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Rodriguez v. State

Court of Appeals of Texas, Fourteenth District

June 20, 2017

JOHNNY OMAR RODRIGUEZ, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1413933

          Panel consists of Justices Boyce, Busby, and Wise.

          OPINION

          Ken Wise Justice.

         Appellant Johnny Omar Rodriguez was indicted for aggravated robbery. After appellant testified, the trial court charged the jury on the lesser-included offense of aggravated assault and on the defense of self-defense, but the court refused a charge on the defense of necessity. The jury found appellant guilty of aggravated assault and assessed punishment at twenty-five years' confinement.

         Appellant challenges his conviction in a single issue: whether the trial court's refusal of the necessity instruction was harmful error. We affirm because appellant has not suffered any harm.

         I. Background

         The complainant, Daniel Hamilton, and appellant both testified at trial. Hamilton testified that he was riding his bike to a Social Security office when appellant and another man stopped their car near him. Appellant got out and called Hamilton a "bitch." Hamilton hopped off his bike and retorted in kind. Appellant snatched Hamilton's phone out of Hamilton's jacket pocket, and Hamilton snatched it back. Appellant lifted his shirt to show Hamilton a handgun, saying he would shoot and whip Hamilton.

         Appellant pulled out the gun and took Hamilton's phone again. Appellant aimed the gun at Hamilton. Hamilton tried to take the gun away, but appellant pulled back and hit Hamilton in the forehead with the gun. The clip fell out, but appellant put the clip back in, and the two started fighting for the gun. Appellant shot Hamilton; the bullet traversed Hamilton's ear, shoulder, and back. Appellant ran back to the car with the phone and took off. Hamilton flagged down a driver and received medical attention. Hamilton testified that he had never met appellant before the encounter.

         Appellant told a different story. He testified that he had sold methamphetamine to Hamilton frequently over the course of four months. Appellant was "fronting" Hamilton the meth-selling the meth to Hamilton on credit. Hamilton owed appellant $900 for the last ounce of meth, and appellant had not seen Hamilton for a while. When appellant saw Hamilton riding a bike, appellant got out of the car to confront Hamilton. Appellant asked Hamilton for the money, and Hamilton was giving answers that led appellant to believe that Hamilton was not going to pay. Appellant got mad.

         Appellant testified, "I was going to get physical, " so he took off his jacket and put it on the car door. Appellant thought they were "just going to fight or something." When Appellant turned around, however, Hamilton was pulling a handgun out of his waistband. Appellant reached for the gun, and he was shot in the hand. The men tripped over the bicycle, and appellant landed on top of Hamilton. Appellant and Hamilton were "tussling" over the gun, and appellant got it.

         The men stood up, and Hamilton lunged at appellant to try to take the gun back. Appellant was thinking "if he takes the gun from me-because I only got one hand-he is going to shoot me, probably in the end killing me." So, appellant ejected the clip and hit Hamilton on the head with the gun.

         Hamilton charged at appellant again, and appellant tried to hit Hamilton with the gun. But Hamilton grabbed appellant's hand. Appellant testified that he was afraid, and he thought it was immediately necessary to defend himself. He testified, "I felt like my life was in danger." He didn't want to be shot again.

         A shot went off, hitting Hamilton. Appellant testified that it wasn't his intention to shoot Hamilton. The gun went off accidentally. Appellant didn't know there was still a bullet in the chamber of the gun.

         Appellant panicked after he shot Hamilton. He fled the scene. He didn't try to get help. He went to a hospital two days later for the injury to his hand. He explained, "I just felt like I was at fault, even though-just for starting it, what the incident was related to and everything . . . . I just felt guilty for what happened." Appellant admitted that he shot and caused bodily injury to Hamilton. But appellant testified that he didn't take anything from Hamilton, and there was no robbery.

         At trial, appellant requested jury instructions on self-defense and necessity. The trial court included a self-defense instruction in the charge but overruled appellant's request for a necessity instruction.

         II.No ...


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