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Date: 02-07-2020

Case Style:

Jose Ruperto Alaniz v. The State of Texas

Case Number: 01-18-00599-CR

Judge: Sherry Radack

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Anna Skupin
Jonathan "Bryce" Perry

Defendant's Attorney:


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On December 3, 2014, the complainant, Juan Johnathan Fernandez [“John”],
went with some of his friends to Stage West, a bar in Wichita Falls. John ordered a
drink and then sat down to visit with his friends, Joshua Reed and Jessica Holley.
When John went to the bar to get another round of drinks for his friends, he saw
Joshua’s brother, Justin, at the bar surrounded by three men. Because the discussion
between the men “didn’t look . . . friendly,” John leaned against the bar trying to
listen to their conversation.
While doing so, appellant, who John did not know, got in John’s “personal
space” and asked, “what was up.” John responded likewise, “What’s up?”
Appellant, still “in [John’s] face,” again asked, “What’s up?” John told appellant
that he was “just checking on [his] homeboy to make sure he’s ok.” Appellant
answered, “Well, what if he’s not? What the f— are you gonna do?”
John then swung and hit appellant, knocking him back. John swung again,
but he was not sure if he hit appellant. John stated, “And then I went back and then
he came at me and swung at me and I went to dodge back, but something—I thought
he punched me in the nose.” A videotape of the incident shows John backing up and

then appellant coming toward him and striking at him. A police officer testifying
about this video noted that you could see “[John] backing up and then you saw
[appellant] come toward him and start to strike him.”
John felt that the amount of bleeding from him face was disproportionate to
the blow he had received. He noted, “I was thinking in my head he did not punch
me this hard for me to be bleeding this bad.” John did not see a weapon in appellant’s
hand and did not know that he had been cut or stabbed.
John testified about what he did after noticing that his face was bleeding, as
Q: What happens next?

A: I think about that for a split second and then I charge him, I tackle him into like some tables or something, and then I’m on top of him. And as I’m right on top of him, the bouncer picks me up and like carries me out the door.

Q: Did you ever punch him again?

A: I never got a chance to.

John testified that, after the bouncer shoved him out the door, he felt “weird,”
and said, “I think he stabbed me.” John soon collapsed in the parking lot and was
taken by ambulance to a nearby hospital. There, he was treated for “stabbings to his
face, chest, and abdomen.” John also suffered a collapsed lung from the chest wound
and underwent facial surgery for the cuts to his face. Photographs documenting
John’s extensive injuries were introduced at trial.

Police later located appellant at his friend’s house, and he was arrested.
Photographs were also taken of appellant showing only a small abrasion on his lower
The DNA Evidence
The police executed a search warrant at the house where appellant was
arrested and found several items of blood-stained clothing, as well as a blood-stained
lock-blade knife. The police also found blood stains in the car in which appellant
fled the bar.
Chelsea Wingate, a forensic scientist with the Department of Public Safety
testified that she screened the evidence for the presence of blood, biological fluids,
or other sources of DNA. She testified that she recovered blood from the clothes, as
well as the knife. Regarding the testing of the knife, Wingate testified that it “was
screened for the presence of blood as well as it was swabbed for handler DNA to
determine who was holding the knife.” She explained that, when she tested the
handle of the knife, she tried to avoid the bloodstains so that she could get only the
DNA of persons who might have handled the knife, not just of the person who may
have been cut by the knife. When asked whether she was confident that she did not
collect any blood when she swabbed the handle, Wingate responded, “To my best
knowledge, I didn’t, but I can’t say for sure because sometimes blood, you know, I
mean, it depends, but there could be blood that’s like microscopic that I can’t see.”

Nicole Mullins, a DNA analyst with the Department of Public Safety,
analyzed the samples that Wingate had taken from the evidence. The DNA taken
from the hood and cuff of the denim jacket recovered when appellant was arrested
was from John. Likewise, DNA on the jeans and boots recovered when appellant
was arrested was from John. And, the DNA recovered from the car in which
appellant fled was also from John.
Regarding the knife, Mullins tested both sides of the blade, as well as the
handle. One side of the knife’s blade was a DNA mixture that included appellant’s
DNA; John’s DNA was excluded. The other side of the blade contained a DNA
mixture that included appellant, John, and an unknown contributor. The handle of
the knife contained a DNA mixture of four contributors; appellant, John, and two
unknown contributors. Mullins testified that the majority of the DNA on the handle
was contributed by John. However, when further questioned about whether there
was blood in the DNA mixture that she was testing, Mullins replied:
[I]f we take a swabbing of the knife to see who’s handled it, we try to avoid the bloody areas. Sometimes, depending on how bloody it is, it’s not completely possible to avoid it, but it’s—so I can’t say for sure that there’s no blood in this mixture. So it’s possible it’s just skin cells and it’s also possible that it’s a mixture of blood and skin cells.

Mullins also stated that “from talking with Ms. Wingate when she did the
original screening on this case, [the blood on the knife handle] was difficult to avoid”
because “[t]here were not a lot of areas on the handle that didn’t have blood.”

Appellant’s expert, Dr. Robert Benjamin, testified that he did not “disagree
with any of the work that the DPS DNA experts [Wingate and Mullins]
completed[.]” He testified that, in analyzing DNA, ‘[i]t’s all the same DNA,” but he
noted that some biological sources were more plentiful in producing DNA.
Benjamin noted that between blood and skin, one would be more likely to find more
DNA in blood. Benjamin agreed that if the sample from the knife handle contained
blood, despite efforts to avoid the blood, that could explain why John was the major
contributor to the DNA recovered. Benjamin also stated that “there are too many
factors that you could ever make—[to] say what happened here.”
In his sole issue on appeal, appellant contends the trial court erred in denying
his request for a jury instruction on self-defense. Specifically, appellant argues that
the requested instruction was proper because (1) there was DNA evidence
suggesting that the complainant, John, introduced a knife into what had been a
fistfight, and (2) that, when the complainant tackled appellant, the complainant could
have used his hands as deadly weapons. Appellant contends that either of these
scenarios, which he claims are supported by the evidence, would have required the
trial court to include an instruction on self-defense in the jury charge.


Standard of Review and Applicable Law
A defendant is entitled to a jury instruction on self-defense, when requested,
if the issue of self-defense is raised by the evidence, “whether that evidence is strong
or weak, unimpeached or contradicted, and regardless of what the trial court may
think about the credibility of the defense.” Gamino v. State, 537 S.W.3d 507, 510
(Tex. Crim. App. 2017). When reviewing a trial court’s decision denying a request
for a self-defense instruction, we view the evidence in the light most favorable to the
defendant’s requested submission. Id. A trial court errs in denying a self-defense
instruction if there is some evidence, from any source, when viewed in the light most
favorable to the defendant, that will support the elements of self-defense. Id.
“Deadly force” is “force that is intended or known by the actor to cause, or in
the manner of its use or intended use is capable of causing, death or serious bodily
injury.” TEX. PENAL CODE § 9.01(3). Deadly force is justified in self-defense only
in response to “the other’s use or attempted use of unlawful deadly force,” or “to
prevent the other’s imminent commission of aggravated kidnapping, murder, sexual
assault, aggravated sexual assault, robbery, or aggravated robbery.” See TEX. PENAL
CODE § 9.32(a)(2)(A), (B); see also Bundy v. State, 280 S.W.3d 425, 435 (Tex.
App.—Fort Worth 2009, pet. ref’d) (deadly force not justified in response to non
deadly force); Diaz v. State, No. 01-15-00646-CR, 2016 WL 6111035, at *2 (Tex.
App.—Houston [1st Dist.] Oct. 20, 2016, no pet.) (mem. op., not designated for

publication) (defendant who used deadly force against complainant could claim self
defense only upon showing complainant “used or attempted to use unlawful deadly
force, or that he was about to commit one of the offenses that justify deadly force to
prevent their commission”).
A defendant is not required to testify in order to raise the issue of self-defense;
the issue “may be raised by the testimony of witnesses who testify to the defendant’s
acts and words at the time of the offense.” Reed v. State, 703 S.W.2d 380, 384–85
(Tex. App.—Dallas 1986, pet. ref’d) (citing Smith v. State, 676 S.W.2d 584, 587
(Tex. Crim. App. 1984)); see also VanBrackle v. State, 179 S.W.3d 708, 712 (Tex.
App.—Austin 2005, no pet.) (“Defensive issues may be raised by the testimony of
any witnesses, even those called by the State.”). But when, as here, a defendant does
not testify, there still must be some evidence of the defendant’s subjective belief that
deadly force was immediately necessary to protect himself. See Smith, 676 S.W.2d
at 585 (“[T]o justify the submission of a charge to the jury on the issue of self
defense, there must be some evidence in the record to show that the defendant was
in some apprehension or fear of being the recipient of the unlawful use of force from
the complainant.”); Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d) (“While a non-testifying defendant may be entitled to a
charge on self-defense, it is rare for the defense to be raised when the defendant fails
to testify.”).

The record must contain some evidence or “observable manifestations” of the
defendant’s state of mind at the time of the alleged act of self-defense. See
VanBrackle, 179 S.W.3d at 713 (quoting Reed, 703 S.W.2d at 385). Examples of
observable manifestations of a defendant’s state of mind include evidence that the
defendant called for help during an altercation or told the complainant, “I don’t want
to fight you . . . . leave me alone,” as they struggled. VanBrackle, 179 S.W.3d at 714;
Smith, 676 S.W.2d at 586.
Appellant first argues that, because the DNA evidence shows that the
complainant’s DNA was the predominant DNA on the knife handle, “[i]t is a
reasonable inference from the evidence that [John] took the knife out while mounted
on Appellant and tried to use it.” The State responds that the presence of John’s
DNA on the handle of the knife is not evidence or an “observable manifestation” of
appellant’s state of mind. We agree with the State.
The presence of John’s DNA on the handle of the knife, even if he is the major
contributor of the DNA, is not evidence of appellant’s state of mind, i.e., that
appellant reasonably believed that stabbing John was immediately necessary to
protect himself from deadly force. See, e.g., Morin v. State, No. 14-17-00080-CR,
2018 WL 3625290, at *2 (Tex. App.—Houston [14th Dist.] July 31, 2018, no pet.)
(mem. op., not designated for publication) (testimony that complainant had been

“wielding around a very large knife” not evidence of defendant’s subjective intent,
where there was “no evidence that the [complainant] made any threats” against him);
Alexander v. State, No. 03-14-00290-CR, 2016 WL 286385, at *4 (Tex. App.—
Austin Jan. 21, 2016, pet. ref’d) (mem. op., not designated for publication) (evidence
that complainant “was ‘very angry’ and ‘upset’ during the altercation” and that she
bit defendant’s arm, cut his lip, punched him, and caused him to bleed did not
“establish anything regarding [defendant]’s state of mind during the altercation”);
Campbell v. State, No. 09-02-00054-CR, 2003 WL 21034610, at *2 (Tex. App.—
Beaumont May 7, 2003, pet. ref’d) (not designated for publication) (testimony
showing “violent nature of the victim and his heavy drinking habits” was “absolutely
no evidence as to the state of mind of [defendant] when he stabbed the victim”); cf.
Smith, 676 S.W.2d at 586 (defendant’s statement that he did not want to fight was
evidence of his state of mind); VanBrackle, 179 S.W.3d at 714 (cry for help was an
“observable manifestation” of defendant’s state of mind).
Appellant’s position on appeal rests on his assertion that John had more “touch
DNA” on the handle of the knife, and that “[i]t is a reasonable inference from the
evidence that he took the knife out while mounted on Appellant and tried to use it.”
To evaluate this claim, we first consider whether appellant’s assertion that John
wielded the knife is a “reasonable inference.”

In Cavazos v. State, the defendant, like appellant here, did not provide any
direct evidence of his state of mind. Nos. 04-11-00366-CR & 04-11-00367-CR,
2012 WL 848159, at *1 (Tex. App.—San Antonio Mar. 14, 2012, pet. ref’d) (mem.
op., not designated for publication). Instead, he argued that self-defense was raised
because the scientific evidence showed that the victims had gunshot residue on their
hands. Id. at 2. The defendant argued that the gunshot-residue evidence was
sufficient to support a rational inference that the victims had fired weapons at him.
Id. Even though the firing of a weapon was one possible explanation of the gunshot
residue, the court noted that there was another “equally plausible” explanation, i.e.,
that the victims were near someone who had fired a weapon. Id. Without “other
facts” in the record supporting appellant’s explanation, there was no “rational
inference” that the victims fired weapons but was “mere speculation,” “theorizing
or guessing about the possible meaning of facts and evidence presented.” Id.
We do not agree that appellant’s theory—that John introduced a knife to a
fistfight—is a rational inference from the evidence. As all the experts agreed, there
is no difference in the DNA produced by blood or skin; as Dr. Benjamin noted, ‘[i]t’s
all the same DNA.” While Wingate tried to avoid obtaining DNA from John’s blood
on the knife handle so that she could try to determine who held the knife, all the
experts agreed that, blood in the sample would result in the victim’s DNA being
more heavily present. And, Mullins noted, “There were not a lot of areas on the

handle that didn’t have blood.” Appellant’s own expert, Benjamin, stated, “[T]here
are too many factors that you could ever make—[to] say what happened here.”
The rational inference appellant wants the Court to make, i.e., that John pulled
the knife on appellant, is simply not supported by the mere presence of his DNA on
the knife handle. No evidence showed that John handled a knife and appellant
suffered no injuries other than a small abrasion on his back. Appellant’s conclusion
that John pulled the knife because his DNA was on the knife handle is not a “rational
inference” based on the evidence but is “mere speculation.” See id.; see also Hooper
v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007) (distinguishing between “rational
inferences” and “mere speculation”). As such, we conclude that the DNA evidence
relied on by appellant does not provide the necessary state-of-mind evidence
required to obtain a self-defense charge. See Cavazos, 2012 WL 848159, at *3.
Appellant also argues that, when John tackled him and was positioned on top
of him before being forcibly removed by the bouncer, “[h]e could have easily caused
a serious bodily injury or impairment including beating him to death by striking
[appellant] with his fists.” This evidence does not require a self-defense instruction
for two reasons: First, as discussed above, there is no evidence in the record of
appellant’s state of mind i.e., that appellant reasonably believed that stabbing John
was immediately necessary to protect himself from John’s unlawful use of deadly
force. See, e.g., Morin, 2018 WL 3625290, at *2; Alexander, 2016 WL 286385, at

*4; Campbell, 2003 WL 21034610, at *2. Second, there is no evidence that John
ever used or attempted to use his fists as a deadly weapon after tackling appellant
and getting on top of him. When asked whether he hit appellant after he tackled
him, John replied, “I never got a chance to.” This testimony is undisputed and does
not raise an issue of fact regarding whether appellant was entitled to a charge on self
For these reasons, we overrule appellant’s sole issue on appeal.

Outcome: We affirm the trial court’s judgment.

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