Yessica Y. Pecina v. The State of Texas

Fourth Court of Appeals San Antonio, Texas

Case Number: 04-16-00472-CR

Judge: Marialyn Barnard

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: n

Nicholas LaHood
Matthew Daniels
Rebecca L. Gorham

Defendant's Attorney:

Edward Francis Shaughnessy III

Description: The evidence shows Pecina and her husband, Tyler Green, as well as the complainant,
Kelsey Kendrick, and Kendrick’s boyfriend, Erik Perez, were living together as roommates in an
apartment when Kendrick decided to move out of the apartment. Kendrick and Perez had recently
ended their relationship, and according to Kendrick, she and Perez had agreed on a specific date
for Kendrick to move out of the apartment. On that day, Kendrick and her father were packing
boxes in the kitchen when Pecina removed some placemats from the kitchen table. Kendrick
testified she told Pecina the placemats belonged to her and asked Pecina to return them. According
to Kendrick, the placemats were originally owned by her parents, who gave them to her when she
moved out of their house. Kendrick stated that when she reached for the placemats, Pecina said,
“Don’t touch me you stupid bitch,” and slapped her across the back of the head. Kendrick testified
she again reached for the placemats, and “[Pecina] just kind of — I guess what you would say in
slang — went off on me. It was hair pulling, scratching, punching, slapping at my face.” Kendrick
stated that as Pecina attacked her, Tyler tried to stop the altercation, and as a result, she fell to the
ground. Kendrick further testified that while she was on the ground, Pecina was “just going at
me,” specifically, “[p]unching, scratching, hair — you know, hair pulling.” Kendrick stated she
continually screamed for Pecina to stop and get off her, and eventually Pecina stopped. At that
point, Kendrick’s father ran to a neighbor’s apartment and called the police. Meanwhile, Kendrick
went to the bathroom to rinse off her face and noticed something was wrong with her eye. She
stated it “felt like maybe an eyelash or sweat or dirt maybe from her nails or just whatever got in
my eye” and as a result, her depth perception was altered.
The jury next heard testimony from Bexar County Deputy Enrique Cepeda, the deputy
dispatched to the apartment. He stated that when he arrived, Pecina and Kendrick had been
separated. He immediately noticed bruises and scratches on Kendrick’s face and called for medical
attention. Specifically, he testified Kendrick’s left eye was very red. He also testified Pecina did
not appear to have any injuries. Deputy Cepeda stated he then interviewed everyone at the location
and learned about the placemat dispute. Deputy Cepeda further testified Kendrick told him the
placemats belonged to her. He also stated, however, that he did not ask Pecina whether the
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placemats belonged to her. When asked whether he could determine who the aggressor in the
altercation was, Deputy Cepeda testified that based on his interviews with everyone and the
injuries he observed on Kendrick, he believed Pecina was the aggressor. As a result, he arrested
Pecina for assault bodily injury.
The jury also heard testimony from Pecina. Pecina testified that when she arrived at the
apartment after work, she was surprised to find Kendrick and Kendrick’s father at the apartment
packing. When asked how the dispute arose, Pecina stated, “I just went up to the table and got my
placemats because they were putting their stuff on the table and all over --.” According to Pecina,
the placemats belonged to her. Pecina stated that when she removed the placemats, Kendrick
accused her of stealing them. Kendrick called her “bad words” and tried to grab the placemats.
Pecina testified that after Kendrick tried to grab the placemats, she “rolled [the placemats] in a
bundle” and walked away. Kendrick again reached for the placemats. Pecina stated that at that
point, her husband “got in front of me because he saw that [Kendrick] was coming — looking
aggressive towards me.” According to Pecina, Tyler was protecting her from Kendrick.
On cross-examination, Pecina further testified that when Kendrick reached for the
placemats a second time, Kendrick was trying to hurt her and she was justified in defending herself.
Pecina admitted, however, that Kendrick did not touch her when she reached for the placemats,
but “was in front of me … look[ing] aggressive trying to go like that.” She added that Kendrick
was “trying to reach to hit me when she was trying to reach for [the placemats].” Pecina further
added that at some point, Kendrick and Tyler fell to the ground and Kendrick started hitting Tyler.
Pecina explained she tried to stop Kendrick from hitting Tyler, and as a result, Kendrick began
hitting her. Thereafter, “we started fighting each other.”
In addition to Pecina’s testimony, the jury heard testimony from Tyler. According to Tyler,
he and his wife owned the placemats. He testified the placemats had been in their possession
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before they lived with Kendrick and Perez. With regard to the altercation, Tyler testified Kendrick
moved toward Pecina “like she was going to strike [her].” As a result, he moved in front of Pecina,
and then Kendrick started swinging at him and Pecina. Tyler stated that when Kendrick began
swinging, he pushed Kendrick back and “[t]he last thing I remember at that point was after I pushed
her, I was on the floor on top of her.” Tyler could not recall exactly how he and Kendrick ended
up on the floor. On cross-examination, when asked whether Kendrick touched him or Pecina
before he pushed Kendrick, Tyler stated he did not know. According to Tyler, he decided to push
Kendrick because “she had the intent” to do something physical to him or Pecina.
After the parties rested, Pecina requested jury instructions on the defensive theories of self
defense and defense of property. The trial court granted the requested instructions; however, the
jury found Pecina guilty of assault bodily injury, implicitly rejecting the defensive theories. Pecina
then perfected this appeal.
ANALYSIS In one issue on appeal, Pecina contends the evidence is legally insufficient to support the
jury’s implicit rejection of her defensive theories. Specifically, she contends the State failed to
meet its burden of persuasion to disprove her claims of self-defense and defense of property.
Standard of Review In reviewing the legal sufficiency of the evidence, we examine all of the evidence in the
light most favorable to the verdict to determine whether, based on that evidence and reasonable
inferences therefrom, a rational juror could have found the essential elements of the offense beyond
a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Saxton v. State,
804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). Under this standard, we must defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility
and the weight to be given their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
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App. 2010) (emphasis in original). We may not re-evaulate the weight and credibility of the
evidence and substitute our own judgment for that of the jury; instead, we must presume the jury
resolved any inconsistencies in the testimony in favor of the verdict and defer to that resolution.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury can choose to believe all,
some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.3d 459, 461
(Tex. Crim. App. 1991); Baez v. State, 486 S.W.3d 592, 594 (Tex. App.—San Antonio 2016, pet.
ref’d.).
Applicable Law Section 9.31(a) of the Texas Penal Code (“the Code”) defines the defensive theory of self
defense. TEX. PENAL CODE ANN. § 9.31(a) (West 2011). Under section 9.31(a), “a person is
justified in using force against another when and to the degree the actor reasonably believes force
is immediately necessary to protect the actor against the other’s use or attempted use of unlawful
force.” Id. The use of force by the actor against another is not justified if the actor provoked the
other’s use of unlawful force unless the actor abandons the encounter. Id. § 9.31(b)(4).
Section 9.41(a) of the Code defines the defensive theory of defense of one’s own property.
Id. § 9.41(a). Under section 9.41(a), “a person in lawful possession of land or tangible, movable
property is justified in using force against another when and to the degree the actor reasonably
believes the force is immediately necessary to prevent or terminate the other’s trespass on the land
or unlawful interference with the property.” Id.
A defendant bears the initial burden of production with regard to a defensive theory.

Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton, 804 S.W.2d at 914. This
requires the defendant to produce some evidence that supports the particular defense. Zuliani, 97
S.W.3d at 594; Saxton, 804 S.W.2d at 913. Once the defendant meets this burden by producing
some evidence, then the State bears the burden of persuasion to disprove the raised defense.

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Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913-14. The burden of persuasion is not one
that requires the production of evidence; rather, the burden requires the State to prove its case
beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. When the
defendant is found guilty, there is an implicit finding against the defensive theory. Zuliani, 97
S.W.3d at 594; Saxton, 804 S.W.2d at 914.
Application In this case, the jury heard conflicting testimony about how the incident started. In support
of her self-defense theory, Pecina testified she was justified in defending herself because she
believed Kendrick was trying to hurt her. When describing how Kendrick tried to hurt her, Pecina
stated Kendrick was “coming — looking aggressive towards me.” She described Kendrick as
“trying to reach to hit me when she was trying to reach for [the placemats].” However, Pecina did
not testify that she believed the use of force was immediately necessary to protect herself from
Kendrick at that point. See TEX. PENAL CODE ANN. § 9.31(a) (indicating actor’s use of force
against another is justified only if actor reasonably believes it is immediately necessary to protect
herself against other’s use of force). Rather, Pecina testified she used immediate force against
Kendrick in order to stop Kendrick from hitting Tyler. In Pecina’s own words, Kendrick “fell on
the floor trying to hurt Tyler and I went to push her away.” Thus, when viewing the evidence in
the light most favorable to the verdict, a rational jury could have reasonably determined that
Pecina’s use of force was not justified because it was not immediately necessary to protect herself
— but rather Tyler — from Kendrick’s use of force. See id.; see also Hooper, 214 S.W.3d at 13;
Saxton, 804 S.W.2d at 913-14.
The jury also heard testimony that Pecina provoked Kendrick’s use of force. See TEX.
PENAL CODE ANN. § 9.31(b)(4) (indicating actor’s use of force is not justified if actor provoked
other). Kendrick testified Pecina slapped her across the back of the head when she attempted to
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reach for the placemats. Kendrick further testified that when she reached for the placemats a
second time, Pecina “went off” on her, pulling her hair as well as scratching and slapping her face.
Similarly, the jury heard evidence from Deputy Cepeda, who testified that based on his interviews
and Kendrick’s injuries, he believed Pecina was the aggressor. Again, when viewing this evidence
in the light most favorable to the verdict, a rational jury could have reasonably determined Pecina
was not justified in using force against Kendrick because Pecina provoked Kendrick’s use of force
by slapping Kendrick across the back of her head and “[going] off” on her See id.; see also Hooper,
214 S.W.3d at 13; Saxton, 804 S.W.2d at 913-14. Although Pecina denied provoking Kendrick,
the jury is the sole judge of the credibility of the witnesses and could have chosen not to believe
Pecina’s testimony supporting her self-defense theory. See Chambers, 805 S.W.3d at 461; Baez,
486 S.W.3d at 594. As pointed out by the Texas Court of Criminal Appeals, we must presume the
jury resolved any conflicts in the evidence in favor of the State and defer to that resolution. See
Isassi, 330 S.W.3d at 638.
As to defense of property, the jury heard conflicting testimony regarding whether Pecina
was in lawful possession of the placemats and therefore, justified in using force against Kendrick
to prevent Kendrick from taking Pecina’s property. See TEX. PENAL CODE ANN. § 9.41 (indicating
person in lawful possession of property is justified in using force against another to stop
interference with property). Here, the jury heard testimony from both Pecina and Tyler that Pecina
owned the placemats. The jury also heard testimony from Kendrick, who testified she owned the
placemats and described the placemats as originally belonging to her parents. Again, viewing the
evidence in the light most favorable to the verdict, a rational jury could have reasonably determined
Pecina was not justified in using force against Kendrick because the jury could have reasonably
believed Pecina was not in lawful possession of the placemats. See id.; see also Hooper, 214
S.W.3d at 13; Saxton, 804 S.W.2d at 913-14. In this case, the jury could have reasonably believed
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the placemats belonged to Kendrick. Even assuming arguendo that Pecina lawfully owned the
placemats, the jury could have reasonably determined Pecina’s use of force was not immediately
necessary to stop Kendrick from interfering with the placemats. See TEX. PENAL CODE ANN.
§ 9.41. At no point did Pecina testify she reasonably believed force was immediately necessary to
stop Kendrick from removing the placemats; rather, Pecina testified the use of force was
immediately necessary to protect Tyler from Kendrick.
With regard to Pecina’s contention that the State failed to meet its burden of persuasion to
disprove her defensive theories, we disagree. We recognize the burden of persuasion does not
require the production of additional evidence; rather, the burden requires the State to prove its case
beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. The jury’s
rejection of Pecina’s defensive claims hinges on the credibility of the witnesses. In this case, the
jury chose not to believe Pecina’s testimony that she acted in self-defense or defense of her
property when she used force against Kendrick. As stated above, when viewing the evidence in
the light most favorable to the verdict, the jury could have rationally rejected Pecina’s defense
claims and found each element of the charged offense was proven beyond a reasonable doubt. See
Hooper, 214 S.W.3d at 13; Saxton, 804 S.W.2d at 913-14. Accordingly, we overrule Pecina’s sole
issue on appeal.
CONCLUSION

Outcome: n

Based on the foregoing, the trial court’s judgment is affirmed.

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Defendant's Experts:

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