Appeal from the 339th District Court Harris County, Texas
Trial Court Case No. 1316546
consists of Chief Justice Radack and Justices Jennings and
Radack Chief Justice
day, the Court considered the State's motion for
rehearing. The motion is denied. However, we withdraw our
opinion and judgment of February 23, 2017, and issue this
opinion and judgment in their stead.
acquitted appellant, Adrian Aaron Mendez, Jr., of murder, but
found him guilty of the lesser-included offense of aggravated
assault and assessed his punishment at 7 years'
confinement. On appeal, appellant contends that (1) the
evidence is legally insufficient; (2) there was jury charge
error that caused him egregious harm, and (3) the trial court
abused its discretion in refusing to admit evidence of prior
specific acts of violence by the complainant. We reverse and
afternoon of August 5, 2011, appellant went to a convenience
store, Chicano's, where he met up with Haley Barry,
Haley's boyfriend, Brandon, April Santellana, who was
Brandon's sister and whose mother owned the store, and
Romero. Haley described the convenience store as a place that
she and her friends would hang out and "party."
While at the store that day, the members of the group were
"eating Xanax bars, snorting cocaine, smoking weed,
drinking beer, and [doing] anything they could possibly
do." Haley testified that she believed that appellant
had been arguing with his girlfriend earlier, but was feeling
better because he "was all f***** up from eating all of
these [Xanax] bars, and [that] he felt good and he was
that evening, the group decided to go to a bar, Barney's,
to shoot pool and drink beer. Appellant went home to get
ready, and Brandon soon picked up appellant at his apartment.
April and Brandon sat in the front seats, and appellant and
Haley sat in the back seats. On the way to the club,
appellant showed Haley a knife with a three-inch blade that
he was carrying in his pocket. He was concerned about whether
the club would search him and not let him in if they found
the knife. April also heard appellant mention that he was
carrying a knife.
at the bar, appellant's group was joined by
"Red" Kelley and "Keykay" Cobio. Haley
saw appellant drink about a six-pack of beer and smoke
marihuana; April saw him take Xanax. Brandon gave appellant
some cocaine. Haley said that, while at the bar, appellant
was acting "like a badass, like nobody could stop him
from doing anything, like he was on top of the world."
Appellant also told Haley that "he felt like killing
somebody, " but the group "blew off" the
comment as a random statement because appellant had not been
acting confrontational with anyone. The group stayed at the
bar until it closed around 2 a.m. The group then decided to
go to the Big Man Diesel Shop, where Red worked, to continue
appellant and the group he was with had been partying at
Chicano's and Barney's, Roger Guzman and Jacob
Castillo had been drinking beer at Hooter's Restaurant.
Guzman and Castillo had smoked marihuana on the way to the
restaurant and at a friend's house after leaving the
restaurant. While they were at the friend's house, Red
called Castillo and asked them to join the group at the
diesel repair shot, and Castillo and Guzman joined the group
there at about 3 a.m.
after Castillo and Guzman arrived, a verbal altercation began
between Castillo and appellant. The men started yelling at
each other, apparently about Castillo's sister, who was
living with appellant's brother. Guzman intervened and
told them men to "chill, " but soon they began
swinging at one another. The group did not take the
confrontation seriously, with several believing that it was a
joke. Haley saw appellant "hit" Castillo first, but
she soon learned that appellant had stabbed, not hit
Castillo. Castillo began to fight back, swinging at appellant
three times. In return, appellant stabbed Castillo multiple
times in the neck and side. Both men were approximately the
same size, and neither appeared to have the upper hand in the
fight when appellant used the knife. All of the witnesses saw
appellant with a knife, but no one saw Castillo with a knife
and no knife was found at the scene.
separated the men, and Guzman and Haley held shirts to
Castillo's wounds until Haley dialed 911 and an ambulance
arrived. At one point, appellant walked over to Castillo and
tried to shake his hand, but Guzman told him to get away.
who was standing nearby, backed up when he saw Castillo
bleeding because he felt nauseated. Appellant approached
Keykay and asked for a ride home, but Keykay refused.
Appellant told Keykay, "Hey, well, you're going to
take me . . . like saying [Keykay did not] have a
choice." Keykay was afraid that appellant would hurt
him, so he agreed to take appellant home.
appellant returned home, he was wearing different clothes
from when he left. He told his sister Emily, Castillo's
girlfriend, that Castillo and another person had been in a
fight, but that he, appellant, broke it up. Emily did not see
any injuries on appellant, who soon left the apartment with
after the fight, appellant called Red at the diesel repair
shop and asked whether there was surveillance video of the
shop. Castillo's father and his cousin, a Houston police
officer, were present when appellant called Red. Red refused
to destroy the videotapes, but told appellant to come get
them in an effort to have appellant come by so he would be
arrested. Appellant would not come get the tapes, so Red gave
the tapes to appellant's cousin, the police officer, who
in turn gave them to the investigating officers.
the fight, Castillo was taken to Ben Taub Hospital, where it
was believed at first that he would survive. However, he was
in a coma, and he died two months later without ever
regaining consciousness. A medical expert testified that
Castillo died from complications caused by the stabbing,
including bronchial pneumonia, an abscess in his brain, and a
non-healing wound in his armpit area.
testified in his own behalf at trial, stating that he had
known Castillo for several years and knew that Castillo had a
bad reputation for being violent, using guns and knives, and
being in a gang. Appellant testified that he had seen
Castillo fight with his cousins, brothers, and girlfriends.
testified that when Castillo arrived at the diesel repair
shot, he appeared intoxicated and "pissed off, "
and said that he was going to "f*** somebody up."
Appellant said that when he extended his hand to greet
Castillo, Castillo came at him swinging. Knowing
Castillo's reputation for violence, appellant testified
that he believed Castillo was reaching for a gun, so
appellant pulled his knife and stabbed Castillo. He also said
that even after Guzman stepped in and stopped the fight,
Castillo continued to come after him.
said that he did not threaten Keykay to get a ride home, and
that once home, he washed, changed, and threw his bloody
clothes away. He believed that the knife was in his pocket
when he did so.
also denied calling Red and asking him to destroy the
surveillance video and asking the group whether he could get
into Barney's with a knife. During the State's case,
Guzman testified that he never knew Castillo to carry a gun,
so, during the defense's case, appellant elicited
evidence that Guzman had, in fact, been with Castillo when
Castillo fired several shots from Guzman's car near a
nightclub one night.
also presented evidence from several friends and relatives
who were not present the night of the murder, all of whom
testified that Castillo had a reputation for violence, using
guns and knives, and being in a gang.
jury acquitted appellant of murder, but found him guilty of
the lesser-included offense of aggravated assault, and
assessed punishment at 7 years' confinement.
OF THE EVIDENCE
first point of error, appellant contends the evidence is
legally insufficient to support his conviction for aggravated
assault because he was justified in acting in self-defense.
of Review and Applicable Law
person commits an assault if he "intentionally,
knowingly, or recklessly causes bodily injury to
another." Tex. Penal Code Ann. § 22.01(a)(1) (West
Supp. 2016). A person commits the offense of aggravated
assault if he "commits assault as defined in [section]
22.01 and [he] . . . uses or exhibits a deadly weapon during
the commission of the assault." Id. §
22.02(a)(2) (West 2011). A knife is not a deadly weapon per
se. See McCain v. State, 22 S.W.3d 497, 502 (Tex.
Crim. App. 2000). Therefore, it is the State's burden to
not only prove that a knife was used, but that "in the
manner of its ...