Hocko v. State

590 S.W.3d 680

Robert HOCKO, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00959-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed November 26, 2019

Discretionary Review Refused March 11, 2020

Meagan Hassan, Justice

A jury convicted Appellant Robert Hocko of criminally negligent homicide and sentenced him to 15 years' confinement. In five issues, Appellant challenges the trial court's judgment and asserts (1) the trial court erred by denying a hearing on his motion for new trial; (2) the trial court erred by denying his motion for new trial; (3) the trial court's jury charge incorrectly instructed the jury on his self-defense claim; (4) the jury's deadly-weapon finding is not supported by legally sufficient evidence; and (5) his conviction for criminally negligent homicide is not supported by legally sufficient evidence. For the reasons below, we affirm.

BACKGROUND

Appellant was arrested and charged with murder in connection with the death of Complainant Daniel Perez following an altercation at The Spot Club in northeast Houston. Following a three-day jury trial in November 2016, the jury found Appellant guilty of criminally negligent homicide and found that Appellant's hand was a deadly weapon. The trial court sentenced Appellant to 15 years' imprisonment.

I. Guilt-Innocence Phase

Theresa Walker, a manager and bartender at The Spot, was the first witness to testify at Appellant's trial. Walker testified that, during the afternoon of October 18, 2015, Heidi McKay and Angela Bowyer were holding a bikini bike wash at The Spot to pay their bills. Appellant, McKay's ex-husband, accompanied McKay and Bowyer to The Spot.

Walker said Complainant arrived at The Spot at approximately 2:00 p.m. to get his motorcycle washed. Walker said she was "good friends" with Complainant and would regularly see him at The Spot and at neighborhood barbeques.

Walker testified that the incident at bar occurred at approximately 6:00 p.m. Walker said she was inside the bar when she looked out the window and saw Appellant on the patio; Appellant was "enraged" and "pulling off his shirt and lunging to go fight someone." According to Walker, Appellant had gotten into an argument with Robert Augustine, another patron at The Spot. Walker walked outside the bar onto the patio and told Appellant to leave the property. Walker said Complainant was standing near Appellant and Augustine, telling Appellant, "We're all brothers here. Nobody wants to fight." According to Walker, Appellant punched Complainant twice and Complainant fell to the ground after the second hit.

Walker testified Complainant "took a little bit" to get up and was "very confused and very disoriented." Walker said Complainant had cuts on his face, had swollen eyes, and was very dazed. While Complainant was getting his bearings, Appellant was trying to get inside the bar — Walker testified that she and McKay were trying to prevent him from entering. Walker recalled that Appellant struck McKay with his hand several times.

Walker testified Complainant was coming to McKay's aid and again told Appellant, "Nobody wants to fight you." Complainant "trie[d] to hug" Appellant and Appellant again hit Complainant in the face. Walker said Complainant fell to the ground unconscious and was bleeding from his ears. She testified that while Complainant was on the ground, Appellant "[c]ame back and hit him five more times" in the face and kicked him in the head. Walker said Complainant walked away from The Spot towards the store across the street. Walker called 911 and an ambulance arrived at the scene approximately five minutes later. Complainant died from his injuries.

The Spot had an outdoor security camera that captured most of the altercation; footage of the altercation was admitted into evidence during Walker's testimony. The footage shows the following sequence of events:

• Appellant is sitting in a patio chair near Augustine. Appellant stands and joins Augustine's conversation. Complainant is standing nearby.

• Appellant and Augustine walk out of the camera's frame, followed by Complainant. Appellant and Augustine walk back into the frame and stand by the patio ledge. Complainant walks into the frame and pats Appellant on the back several times.

• Augustine looks toward Appellant while assuming a fighting stance. Complainant stands in the middle of the two men. Walker walks outside the bar and begins gesturing towards the men. Appellant exits the frame.

• A now-shirtless Appellant enters the frame rushing at Augustine. Complainant and McKay try to hold Appellant back. Complainant wraps Appellant in a bear hug and moves him to the opposite side of the patio. Appellant struggles to get away from Complainant and strikes him in the face.

• Appellant walks out of the frame followed by Complainant and McKay. An ashtray is thrown at Augustine from Appellant's direction. Appellant and Augustine again move towards each other in a fighting stance. Complainant's legs are visible by a parked truck as he tries to stand up.

• Augustine walks inside the bar. Appellant tries to enter the bar but Complainant and McKay pull him away from the bar's entrance. Complainant wraps his arm around Appellant's neck and shoulders. Appellant strikes Complainant once in the stomach and once in the face, and Complainant falls to the ground. Appellant walks out of the frame.

• A low wall separates Complainant's body from the security camera. Several moments pass, then a quick and forceful motion is seen at the edge of the frame near where Complainant's body fell.

• At that exact moment, at least five people were in the frame. One man in orange (who had been standing safely behind a low wall) immediately takes a step away from the scene, turns and walks away, throws his hand up in the air, and begins to yell. He then turns back towards the scene, continues to yell, and aggressively shakes his hands in the direction where Complainant fell and Appellant was last seen (which was also where the forceful movement was seen).

• Immediately after the man in orange began yelling, another man in pink, Saldino Munoz, extended his arm away from his body over the general area where Complainant was last seen; he then kneels down.

• While facing the parking lot, Walker and Bowyer are yelling and gesticulating wildly. Walker kneels down near where Complainant fell then stands up and walks into the bar with McKay and Bowyer. Bowyer walks out of the bar carrying what appears to be towels and Walker walks out while talking on the phone.

• The following moments of the video simultaneously depicted onlookers' interest, disgust, and panic.

As relevant to our analysis of Appellant's issues on appeal, we briefly discuss the testimony of eight other witnesses.

Robert Augustine . On October 18, 2015, Augustine said he was on The Spot's patio talking to two other people about a cut on his finger. Augustine said Appellant walked up to him, made a disparaging remark, and slapped his hand. Augustine said he and Appellant began arguing and Appellant threw two ashtrays at him. Augustine said Complainant tried to prevent the men from fighting and told Appellant, "Hey, man, no fighting, no fighting." Augustine saw Appellant hit Complainant one or two times. Describing Complainant's injuries, Augustine said his head was "pretty bad[ly] beaten" and his lips, his right jaw, and the side of his head were swollen.

Saldino Munoz . Munoz was having a drink at The Spot when the altercation occurred. Munoz said people were arguing when Appellant took off his shirt and became aggressive. Munoz testified that Appellant was trying to fight Augustine when Complainant intervened. Munoz said Complainant did not become aggressive with or yell at Appellant during the altercation — Complainant "just got in between, you know, trying to calm things down." Munoz testified that Appellant hit Complainant in the face several times. Munoz testified that Complainant fell to the ground twice and did not stand up after the second fall. After Complainant's second fall, Munoz said Appellant approached him and "pounded him three times while he was out cold."

Heidi McKay . McKay testified that she was washing a vehicle when she heard people arguing on The Spot's patio. McKay said Appellant and Augustine were "antagonizing each other trying to fight each other."

McKay said she got between Appellant and Augustine and tried to stop Appellant from fighting. Complainant tried to assist in preventing the fight. McKay saw Complainant fall; when Complainant got up, she saw he was bleeding from his face. Augustine entered the bar and Appellant tried to follow him. McKay said she and Complainant were trying to prevent Appellant from entering the bar when she saw Complainant fall again. McKay did not see Appellant punch Complainant. McKay believed that is what caused Complainant to fall, and testified Appellant was "responding and defending himself."

Angela Bowyer . Describing the incident, Bowyer said Appellant was trying to get in a fight with Augustine while Complainant was trying to "defuse the situation" and telling Appellant to "calm down." Bowyer said after Appellant punched Complainant, Complainant fell face-down on the ground and "busted his nose and ... was bleeding pretty bad." Bowyer recalled that Appellant was walking to the bar when Complainant again intervened — Bowyer said Appellant hit Complainant and Complainant fell "immediately on his back." After Complainant was on the ground, Bowyer testified Appellant hit Complainant several more times in the face and told him, "sorry man, look — see what you made me do."

Officer Ryan Naughton . Officer Naughton arrived at the scene and saw Complainant laying on the ground, unconscious and not breathing. Officer Naughton said he saw "a large amount of blood on the concrete." Officer Naughton said he did not see any weapons at the scene and did not receive any reports regarding weapons at the scene.

Officer Nicholas Duval . After the incident,...