Hebert v. State, 2008 Tex. App. LEXIS 1489 (TX Ct. App. 2008)

ANTHONY MARK HEBERT, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-05-01319-CR

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2008 Tex. App. LEXIS 1489

February 29, 2008, Opinion Issued

JUDGES:
Before Justices Wright, Bridges, and Mazzant. Opinion By Justice Bridges.

OPINION BY: DAVID L. BRIDGES

Anthony Mark Hebert appeals his murder conviction. A jury convicted appellant and sentenced him to life confinement and a $ 10,000 fine. In two issues, appellant argues the trial court erred in failing to give a self-defense instruction and denying appellant’s motion for mistrial. We affirm the trial court’s judgment.

On the night of September 29, 2003, Richard Hernandez and Jose Ramos left the DMX nightclub at approximately 2:15 or 2:30 a.m. Ramos was driving his pickup truck, and Hernandez was a passenger when the pickup was struck from behind and Ramos came to a stop. The vehicle behind them struck Ramos’ truck “not too hard, but just enough to make a dent.” Hernandez thought the truck had hit a “bump or something,” but Ramos knew immediately that he had been hit from behind. Ramos was “disappointed” his truck had been hit, but he was not “cussing or angry.” Hernandez and Ramos got out of the truck, and Ramos asked the driver of the minivan that had struck them, “Can’t you watch what you’re doing?” The driver of the minivan said he would pay for the damage, and Hernandez told him “You can’t afford the candy paint.” The driver of the minivan opened his door and put one leg out and said again that he would pay for the damage.

Hernandez heard one of the minivan’s doors on the passenger side open and close, and another man approached and pulled out a gun. The man fired three shots, and Hernandez felt a stinging pain in his left arm and saw Ramos “bending down.” The man immediately ran to the passenger side of Ramos’ truck, and Hernandez “knew it was a carjacking.” Ramos ran to the driver’s side of his truck and Hernandez ran to the passenger side. As Hernandez reached the passenger side of the truck, he saw the gunman “pretty much in the driver’s seat already” and saw the gunman fire three more shots at Ramos at close range. The gunman shut the driver’s side door, and Hernandez jumped in the passenger side and hit the gunman three times in the face. At the same time, the gunman was putting the truck in drive and the driver of the minivan was driving alongside. Although it is unclear why the pickup and the minivan collided, Hernandez testified the pickup hit the minivan and a guard rail and came to a stop. The gunman opened the door and, as he was jumping out of the truck, fired three or four shots toward Hernandez. Hernandez felt a bullet graze his nose, and he “dropped down to the seats” to keep from getting hit. Hernandez heard the gunman fire three more shots and peeked out to see the gunman running toward the minivan. The gunman got in the minivan, which drove away.

Ramos came to the driver’s side of the truck and told Hernandez “he got hit.” As Hernandez was trying to get out of the truck, he twisted his ankle and fell back. Once Hernandez was “laid out,” he could not move his arm, and it was difficult for him to even sit up. Hernandez called his girlfriend on his cell phone “to tell her where I was at so she could call the ambulance.” Some other people showed up at the scene and called police. At one point, Hernandez asked what happened to Ramos, and he was told Ramos had already left in an ambulance. Hernandez was taken to Parkland hospital where he was treated and told there was no point in operating on his arm because the bullet that struck him was a hollow point, and surgery to remove the bullet would only “mess up more” of his muscle tissue. Hernandez asked about Ramos, but the people at the hospital were asking what happened and “didn’t want to tell [Hernandez] what was going on with [Ramos].” Ramos died from his injuries.

Dallas police detective Julius Rucker testified he responded to the crime scene and saw Ramos’ truck. Referring to photographs of the crime scene, Rucker identified damage to the truck at the rear and driver’s side bumper, blood and broken glass by the driver’s door, a bullet hole in the front passenger side, and two pieces of molding on the ground from another vehicle. Ramos’ truck had red or maroon colored paint on the damaged area of the front driver’s side bumper. Rucker also discovered broken dark tinted auto glass on the ground behind Ramos’ truck, though Ramos’ truck did not have dark tinted glass.

While he was investigating the crime scene, Rucker received a call that a stolen van had been recovered. Rucker went to look at the van and found it had dark tinted window glass that had been broken out and missing molding on the rear passenger side. Rucker later determined the molding recovered from the crime scene fit the areas where molding was missing from the van, and the red maroon paint on Ramos bumper matched the van’s paint. The van’s engine was still running, and it had been burned on the roof area as if someone had tried to set the van on fire.

Dallas police detective Kenneth Blank testified he examined Ramos’ truck for evidence and found eleven latent fingerprints. Two of the latent prints recovered from the driver’s side of the truck were identified to the left middle and left ring fingers of appellant. Dallas police detective Kenneth Penrod interviewed Hernandez in November 2003. Penrod testified that the way Hernandez “talked about the shots occurring was consistent with the forensic evidence we got from the lab.” Hernandez’ descriptions of the positions of the pickup and the minivan at the beginning of the incident and later during the offense were also consistent with the damage on the minivan and the damage on the pickup. Penrod testified the underlying offense was a carjacking committed in a “bump and rob” method. In that method, “someone bumps into the back end of someone else and makes them think they’ve been involved in an accident.” The collision is not usually serious but “just enough to get them to pull over.” Once the victim gets out of the vehicle, he or she is robbed or the vehicle is taken. Penrod testified he received a Crime Stoppers tip in October 2003 that “a person by the name of Anthony Hebert had bragged about doing the shooting.”

On November 11, 2003, Penrod met with appellant and, after advising appellant of his Miranda rights, obtained a written statement from appellant. Appellant’s statement described how he and a friend stole a red Dodge Caravan and went driving around. Appellant’s friend was driving, and the two went to the DMX club where they saw a purple pickup truck. Appellant’s friend recognized that the wheels and front end of the truck were his. The two parked and waited, but police came and “caught a guy stealing a red Suburban,” so they left. Later, appellant and his friend came back to the club, but the truck was gone and they left. They saw the truck again driving down the street, and “that’s when we bumped into them to get them to stop.”

According to appellant, the truck stopped and “pulled around and pretty much blocked the road.” The “big guy on the passenger side got out first,” and “the little dude who was driving got out right after him.” The “little dude grabbed something from the seat that looked like a bar or a socket wrench and put it in his waist and pulled his shirt over it.” The “big dude was getting loud,” and “he wanted to fight about it.” Appellant’s friend “told the dudes that he had money to fix it,” but “the big dude started yelling . . . you think candy paint is cheap?” Appellant jumped out and told the “big dude” his friend “said he was going to pay you.” The “big dude charged around the van,” and appellant’s friend “got in the van somehow and tried to run over the big dude.” Appellant “took off running to the passenger side of the truck” because he thought his friend was leaving him. Appellant got into the truck’s driver’s seat through the passenger door and put the truck into first gear, but the truck was not moving. The “big dude” who had jumped in the truck punched appellant once in the face. The truck suddenly “kicked in gear and we hit the sliding door on the van that had pulled in front of the truck.” Appellant was “trying to take the truck to get away from those dudes.”

Appellant “had the gun in [his] right hand,” and the “little dude came up on the driver’s side and started trying to pull [appellant] out.” The “big dude” grabbed appellant’s “nuts.” Appellant’s friend “shot his shotgun through the van’s window towards the passenger front windshield.” Appellant “turned around and shot the big dude as the little dude was pulling me out.” The “little dude” finally pulled appellant out of the truck and was trying to take appellant’s gun. Appellant had his gun in the “little dude’s” stomach, but the “little dude” forced the gun “down his left leg,” and appellant fired the gun. The “little dude” got off appellant but still had his hand on appellant’s gun, so appellant “started shooting him some more,” and he finally let go of the gun. Appellant ran to the minivan, got in, and left. Appellant admitted later trying to burn the van and having one of his friends throw the gun in a river. After hearing all the evidence, a jury convicted appellant of murder. This appeal followed.

In his first issue, appellant argues the trial court erred in denying appellant’s request for a self-defense instruction. A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). On the other hand, if the evidence, viewed in the light most favorable to the defendant, does not establish self-defense, the defendant is not entitled to an instruction on the issue. Id. Self-defense is a justification for one’s actions and necessarily requires an admission of the conduct at issue. Kimbrough v. State, 959 S.W.2d 634, 640 (Tex. App.-Houston [1st Dist.] 1995, pet. ref’d).

The use of force against another is not justified if the defendant provoked the other’s use or attempted use of unlawful force unless (a) the defendant abandons the encounter, or clearly communicates to the other his intention to do so reasonably believing he cannot safely abandon the encounter and (b) the other nevertheless continues or attempts to use unlawful force against the defendant. TEX. PEN. CODE ANN. ß 9.31(b)(4) (Vernon Supp. 2007). Where there is evidence of provocation by a defendant and no evidence the defendant attempted to retreat or discontinue his use of force, the trial court does not err in refusing to submit a self-defense instruction. See Coble v. State, 871 S.W.2d 192, 202 (Tex. Crim. App. 1993).

Here, appellant’s own statement shows that he and his friend intentionally ran into Ramos’ truck in order to get Ramos to stop. Once Ramos and Hernandez got out of the truck, appellant’s friend tried to run over Hernandez with the minivan. Rather than abandon the encounter, appellant ran to Ramos’ truck, climbed into the driver’s seat, and attempted to steal the truck. Appellant had a gun in his hand inside the truck. Appellant’s friend fired a shotgun at the truck, and appellant fired his gun at Hernandez and then at Ramos. Neither Ramos nor Hernandez had a gun. Appellant did not attempt to communicate his intent to abandon the encounter or leave the scene other than by trying to steal Ramos’ truck. Instead, he immediately began shooting when he was unable to get the truck to move. We have reviewed the record and conclude the evidence, viewed in the light most favorable to appellant, does not establish self-defense. See Ferrel, 55 S.W.3d at 591. We overrule appellant’s first issue.

In his second issue, appellant argues the trial court erred in denying his motion for a mistrial. Specifically, he argues a mistrial was warranted because Penrod testified Crime Stoppers received a tip that “a person by the name of Anthony Hebert had bragged about doing the shooting.” Appellant argues this statement poisoned the minds of the jurors because it implied appellant could not have acted in self defense if he went around bragging about the shooting afterward.

A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Mistrial is appropriate for only “highly prejudicial and incurable errors.” Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). It may be used to end trial proceedings when faced with error so prejudicial that expenditure of further time and expense would be wasteful and futile. Simpson, 119 S.W.3d at 272. The trial court is required to grant a motion for a mistrial only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Simpson, 119 S.W.3d at 272; Wood, 18 S.W.3d at 648.

Here, appellant’s counsel objected to Penrod’s statement about appellant bragging about the shooting, and the trial court instructed the jury to disregard Penrod’s statement. We have already concluded appellant’s own statement did not raise the issue of whether he acted in self defense. Instead, his statement showed he and his friend intentionally stopped Ramos’ truck and appellant continued to be the aggressor until Hernandez and Ramos had both been shot. Thus, appellant’s statement precluded a finding that appellant acted in self defense, and Penrod’s testimony that appellant was bragging was not a basis for the jury to find appellant did not act in self defense. Under these circumstances, we cannot conclude the reference to bragging was so prejudicial that expenditure of further time and expense would be wasteful and futile. See Simpson, 119 S.W.3d at 272. Further, we conclude the trial court’s instruction to disregard cured any error, and no mistrial was warranted. See Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005). We overrule appellant’s second issue.

We affirm the trial court’s judgment.
DAVID L. BRIDGES
JUSTICE