Velasquez v. State

Brian Lee Velasquez, Appellant v. The State of Texas, Appellee

NO. 03-19-00499-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

July 9, 2021

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY

NO. CR2016-722, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING

MEMORANDUM OPINION

Brian Lee Velasquez was convicted by a jury of the second-degree felony offense of aggravated assault with a deadly weapon. See Tex. Penal Code § 22.02(a)(2). Based on Velasquez's pleas, the trial court found the enhancement paragraphs alleging prior offenses true and assessed punishment based on the habitual offender range. See id. § 12.42(d). The trial court assessed punishment at 55 years in prison. Velasquez raises three issues on appeal, challenging the trial court's admission of testimony regarding prior bad acts, refusal to provide a lesser-included offense instruction, and application of what he asserts was an incorrect self-defense instruction. We will affirm the trial court's judgment.

BACKGROUND

On December 14, 2014, Velasquez undisputedly used a knife to slice a finger and stab the abdomen of Derrick McKinnis. The main disputed fact issue at trial was whether Velasquez's assault was justified self-defense against McKinnis's allegedly unlawful use of force, or whether McKinnis's use of force against Velasquez was the justified and lawful defense protecting Maranda Martinez¹ against Velasquez's alleged assault on her.

On December 13, 2014, McKinnis and Martinez—then in the third year of dating—went to visit Martinez's aunt, Monica Avila, and Velasquez, Avila's boyfriend, at their apartment in New Braunfels. McKinnis and Martinez intended to stay overnight. As the evening wore on, Avila went to bed because she needed to rise early for her job, and Martinez was also ready to sleep. McKinnis and Velasquez, however, were drinking together and were not ready to end the evening. Martinez urged McKinnis to come to bed, McKinnis resisted, and Velasquez told Martinez she should not tell McKinnis what to do.

After arguing with Velasquez and McKinnis, Martinez decided to go home, so she went to the bedroom to tell her aunt she was leaving and would return in the morning to get McKinnis. Velasquez did not want her to wake Avila, who was a heavy sleeper and had difficulty getting back to sleep. Velasquez followed Martinez into the bedroom and called her unpleasant names. In response, Martinez punched him in the face. Velasquez then swung at Martinez; she blocked the blow with her arm, but the force knocked her down. McKinnis heard a loud thump from the bedroom, so he went to investigate. When he got to the bedroom door, McKinnis saw Martinez on the floor with her hands covering her face and with Velasquez "looming over her." McKinnis testified that Velasquez's hands were curled into fists, and so he started hitting Velasquez to defend her. Velasquez denied his hands were curled into fists, but agreed that "it would look that way, the way [McKinnis] interpreted it"—that Velasquez had just struck Martinez and that he might continue to do so.

Velasquez and McKinnis tussled and fell onto the bed, with McKinnis continuing to hit him. They rolled off the other side of the bed and McKinnis was behind and on top of Velasquez. McKinnis put his arm around Velasquez's neck and began to squeeze. McKinnis testified that he was telling Velasquez to calm down, but Velasquez testified that he did not hear McKinnis say those words and that instead he was telling McKinnis to stop. McKinnis held Velasquez in this position for fifteen to twenty seconds. He testified that he was not squeezing hard enough to stop Velasquez's breathing, but was trying to knock him out. Velasquez testified that he felt like he was close to not being able to breathe and that he feared McKinnis could crush his windpipe.

At some point, either as they were rolling or once they reached the floor, Velasquez pulled out and opened his knife. He began swinging the knife at McKinnis and cut McKinnis's nose and finger, the latter deeply enough to sever a tendon, causing McKinnis to release Velasquez and back away. At some point, Velasquez also cut Avila, who was trying to restrain him. McKinnis testified that he stood with his hands up telling Velasquez, "I'm here to help you," and did not threaten him. Velasquez testified that McKinnis said nothing and started moving toward him. McKinnis said Velasquez moved toward him² and stabbed him in the abdomen, nicking his liver and opening a 1.5-inch gap that allowed his intestine to protrude.

McKinnis and Martinez fled the apartment, then stopped in the parking area to call for help. Velasquez and Avila also left the apartment. Martinez asked Avila for the address to tell 911, but Avila and Velasquez got into a car and left without providing the information. Neighbors provided the information but had already called 911 to report the disturbance.

Avila dropped Velasquez off a couple of blocks away, and he walked to a nearby house where Avila's friend, Sandra Mendoza, lived. Mendoza testified that Velasquez was shirtless and that he said police were after him because he had stabbed McKinnis. He told Mendoza that Martinez "went at him," then McKinnis "went at him," so he stabbed McKinnis maybe three times. She wanted to go to the apartment to check on Avila, and Velasquez accompanied her even though she told him not to come. They pretended they were a couple, holding hands as they approached the police on scene.

Velasquez told police he had been in Austin all day and denied being at Avila's apartment. He told them his sister had just dropped him off at Mendoza's house. Despite the dried blood on his jawline and hands that did not correspond to any injuries on his body, he denied to police that he had been in an altercation. Velasquez testified that his nose bled, but that his injuries were not serious. He testified that he did not discard the knife and that police should have found it in the apartment, but he admitted that he got rid of the t-shirt somewhere and that he lied to police when he told them that he did not carry a knife.

DISCUSSION

Velasquez raises three issues on appeal. He contends that the trial court erred by allowing testimony about prior bad acts, by failing to instruct the jury on the lesser-included offense of deadly conduct, and by applying the wrong self-defense instruction.

Testimony about prior bad acts.

When directly examining McKinnis, the prosecutor approached the bench to ask permission to inquire about matters covered by a motion in limine—namely, Velasquez's propensity to carry a knife or his prior convictions. The trial court ruled that Velasquez's claimof and questions about self-defense had opened the door, allowing the State to ask, "Had the defendant made any statements to you about using knives in the context of a fistfight?" Velasquez objected that the question violated Texas Rules of Evidence 404(b) and 403.³ The court overruled the objection.

We review trial-court rulings on admissibility of evidence for an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We must uphold the trial court's admission of evidence unless it is outside the zone of reasonable disagreement. Id.

Texas Rule of Evidence 404(b).

Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that the person acted in conformity with that character, but may be admitted to prove motive, opportunity, intent, preparation, plan, absence of mistake, or lack of accident. Tex. R. Evid. 404(b). Though not evidence, defensive theories presented in a defendant's opening statement can open the door for admission of evidence of an extraneous offense as rebuttal evidence during the State's case-in-chief. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). "When the accused claims self-defense or accident, the State, in order to show the accused's intent, may show other violent acts where the defendant was an aggressor." Lemmons v. State, 75 S.W.3d 513, 523 (Tex. App.—San Antonio 2002, pet. ref'd).

Velasquez raised self-defense in his opening statement, opening the door to admission of evidence of extraneous offenses. McKinnis testified that before the night of this incident, Velasquez had told him "he couldn't fight, so he would always carry a knife with him."McKinnis testified that Velasquez also said, in a somewhat bragging manner, that he had stabbed someone in a fight. McKinnis testified that these prior statements made him concerned about the knife that he knew Velasquez carried.

Velasquez contends that this evidence should be excluded because it was offered to show that he used the knife because of character conformity, not in response to being choked and punched by McKinnis. The State argues that it adduced the testimony to show the reasonableness—and thus the lawfulness—of McKinnis's perception that he needed to use force to defend Martinez. Though McKinnis did not see Velasquez make contact with Martinez, he knew they had been arguing, heard a loud boom from the bedroom where they both were, and entered the room to see Velasquez leaning over Martinez, who was on the ground and had her hands up in a defensive position; regardless of whether Velasquez had his hands in fists, even Velasquez agreed that it would be reasonable for McKinnis to assume that Velasquez "had probably just struck Maranda and there was a possibility that you might continue to do that because [he was] standing bent over towards her while she's on the ground." The lawfulness of the force used to defend a third party is relevant to Velasquez's theory that he was entitled to defend himself from an unlawful use of force. See Tex. Penal Code §§ 9.31(a) (self-defense), 9.33 (defense of third person).

The trial court did not abuse its discretion by allowing the State to rebut the self-defense claim by showing evidence of other violent acts where the defendant was an aggressor. Lemmons, 75 S.W.3d at 523. Further, ...