Omar Hernandez v. the State of Texas

Affirmed and Memorandum Opinion filed July 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00292-CR

OMAR HERNANDEZ, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1652776

MEMORANDUM OPINION

Appellant Omar Hernandez appeals his conviction for murder. In a single
issue, he contends the evidence is insufficient to support the jury’s rejection of his
claims of self-defense and defense of a third person. We conclude that legally
sufficient evidence supports his conviction and affirm the trial court’s judgment.
Background

Appellant shot the complainant, David Lozano, who later died from his
injuries. At trial, appellant claimed he acted in self-defense and in defense of a third
person, but the jury rejected those defensive arguments and found appellant guilty.
The jury heard the following evidence, which we detail in the light most favorable
to the verdict.1

Appellant was married to Wendy, who has two children from a prior marriage
to David. We refer to Wendy’s children—appellant’s stepchildren—as “Mary” and
“Drew.”2 On November 3, 2019, David was completing a visitation weekend with
Mary and Drew. He returned the children to Wendy’s and appellant’s home and
drove away.

When Drew entered the home, he was wearing a jacket/hoodie that David had
bought him, which violated Wendy’s rule that the children were not to wear things
their father bought them in Wendy’s and appellant’s home. Appellant confronted
Drew about the clothes, and Drew went to his room to remove the clothes and call
David. According to Mary, David was returning to the house, and she and Drew
planned to leave with him.

David arrived and stopped his truck in front of the house, and Wendy went to
talk with him through the open passenger-side window. Appellant went outside and
stood by the house briefly. He then approached David’s truck and began yelling at
him. Meanwhile, Drew got into the truck’s back seat, and Mary stood just behind

1
See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (explaining that in a legal sufficiency
review of the evidence in a criminal trial, we view the evidence in the light most favorable to the
prosecution).
2
We use pseudonyms because appellant’s stepchildren were minors at the time of the
shooting. See Tex. R. App. P. 9.10. Mary was fifteen, and Drew was twelve.

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Wendy on the truck’s passenger side. According to Mary and Drew, appellant yelled
threats at David. After David refused to get out of his truck, appellant shot him, and
the bullets penetrated his stomach and arm. David, with Drew still in the backseat
of the truck, drove away to a nearby shopping center parking lot. Mary followed.
Mary and Drew saw David bleeding and in pain. Drew called 911. An ambulance
transported David to the hospital, where he died several days later.

Appellant’s defensive theories were self-defense and defense of a third
person. On these points, the evidence was conflicting. Mary and Drew testified that
David did not make any threatening gestures before the shooting and that there was
enough light to see that David was unarmed.

Appellant’s version differed. After the shooting, appellant went inside the
home and unloaded his gun. He called 911 to report the incident. Officers arrived
to investigate. In a recorded interview played for the jury, appellant said that David
threatened him and his family. He did not say, however, that David had a weapon
or threatened him with one. Appellant said he saw David “reaching” for something
“in the console” before appellant fired the gun.

Wendy testified that David threatened both her and appellant, as well as
appellant’s family, before appellant shot David. Wendy saw David “moving
around” in the truck before the shooting, but she could not see David’s hands and
did not specify that David appeared to be reaching for anything.

Appellant testified that he approached David’s truck because David was
yelling and cursing at Wendy. According to appellant, David began yelling and
cursing at him and threatened to kill appellant and his family. Appellant testified

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that he believed David was reaching for a gun, although he acknowledged that he
did not actually see a gun in David’s hands. 3

Appellant also described an altercation years earlier when David stabbed
appellant with a knife. 4 Appellant stated that David pleaded guilty for the assault
and served time in prison. David had been out of prison for about six months at the
time of the shooting.

The jury charge contained instructions regarding self-defense and defense of
a third party, as well as instructions concerning the presumption of reasonableness
in defending oneself or another person. The jury rejected these defensive issues and
found appellant guilty of murder as charged in the indictment. After the punishment
hearing, the jury rejected appellant’s claim of sudden passion and assessed his
punishment at eighteen years’ confinement in the Texas Department of Criminal
Justice, Institutional Division. The trial court signed a judgment in accordance with
the jury’s verdict.

Analysis

In a single issue, appellant contends that the evidence is legally insufficient to
support his conviction for murder. See Tex. Penal Code § 19.02(b)(2). Appellant
challenges the jury’s rejection of his self-defense and defense of a third party claims.
He does not contest that he intentionally shot David and caused his death.

3
Crime scene investigators found two knives and a sharpening block in the truck’s
passenger seat, but they did not find a gun.
4
According to Wendy, appellant did not require surgery or stitches for his wound and
refused to go to the hospital. A photograph depicting a healing scratch on appellant’s stomach
associated with this incident was admitted into evidence.

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A. Standard of Review and Applicable Law

We review the legal sufficiency of the evidence to support a jury’s rejection
of a self-defense claim under the familiar Jackson v. Virginia standard. See Martinez
v. State, 633 S.W.3d 698, 704 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d).
Under that standard, we examine all the evidence in the light most favorable to the
verdict and determine whether a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319 (1979). We presume that the jury resolved conflicting evidence and
inferences in favor of the verdict. See Braughton v. State, 569 S.W.3d 592, 607-08
(Tex. Crim. App. 2018); Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d).

The State is not required to produce evidence to refute a defendant’s self-
defense claim. Braughton, 569 S.W.3d at 608-09. It is the defendant’s burden to
produce some evidence in support of his self-defense claim. Id. Once the defendant
produces such evidence, the State has the ultimate burden of persuasion to disprove
it. See id. The burden of persuasion does not require that the State produce evidence
disproving the defense; rather, it requires that the State prove its case beyond a
reasonable doubt. See id. (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim.
App. 1991)). In reviewing the evidence, we must remain mindful that we defer to
the jury’s determinations of the witnesses’ credibility and the weight to be given
their testimony, as the jury is the sole judge of those matters. Jackson, 443 U.S. at
326; see Braughton, 569 S.W.3d at 609. Self-defense is a fact issue to be determined
by the jury, and the jury is free to accept or reject any defensive evidence on this
issue. See Braughton, 569 S.W.3d at 609 (citing Saxton, 804 S.W.2d at 914). If the
jury finds the defendant guilty, it implicitly rejects his self-defense theory. See id.
(citing Saxton, 804 S.W.2d at 914).

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Under Penal Code section 9.31, a person is justified in using force against
another when and to the degree that person reasonably believes the force is
immediately necessary to protect himself against another person’s use or attempted
use of unlawful force. Tex. Penal Code § 9.31(a). Verbal provocation alone is
insufficient to justify self-defense. See id. § 9.31(b)(1); Walters v. State, 247 S.W.3d
204, 213 (Tex. Crim. App. 2007).

Under section 9.32(a), a person is justified in using deadly force if he would
be justified in using force under section 9.31, and he reasonably believes that deadly
force is immediately necessary to protect himself against another’s use or attempted
use of deadly force. Tex. Penal Code § 9.32(a)(2). The “reasonably believes”
language contains both subjective and objective components: a defendant must
subjectively believe that another person used or attempted to use unlawful force
(section 9.31) or deadly force (section 9.32) against the defendant and the
defendant’s use of unlawful or deadly force in response was immediately necessary.
Lozano v. State, 636 S.W.3d 25, 32 (Tex. Crim. App. 2021) (citing Werner v. State,
711 S.W.2d 639, 645 (Tex. Crim. App. 1986); Semaire v. State, 612 S.W.2d 528,
530 (Tex. Crim. App. 1980)). Additionally, the defendant’s subjective belief must
be reasonable, that is, a belief held by an “ordinary and prudent man in the same
circumstances as the actor.” Id.; Tex. Penal Code § 1.07(a)(42). The actor’s belief
that deadly force was immediately necessary is presumed reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was
used was committing or attempting to commit aggravated kidnapping, murder,
sexual assault, aggravated sexual assault, robbery, or aggravated robbery; (2) did not
provoke the person against whom the force was used; and (3) was not otherwise
engaged in criminal activity at the time the force was used. See Tex. Penal Code
§ 9.23(b).

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Section 9.33 provides that a person is justified in using force or deadly force
against another to protect a third person if he would be justified under section 9.31
or 9.32 in using force or deadly force to protect himself against the unlawful force
or deadly force he reasonably believes to be threatening the third person he seeks to
protect, and he reasonably believes that his intervention is immediately necessary to
protect the third person. Id. § 9.33. “In other words, a defendant is justified in
defending a third person if, under the circumstances as the defendant reasonably
believes them to be, the third person would be justified in defending himself.”
Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016). The jury received
instructions consistent with this law.

B. Application

Appellant claims that he reasonably feared for his life and the lives of his
family members, and thus he was justified in shooting David. Specifically, appellant
argues that: (1) David verbally threatened deadly harm to appellant and his family;
(2) appellant saw David moving around in his truck, which made appellant think that
David might have been reaching for a weapon, including a gun; and (3) David had
previously assaulted appellant with a knife and threatened appellant and his family.
The jury heard appellant’s testimony in support of his arguments. The jury also
heard Wendy’s testimony that David threatened her and appellant and that she saw
David moving around in the truck, although she never saw him with any weapons in
hand.

Relying solely on his own testimony, appellant contends that he was entitled
to a presumption that his use of deadly force was reasonable. See Tex. Penal Code
§ 9.32(b), (c). The jury was instructed on this presumption, as well as the general
law of self-defense and defense of a third party. By its verdict, the jury indicated
that it believed Mary’s and Drew’s version of events, rather than appellant’s.

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“‘Defensive evidence which is merely consistent with the physical evidence at the
scene of the alleged offense will not render the State’s evidence insufficient since
the credibility determination of such evidence is solely within the jury’s province
and the jury is free to accept or reject the defensive evidence.’” Braughton, 569
S.W.3d at 609 (quoting Saxton, 804 S.W.2d at 914). Although appellant points to
asserted inconsistencies, contradictions, and biases he claims are apparent in Mary’s
and Drew’s testimony, it is the jury’s province to resolve those inconsistencies and
weigh witness credibility. See id. at 608-09.

Further, even assuming that David made the verbal threats appellant attributed
to him, such verbal provocations alone would not justify appellant’s use of deadly
force. See Tex. Penal Code § 9.31(b)(1); Walters, 247 S.W.3d at 213. No one
testified that David used or attempted to use unlawful deadly force or threatened
appellant or anyone else with a weapon before appellant shot David. Thus, even if
the jury credited appellant’s testimony, the jury reasonably could have believed that
the use of deadly force was not immediately necessary to protect either appellant or
Wendy from David’s use or attempted use of unlawful deadly force. See Henley,
493 S.W.3d at 89 (“[F]orce that is ‘immediately necessary’ to protect oneself or
another from a person’s use of unlawful force is force that is needed at that
moment—when a split second decision is required.” (second internal quotation
omitted)); see also Rankin v. State, 617 S.W.3d 169, 183 (Tex. App.—Houston [1st
Dist.] 2020, pet. ref’d); Mitchell v. State, 590 S.W.3d 597, 604-05 (Tex. App.—
Houston [1st Dist.] 2019, no pet.); Bundy v. State, 280 S.W.3d 425, 435 (Tex.
App.—Fort Worth 2009, pet. ref’d).

In sum, “it is apparent that appellant’s defensive claims hinged almost entirely
on the credibility of the witnesses who viewed the events,” i.e., Drew, Mary, Wendy,
and appellant. See Braughton, 569 S.W.3d at 610. It was for the jury to weigh these

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competing versions of events and believe or disbelieve the testimony as it saw fit.
Our review of the record shows that the evidence (1) was legally sufficient for the
jury to find that appellant committed murder and (2) supports the jury’s implicit
rejection of appellant’s theory that he acted in self-defense or defense of a third party.

Accordingly, we overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).

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