The evidence also reflects that the State offered immunity to Zaragoza, the person who provided the gun and drove Appellant to confront Payen.  No accomplice witness instruction was either provided to the jury or requested.  Appellant did request a self-defense instruction, which was denied. v. << (2011)

Court of Appeals of Texas, Waco.

Statement of Facts Isaac Payen and Maryella Longoria worked together at a Fiesta Food Mart store in Fort Worth.  Longoria's boyfriend, Appellant, attended high school with Payen.  Payen testified at trial that he and Longoria were friends;  Appellant testified that Longoria would ask Payen to leave her alone and that Payen would not listen. On July 15, 2009, Longoria told Payen that she thought she was pregnant and that Appellant was the father.  In response, Payen told her that Appellant “better not be” the father “because he's no good, he is like a low life.”  Payen's statement upset Longoria, who called Appellant, crying.  Appellant testified that Longoria told him that Payen “kept bothering her, wouldn't leave her alone.” Appellant's friend Arturo Zaragoza testified that he gave Appellant a ride to Fiesta that night because Appellant wanted to talk to Payen.  Zaragoza testified that Appellant stated that he wanted to scare Payen.  Zaragoza also testified that he had given Appellant a gun three days before because Appellant wanted to show it to his father.  Appellant testified that Zaragoza only gave him the gun when he got in Zaragoza's truck that day, and Appellant denied telling Zaragoza that he wanted to scare Payen. When Appellant and Zaragoza arrived at Fiesta, Payen was leaving in his car.  Zaragoza stopped his truck at a stop sign next to Payen's car so that Appellant, sitting in the passenger seat, was next to Payen's driver's side window.  Appellant told Payen that he “thought [he and Payen] had already ․ settled this, ․ you know,” and asked Payen, “[W]hy you still, you know, messing with my girlfriend?”  Zaragoza testified that Payen and Appellant exchanged words until Zaragoza pulled away.  When Payen turned down the street where Longoria lived, Appellant asked Zaragoza to follow him.  Payen's car was stopped in the street, and Zaragoza stopped his truck behind Payen's car. Zaragoza testified that after a while, Payen got out of his car, approached Zaragoza's truck, and told Appellant to get out of the truck so that they could “settle this,” but Appellant told Payen that he did not want to fight.  Zaragoza stated that Payen threw a punch at Appellant while Appellant was still in the truck.  Appellant testified that Payen grabbed him by the shirt and that he showed Payen the gun so that Payen would let go of him.  Zaragoza testified that Payen grabbed Appellant by his hand and that Appellant and Payen struggled over the gun.  Zaragoza stated that the gun was in Appellant's hand when it was fired but that he could not see whose finger was on the trigger.  The gun went off, shooting Payen in the chest. Zaragoza drove away, with Appellant still in the passenger seat of his truck, and Appellant called Longoria and asked her to call 911.  Zaragoza drove to the Trinity River, and Appellant threw the gun into the river. Payen testified at trial that because of his injury, he had had a stroke, and as a result, he could not remember what happened that evening.  Sufficiency of the Evidence As Appellant points out, the indictment in this case contained two counts, the first count alleging that Appellant intentionally or knowingly caused bodily injury to the complainant, Payen, by shooting him with a firearm, and the second count alleging that Appellant threatened bodily injury to Payen by using or exhibiting a deadly weapon, a firearm.  Both counts were submitted to the jury in a single application paragraph, and a single verdict form allowed the jury to convict under either Count One or Count Two. The evidence also reflects that the State offered immunity to Zaragoza, the person who provided the gun and drove Appellant to confront Payen.  No accomplice witness instruction was either provided to the jury or requested.  Appellant did request a self-defense instruction, which was denied.

NO. 02–10–00135–CR

Decided: April 25, 2011