No. 04-14-00500-CR

In the

Fourth Court of Appeals District of Texas

San Antonio, Texas

EDWARD ROMERO, 

Appellant

v.

STATE OF TEXAS, 

Appellee

Trial Cause No. 2013-CR-3128

On appeal from the 186th District Judicial District Court

Bexar County, Texas

APPELLEE STATE’S BRIEF 

NICHOLAS “NICO” LAHOOD

Criminal District Attorney

NATHAN E. MOREY

Assistant Criminal District Attorney

State Bar No. 24074756

CRIMINAL DISTRICT ATTORNEY’S OFFICE

Oral Argument Waived Bexar County, Texas

101 West Nueva, Suite 720

San Antonio, Texas 78205

Voice: (210) 335-2414

Fax: (210) 335-2436

Email: nathan.morey@bexar.org

Attorneys for the State of Texas

ACCEPTED

04-14-00500-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

3/10/2015 5:23:56 PM

KEITH HOTTLE

CLERK
ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

IDENTITY OF THE PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State 

supplements the following individual(s) to the list of parties and counsel:

Nathan E. Morey

Assistant Criminal District Attorney and

Counsel for the State on Appeal

State Bar No. 24074756

101 West Nueva, Suite 720

San Antonio, Texas 78205

Voice: (210) 335-2414

Fax: (210) 335-2436

Email: nathan.morey@bexar.org

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

TABLE OF CONTENTS

Identity of the Parties and Counsel........................................................................... ii

Table of Contents..................................................................................................... iii

Index of Authorities................................................................................................. iv

Statement of the Case.................................................................................................1

Issue Presented...........................................................................................................2

Sole Issue: Was the jury’s verdict rejecting self-defense supported by 

sufficient evidence?..........................................................................2

Statement of Facts......................................................................................................3

Summary of the Argument.........................................................................................4

Argument....................................................................................................................5

Standard of Review............................................................................................5

Applicable Law: Aggravated Assault and Self-Defense...................................6

Application of the Law to the Present Record...................................................6

The trial court correctly instructed the jury on self-defense. ............................7

Prayer .........................................................................................................................9

Certificate of Service ...............................................................................................10

Certificate of Compliance ........................................................................................10

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

INDEX OF AUTHORITIES

Statutes:

TEX. CODE CRIM. PROC. art. 44.02.........................................................................1

TEX. PENAL CODE § 2.03(d)..................................................................................8

TEX. PENAL CODE § 9.31.......................................................................................8

TEX. PENAL CODE § 9.31(a)..............................................................................6, 8

TEX. PENAL CODE § 9.31(b)(1).............................................................................8

TEX. PENAL CODE § 9.31(b)(4).............................................................................8

TEX. PENAL CODE § 9.32(a)..................................................................................8

TEX. PENAL CODE § 12.42(d).................................................................................1

TEX. PENAL CODE § 22.01(a)(1) ............................................................................6

TEX. PENAL CODE § 22.02(a)(1) ............................................................................6

TEX. PENAL CODE § 22.02(a)(2) ........................................................................1, 6

Cases:

Brooks v. State,

323 S.W.3d 893 (Tex. Crim. App. 2010)..........................................................5

Clayton v. State,

235 S.W.3d 772 (Tex. Crim. App. 2007)..........................................................5

Hayes v. State,

728 S.W.2d 804 (Tex. Crim. App. 1987)..........................................................6

Hooper v. State,

214 S.W.3d 9 (Tex. Crim. App. 2007)..............................................................5

Jackson v. Virginia,

443 U.S. 307 (1979)...........................................................................................5

Miranda v. State,

350 S.W.3d 141 (Tex. App.—San Antonio 2011, no pet.) ...............................7

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

Saxton v. State,

804 S.W.2d 910 (Tex. Crim. App. 1991)..........................................................6

Rules:

TEX. R. APP. P. 9.4(i)(2)(B) ................................................................................10

TEX. R. APP. P. 9.4(i)(3)......................................................................................10

TEX. R. APP. P. 9.5(b)..........................................................................................10

TEX. R. APP. P. 26.3 ...............................................................................................1

TEX. R. APP. P. 38.2(a)(1)(A) ............................................................................... ii

TEX. R. APP. P. 38.2(a)(1)(B).................................................................................3

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

TO THE HONORABLE FOURTH COURT OF APPEALS:

Now comes the State of Texas, by and through Nicholas “Nico” LaHood, 

Criminal District Attorney of Bexar County, Texas, and the undersigned assistant 

criminal district attorney, with the filing of the following brief.

STATEMENT OF THE CASE

Edward Romero, hereinafter referred to as Appellant, was convicted by a 

jury for assaulting Melissa Romero with a deadly weapon (C.R. at 7; VI R.R. at 

58). See TEX. PENAL CODE § 22.02(a)(2). After finding that Appellant was a 

habitual felon, the trial court pronounced a life sentence on June 2, 2014 (I 

Punishment R.R. at 1, 75) and entered a judgment of conviction with a certification 

of the right to appeal (C.R. at 87–88, 89). See id. at § 12.42(d). Appellant filed a 

notice of appeal on July 17. 2014 and this Court subsequently granted a motion 

extending the filing deadline. See TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP.

P. 26.3.

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

ISSUE PRESENTED

Sole Issue: Was the jury’s verdict rejecting self-defense supported by 

sufficient evidence?

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

STATEMENT OF FACTS

Supplemental citations to the record are included under each point of error 

below. See TEX. R. APP. P. 38.2(a)(1)(B).

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

SUMMARY OF THE ARGUMENT

Sole Point of Error: The jury erred in not finding Appellant “not guilty” based on 

the Appellant’s assertion of self-defense.

State’s Response: The only evidence supporting Appellant’s self-defense claim 

is thin, circumstantial evidence. On the other hand, there is 

ample direct and circumstantial evidence that both supports

Appellant’s guilt and defeats his self-defense claim. The 

jury rationally rejected the former and accepted the latter. 

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

ARGUMENT

Standard of Review

The prosecution must present sufficient evidence to enable a “rational trier 

of fact” to find, beyond a reasonable doubt, that a defendant is guilty of each 

element of the charged offense. Jackson v. Virginia, 443 U.S. 307, 324 (1979); 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). A reviewing court 

should “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. App. 2010) (citing 

Jackson, 443 U.S. at 319). When the record reflects conflicts in the evidence, a 

reviewing court should “presume that the factfinder resolved the conflicts in favor 

of the prosecution.” Clayton, 235 S.W.3d at 778 (citing Jackson, 443 U.S. at 326). 

Circumstantial evidence should be reviewed in the same manner as direct evidence 

and circumstantial evidence alone can be sufficient to support a verdict of guilt.

Clayton, 235 S.W.3d at 778 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

App. 2007)).

When reviewing a jury’s rejection of a defendant’s claim of self-defense, a 

court must “determine whether after viewing all the evidence in the light most 

favorable to the prosecution, any rational trier of fact would have found the 

essential elements [of the offense] beyond a reasonable doubt and also would have 

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

found against [the defendant] on the self-defense issue beyond a reasonable 

doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

Applicable Law: Aggravated Assault and Self-Defense

A person commits aggravated assault by either intentionally, knowingly or 

recklessly causing serious bodily injury; or by intentionally, knowingly or 

recklessly causing bodily injury while using or exhibiting a deadly weapon. See

TEX. PENAL CODE §§ 22.01(a)(1), 22.02(a)(1) & 22.02(a)(2). A person is justified 

in using force against another “when and to the degree the actor reasonable

believes the force is immediately necessary to protect the actor against the other’s 

use or attempted use of unlawful force. Id. at § 9.31(a). The reasonableness of the 

actor’s belief and appropriateness of the level of force used are questions of fact to 

be resolved by the jury. Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App. 

1987). 

Application of the Law to the Present Record

In this case, the jury only heard one side of the story. Melissa testified that 

Appellant entered her apartment through the window and attacked her with a knife 

(IV R.R. at 85–94, 182–83). The doctor who treated her that night testified that 

she received wounds to her neck and arm that put her life in jeopardy (V R.R. at 

170–76). The only evidence suggesting Appellant acted in self-defense was

medical records indicating that Appellant had some cuts on his hands; however, the 

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

records characterized those cuts as “superficial” and “self-inflicted” (V R.R. at 

184, 186). During the jury charge conference, the trial court responded to 

Appellant’s request for a self-defense instruction: “All right. I’m going to let it in. 

But the only reason I’m going to put it in there is because it’s so easy for it to be an

issue on appeal later on.” (VI R.R. at 7). 

Appellant’s argument is largely premised on the fact that Melissa was 

impeached with her prior statements and the circumstances of her relationship with 

Appellant. However, the legal sufficiency standard of review does not allow this 

Court to second guess the jury’s determination of whether a particular witness was 

telling the truth. Looking at the record in the light most favorable to the verdict, 

this Court must find that the conviction is supported by legally sufficient evidence. 

Miranda v. State, 350 S.W.3d 141, 149 (Tex. App.—San Antonio 2011, no pet.)

(concluding that jury’s rejection of self-defense was supported by legally sufficient

evidence and declining to reconsider witness credibility).

The trial court correctly instructed the jury on self-defense.

Though he does not raise a separate point of error, Appellant complains that 

the trial court incorrectly instructed the jury on the law of self-defense. 

Appellant’s hand-written notations in his appendix suggest that the trial court erred 

by phrasing the second part of the application portion of the self-defense 

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

instruction in the disjunctive instead of the conjunctive (C.R. at 70–71). Appellant 

does not cite to any authority to support his position.

Once a defensive issue is raised by the evidence, “the court shall charge that 

a reasonable doubt on the issue requires that the defendant be acquitted.” TEX.

PENAL CODE § 2.03(d). However, the law of self-defense is a dense statute filled 

with many conditions and presumptions. Id. at § 9.31.

Based on the trial court’s charge, if the jury found beyond a reasonable 

doubt that Appellant’s “use of deadly force was in response to verbal provocation

alone” (C.R. at 71), then they would have been required to find Appellant guilty. 

This is consistent with the law of self-defense. See id. at § 9.31(b)(1). Likewise, if 

the jury found beyond a reasonable doubt that Appellant “did not reasonably

believe that the use of force and degree of force used were immediately necessary 

to protect himself against Melissa Romero’s use or attempted use of deadly force”

(C.R. at 70–71), then they would have been required to find Appellant guilty. This 

is consistent with the law of self-defense. See id. at §§ 9.31(a) & 9.32(a). Still, if 

the jury found beyond a reasonable doubt that Appellant provoked Melissa and did 

not abandon the encounter (C.R. at 71), then they would have been required to find

Appellant guilty. This is consistent with the law of self-defense. See id. at §

9.31(b)(4). Because a single finding beyond a reasonable doubt on each one of 

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

these issues was sufficient to support a verdict in favor of the State, the trial court 

did not err by phrasing these issues in the disjunctive.

The trial court correctly charged the jury and the evidence enabled them to 

rationally convict Appellant of aggravated assault. Accordingly, Appellant’s sole 

point of error should be overruled.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellee State prays the Court 

overrule Appellant’s point of error and affirm the trial court’s judgment of 

conviction and sentence.

Respectfully submitted,

NICHOLAS “NICO” LAHOOD

Criminal District Attorney

Bexar County, Texas

/s/ Nathan E. Morey

NATHAN E. MOREY

Assistant Criminal District Attorney

State Bar No. 24074756

101 West Nueva Street, Suite 720

San Antonio, Texas 78205

Voice: (210) 335-2414

Fax: (210) 335-2436

Email: nathan.morey@bexar.org

Attorneys for the State of Texas

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ROMERO v. STATE, No. 04-14-00500-CR – State’s Brief

CERTIFICATE OF SERVICE

I, Nathan E. Morey, hereby certify that, pursuant to Texas Rule of Appellate 

Procedure 9.5(b), a true and correct copy of the above and forgoing brief was 

mailed to William Baskette on Wednesday, March 11, 2015.

CERTIFICATE OF COMPLIANCE

I, Nathan E. Morey, certify that, pursuant to Texas Rules of Appellate 

Procedure 9.4(i)(2)(B) and 9.4(i)(3), the above response contains 1,918 words 

according to the “word count” feature of Microsoft Office.

/s/ Nathan E. Morey

NATHAN E. MOREY

Assistant Criminal District Attorney

State Bar No. 24074756

101 West Nueva Street, Suite 720

San Antonio, Texas 78205

Voice: (210) 335-2414

Fax: (210) 335-2436

Email: nathan.morey@bexar.org

Attorney for the State of Texas

cc:WILLIAM L. BASKETT

Attorney at Law

State Bar No. 01871400

110 West Nueva Street

San Antonio, Texas 78204

Voice: (210) 930-1200

Fax: (210) 282-2917

Email: ...

Attorney for Appellant

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