurred." Defense counsel then described the manner in which Alcantar was questioned first by a male detective, then by a female detective, and then further questioned after her mother was allowed to enter the interview room. Defense counsel told the jury Alcantar stated she saw Lopez with a gun on the night she was questioned but "904 days later . . .she's going to confess that she lied." Defense counsel further told the jury he believed Alcantar changed her story because she was "afraid of retaliation from certain folks, that if she takes the stand and says [Osborne] acted in self-defense, then she's afraid that she'll be retaliated against." Defense counsel did not address any concerns with the trial court after the opening arguments.
The jury heard testimony from three witnesses the day of opening arguments, and the following day, Wednesday, February 1, 2017, the jury heard testimony from four additional witnesses before Alcantar was called as the final witness of the day. About thirty minutes into Alcantar's testimony, the State began questioning her about the lies she made in her statement to the police. Defense counsel requested a bench conference and informed the trial judge that Alcantar was admitting to the crime of making a false statement to a police officer and suggested that she needed a lawyer. After the jury was excused from the courtroom, defense counsel informed the trial judge that he found out a "tidbit" about Alcantar changing her statement during opening argument but did not learn the extent of it until Alcantar began testifying in court. Defense counsel asserted, "I think that's Brady, by the way. And I had a Brady motion that was on file." In response to the State's argument that the information about Alcantar lying was not material, the trial judge stated he believed it was material, and the trial judge assured defense counsel he would be permitted to cross-examine Alcantar about whether she committed a crime when she lied to the police. After further discussion, the trial judge admonished Alcantar about telling the truth as she testified in court and about the punishment for aggravated perjury. The trial judge also offered Alcantar the opportunity to consult with a lawyer about her testimony. Alcantar stated she wished to proceed with testifying without consulting a lawyer. The trial judge then proposed to bring the jury back and continue the trial and asked if there were any objections or concerns about his proposal. Both defense counsel and the prosecutor said they had none, and the State completed its direct examination of Alcantar before trial was recessed for the day.
The following day, Thursday, February 2, 2017, defense counsel did not raise any concerns with the trial court before proceeding to cross-examine Alcantar. At a break in the trial during defense counsel's cross-examination of Alcantar, defense counsel requested a mistrial based on the Brady violation. The trial court instructed the attorneys that the Brady issue would be addressed later in a separate hearing. At the conclusion of Alcantar's testimony, defense counsel renewed his request for a mistrial, and the trial court again stated the request would be addressed at a later hearing. One more witness was called out-of-order who briefly testified regarding the processing of Aguilar's truck for evidence. The testimony concluded around 12:20 p.m., and the trial court announced that trial would be recessed until the following Monday. At approximately 2:00 p.m., the trial court began to hear defense counsel's request for a mistrial. After an hour, the trial court recessed the hearing and announced the hearing would be resumed at 1:30 p.m. the following day.
On Friday, February 3, 2017, the trial court resumed the hearing on defense counsel's request for a mistrial based on the late disclosure of Brady material. Similar to the arguments made the previous day, Defense counsel argued he would have conducted voir dire differently if the material had been disclosed before trial. Defense counsel further agued a continuance would not cure the harm because he could not redo voir dire or his opening statement. The State responded that the remedy for the tardy disclosure was a continuance. At the conclusion of the hearing, the trial court ruled the remedy for the late Brady disclosure during trial was a continuance, if requested, and denied the motion for mistrial. The trial court also announced during the hearing that defense counsel would be permitted to recall Alcantar as a witness when trial resumed the following Monday if he chose to do so. When trial resumed the following Monday, the jury heard two additional days of testimony, but defense counsel did not choose to recall Alcantar as a witness.
After the jury found Osborne guilty, he filed a motion for new trial again asserting he was entitled to a new trial based on the Brady violation. Defense counsel testified at the hearing on the motion for new trial reiterating the manner in which his voir dire and opening statement were prejudiced by the untimely disclosure. The trial court denied the motion for new trial referring to a continuance being the proper remedy for the violation.
C. Analysis
This court has previously noted that "[d]isclosure of exculpatory evidence during trial affords the accused the opportunity to request a continuance and this procedure satisfies the due process requirements of Brady," and "'[a] defendant who fails to avail himself of this less drastic remedy waives any error resulting from the Brady violation.'" Aranda v. State, No. 04-14-00787-CR, 2016 WL 1043102, at *11 (Tex. App.—San Antonio Mar. 16, 2016, pet. ref'd) (not designated for publication) (quoting Cohen v. State, 966 S.W.2d 756, 763 (Tex. App.—Beaumont 1998, pet. ref'd)); see also In re E.O.E., 508 S.W.3d 613, 625 (Tex. App.—El Paso 2016, no pet.) (noting failure to request continuance when evidence is disclosed during trial waives any Brady violation); Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.—Texarkana 2002, pet. ref'd) (noting failure to request continuance when evidence is disclosed during trial waives any Brady violation); Vaughn v. State, No. 05-97-01962-CR, 2000 WL 688249, at *8 (Tex. App.—Dallas May 23, 2000, pet. ref'd) (not designated for publication) (noting disclosure at trial gives the accused an opportunity to request a continuance which satisfies the due process requirements of Brady); Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—San Antonio 1999, no pet.) (noting failure to request continuance when evidence is disclosed during trial waives any Brady violation); Yates v. State, 941 S.W.2d 357, 364 (Tex. App.—Waco 1997, pet. ref'd) (noting opportunity to request continuance after disclosure at trial satisfies due process requirements of Brady and failure to request continuance waives Brady violation). In this case, Osborne did not request a continuance in response to the untimely disclosure; therefore, we must conclude any error resulting from the untimely disclosure of the evidence during trial was waived. See Aranda, 2016 WL 1043102, at *11.
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice DO NOT PUBLISH