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Mendez v. State

Court of Appeals of Texas, First District

April 4, 2017


         On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1316546

          Panel consists of Chief Justice Radack and Justices Jennings and Bland.


          Sherry Radack Chief Justice

         On this 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.

         A jury 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 remand.


         The State's Case

         On the 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 happy."

         Later 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.

         While 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 their party.

         While 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.

         Soon 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.

         Guzman 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.

         Keykay, 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.

         When 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 his nephew.

         The day 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.

         After 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.

         The Defense Evidence

         Appellant 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.

         Appellant 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.

         Appellant 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.

         Appellant 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.

         Appellant 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.

         The jury acquitted appellant of murder, but found him guilty of the lesser-included offense of aggravated assault, and assessed punishment at 7 years' confinement.


         In his 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.

         Standard of Review and Applicable Law

         A 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 ...

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