Appeal from the 187th District Court of Bexar County Trial Court No. 91-CR-5873 and 91-CR-5874 Honorable Raymond Angelini, Judge Presiding
Sitting:Catherine Stone, Justice, Paul W. Green, Justice, Sarah B. Duncan, Justice
Delivered and Filed:April 2, 1997
This is Ray Ojeda's second appeal from convictions arising out of a multiple shooting. Ojeda appeals from a conviction of voluntary manslaughter for the death of Tomas Cantu and a conviction of murder for the death of Marcelino Solis. Ojeda urges one point of error for each conviction. With respect to his voluntary manslaughter conviction, Ojeda complains that the State failed to negate the immediate necessity element of self-defense. With respect to his murder conviction, Ojeda complains that the State failed to negate the issue of sudden passion. For the following reasons, we affirm the judgement of the trial court.
Factual and Procedural Background
Ojeda's convictions stem from a multiple shooting which occurred in the parking lot of a bar. At or near closing time, Ojeda left the bar with his friend, Raymond Espinoza, and got into his truck. Upon backing up his truck, Ojeda hit Benito Juarez's vehicle. An altercation ensued which resulted in the shooting deaths of Benito Juarez, Tomas Cantu, and Marcelino Solis.
What led to the shooting was disputed. Ojeda testified that he stopped to examine the damage and Juarez approached him and yelled at him for hitting his vehicle. Ojeda offered to pay for any damage and returned to his truck. According to Ojeda, Juarez followed him to his truck, pounded on the windshield, opened his door, and pulled him out of the truck. Ojeda testified that Juarez struck him in the face and then a number of people joined Juarez in hitting and kicking him. He could not, however, identify any individual other than Juarez. Ojeda stated he feared for his life and worried that a blow to his head might kill him since he was predisposed to head injury as a result of a childhood injury. During the group confrontation described by Ojeda, he was able to brush off his attackers, reach into his truck, and retrieve a gun. Ojeda testified that Juarez grabbed the gun and shots were fired. Ojeda later explained that he sporadically fired shots to defend himself against his attackers. Espinoza, Ojeda's companion, was the only witness to confirm Ojeda's account of multiple attackers, but his testimony indicated that two sets of gunshots were fired.
Ojeda's characterization of a group confrontation, as well as his version of the timing of the shots he fired, were contradicted by eye-witness testimony. Several witnesses testified that they heard two distinct sets of gunfire shots. Dorothy Cerda, Juarez's girlfriend, testified that Juarez and Ojeda were struggling and two shots were fired. Juarez, wounded by one of the shots, began walking toward Cerda. Cerda then noticed Cantu struggling with Ojeda. After the first shots were fired, Cantu confronted Ojeda in an attempt to disarm him. During the Cantu/Ojeda struggle, two more shots were fired and Cantu fell to the ground. Cantu and Marcelino Solis were fatally wounded from this second round of shooting. Esperanza Gallegos, Cerda's mother and eye-witness to the fight, corroborated Cerda's testimony.
Jesse Ortiz, the on-duty security guard, also testified that two sets of shots were fired. Following the second set of shots, Ortiz entered the fracas. Ortiz testified that Ojeda was waving the gun in his face as well as pointing the weapon at the on-lookers. Ortiz struck Ojeda and seized the gun. Ojeda fell to the ground and it was then that a group of individuals began kicking and hitting him. While these witnesses acknowledged that individuals were watching the altercation, no one testified that anyone joined in the Ojeda/Juarez fight or in the Ojeda/Cantu fight.
Ojeda was charged with murder in three separate causes for the shooting deaths of the three men. The causes were consolidated in one trial and the jury found Ojeda not guilty for the death of Juarez by way of self-defense and guilty of murder for the deaths of Cantu and Solis. Ojeda appealed the convictions and this Court reversed and remanded based upon the trial court's failure to include voluntary manslaughter instructions in the jury charge. Ojeda v. State, Nos. 04-92-00560-CR & 04-92-00561-CR (Tex. App.--San Antonio March 9, 1994, no writ) (not designated for publication).
On retrial for murder for the deaths of Cantu and Solis, the jury found Ojeda guilty of voluntary manslaughter for the death of Cantu and guilty of murder for the death of Solis.
By his first point of error, Ojeda contends that the trial court erred in finding him guilty of voluntary manslaughter of Cantu since the State never negated Ojeda's self-defense claim that the shootings were immediately necessary to protect him from the use or attempted use of deadly force by Cantu. Ojeda contends that because "immediate necessity" was established in the first trial when the jury found he was acting in self-defense when Juarez was killed, the State now must negate the immediate necessity issue in order to find him guilty of voluntary ...