Elizondo, Jose Guadalupe Rodriguez ( 2015 )


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  •                                                                                      PD-1039-14
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    March 12, 2015                                                    Transmitted 3/11/2015 3:54:30 PM
    Accepted 3/12/2015 9:11:00 AM
    ABEL ACOSTA
    PD-1039-14                                                   CLERK
    Court of Criminal Appeals of Texas
    Jose Guadalupe Rodriguez Elizondo,
    Appellant
    v.
    State of Texas,
    Appellee
    ON APPEAL FROM CAUSE NO. 13-12-00028-CR IN THE THIRTEENTH COURT OF
    APPEALS
    TRIAL COURT CAUSE NO. CR-3485-10-I
    398TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS
    HON. AIDA SALINAS FLORES/HON. LINDA YAÑEZ PRESIDING
    APPELLANT JOSE GUADALUPE RODRIGUEZ ELIZONDO’S
    AMENDED PETITION FOR DISCRETIONARY REVIEW
    ORAL ARGUMENT REQUESTED                      Brandy Wingate Voss
    State Bar No. 24037046
    SMITH LAW GROUP, P.C.
    820 E. Hackberry Ave.
    McAllen, TX 78501
    (956) 683-6330
    (956) 225-0406 (fax)
    Counsel for Appellant Jose
    Guadalupe Rodriguez Elizondo
    IDENTITY OF JUDGE, PARTIES, AND COUNSEL
    Trial Court Judges                      Hon. Aida Salinas Flores
    Hon. Linda Yañez sitting by assignment
    Appellant                               Appellate Counsel
    Jose Guadalupe Rodriguez Elizondo       Brandy Wingate Voss
    Smith Law Group, P.C.
    820 E. Hackberry Ave.
    McAllen, Texas 78501
    Trial Counsel
    Santos Maldonado, Jr.
    209 E. University Dr.
    Edinburg, Texas 78539
    Appellee                                Trial Counsel
    State of Texas                          Rolando Cantu
    Criselda Rincon-Flores
    Hidalgo County District Attorney’s
    Office
    Asst. Criminal District Attorneys
    100 N. Closner
    Edinburg, Texas 78539
    Appellate Counsel
    Ted Hake
    Michael Morris
    Hidalgo County District Attorney’s
    Office
    Assistant District Attorneys—Appeals
    Division
    100 N Closner Rm 303
    Edinburg, TX 78539
    i
    TABLE OF CONTENTS
    IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................................ i
    TABLE OF CONTENTS ............................................................................................. ii
    INDEX OF AUTHORITIES ....................................................................................... iv
    STATEMENT REGARDING ORAL ARGUMENT................................................. vi
    STATEMENT OF THE CASE ................................................................................... vi
    STATEMENT OF PROCEDURAL HISTORY ....................................................... viii
    GROUNDS FOR REVIEW ........................................................................................ ix
    ARGUMENT................................................................................................................ 1
    I.       Fleeing to a vehicle nearly 70 yards away from an initial
    altercation should be sufficient abandonment and not a mere
    change of position. ............................................................................................. 1
    II.      The court of appeals should have analyzed all the elements
    of Smith v. State before determining that Elizondo
    provoked the second altercation. ....................................................................... 3
    III.     The court of appeals affirmed on a jury charge that was
    grossly incorrect by ignoring and then misapplying this Court’s precedent. .... 8
    A.      The court of appeals erroneously refused to review two
    omissions from the charge, in conflict with this Court’s
    prior decisions .......................................................................................... 9
    B.      The court of appeals erroneously failed to properly apply
    the appropriate harm analysis to the other charge errors ..................... 11
    ii
    C.       The jury charge was a garbled mess, and a review of the
    complete charge and application of the proper harm
    analyses requires reversal. ...................................................................... 15
    CONCLUSION AND PRAYER................................................................................ 19
    CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e) ....................................... 20
    CERTIFICATE OF SERVICE ................................................................................... 21
    APPENDIX ................................................................................................................. 22
    iii
    INDEX OF AUTHORITIES
    Cases
    Barrera v. State,
    
    982 S.W.2d 415
    (Tex. Crim. App. 1998)....................................................... 10, 11
    Brown v. State,
    
    651 S.W.2d 782
    (Tex. Crim. App. 1983) ............................................................... 17
    Carlile v. State,
    
    255 S.W. 990
    (Tex. Crim. App. 1923). .................................................................... 2
    Cornet v. State,
    
    417 S.W.3d 446
    (Tex. Crim. App. 2013) ............................................................... 14
    Elizondo v. State,
    No. 13-12-00028-CR, 2014 WL222834 (Tex. App.—Corpus Christi
    Jan. 16, 2014, pet. filed) (mem. op., not designated for publication) ............. passim
    Ervin v. State,
    
    367 S.W.2d 680
    (Tex. Crim. App. 1963) ................................................................. 2
    Frank v. State,
    
    688 S.W.2d 863
    (Tex. Crim. App. 1985) ............................................................... 
    10 Gray v
    . State,
    
    388 S.W.2d 710
    (Tex. Crim. App. 1964). ................................................................ 2
    Lerma v. State,
    
    807 S.W.2d 599
    (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) ..................... 10
    Mendoza v. State,
    
    349 S.W.3d 273
    (Tex. App.—Dallas 2011, pet. ref’d).................................. 6, 17, 19
    iv
    Reeves v. State,
    No. 01-10-00395-CR, 
    2012 WL 5544770
    (Tex. App.—Houston
    [1st Dist.] Nov. 15, 2012) (mem. op. on reh’g, not designated for publication)..6, 7
    Reeves v. State,
    
    420 S.W.3d 812
    (Tex. Crim. App. 2013) ..................................................... 6, 9, 15
    Reynolds v. State,
    
    371 S.W.3d 511
    (Tex. App.—Houston [1st Dist.] 2012, no pet.) ........................... 10
    Saxton v. State,
    
    804 S.W.2d 910
    (Tex. Crim. App. 1991) ............................................................... 13
    Smith v. State,
    
    965 S.W.2d 509
    (Tex. Crim. App. 1998) .................................................... 3, 4, 6, 7
    Vega v. State,
    
    394 S.W.3d 514
    (Tex. Crim. App. 2013) ............................................................... 11
    Statutes
    TEX. PENAL CODE ANN. § 9.04 ..................................................................................... 9
    TEX. PENAL CODE ANN. § 9.31 ..................................................................................... 1
    TEX. PENAL CODE ANN. § 9.32 ................................................................................... 12
    Secondary Authority
    Tex. Pattern Jury Charges, Criminal Defenses, § B14.2 ............................................... 16
    v
    TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
    Appellant, Jose Guadalupe Rodriguez Elizondo, respectfully requests that this
    Court grant his petition for discretionary review and respectfully shows:
    STATEMENT REGARDING ORAL ARGUMENT
    Oral argument would be beneficial in this case because it presents unique
    circumstances that should be addressed by this Court. Specifically, this case presents
    complicated issues of self-defense, provocation, and abandonment of the difficulty,
    and a grossly erroneous jury charge on those defensive issues, with which counsel for
    appellant can assist the Court through oral argument.
    STATEMENT OF THE CASE1
    This case involves complicated isues of self-defense arising from two separate
    altercations. After his wife was mistreated by a bouncer at a nightclub, Elizondo—an
    off-duty United States Customs officer—was involved in an initial altercation with
    the bouncer and several others outside the club.2 Elizondo was outnumbered during
    this initial altercation, and he feared for his life.3 The undisputed evidence shows
    1
    The clerk’s record consists of one volume and two supplemental volumes, which will be
    2
    16RR183-192.
    3
    12 RR 178, 180; 16RR191-195; 17 RR 19, 21.
    vi
    that Elizondo sought to abandon the difficulty by running nearly seventy yards to his
    truck and getting inside the vehicle.4
    Nevertheless, the bouncers chased Elizondo all the way to his truck, cursing
    and yelling at him to stop running, and then “banging on the windows” of the truck
    to force him out.5 Once at the truck, Elizondo was forcefully removed from it and
    engaged in a second altercation with the men.6 As part of this second altercation, the
    club’s owner, Fermin Limon, Sr., pointed a gun at Elizondo, refused to put the
    weapon down after being told to do so by Elizondo, and Elizondo fired his own gun
    in self-defense, causing Limon, Sr.’s death.7
    The court of appeals acknowledged this sequence of events but dismissed
    Elizondo’s self-defense argument with two short, conclusory paragraphs, glossing
    over Elizondo’s arguments distinguishing the two altercations and his assertion that
    he abandoned the difficulty. Elizondo v. State, No. 13-12-00028-CR, 2014
    WL222834, at *6 (Tex. App.—Corpus Christi Jan. 16, 2014, pet. filed) (mem. op.,
    not designated for publication). The court held that an alleged statement by
    Elizondo after he had already started to flee the difficulty and after the men initiated
    4
    12RR178, 180; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-137, 233;
    16RR113, 197; 21RRDX21.
    5
    13RR149, 179; 14RR104, 105; 15RR41-42, 237; 16RR27-29.
    6
    16RR201-203.
    7
    12RR180-181; 13RR16, 68-69, 134-137, 171-173; 14RR108-109, 250; 15RR15-17, 44-47,
    138, 140, 143, 152; 16RR38, 206-207, 214-215.
    vii
    a chase to his vehicle provoked the second altercation, undermining Elizondo’s self-
    defense justification. 
    Id. The court,
    however, did not analyze the elements of
    provocation with respect to these statements. 
    Id. Moreover, the
    jury charge was incomplete and woefully erroneous. The court
    of appeals rejected Elizondo’s complaints about the jury charge without analyzing all
    of Elizondo’s arguments and without conducting a full harm analysis. 
    Id. Elizondo is
    currently serving a 25-year sentence for murder.8
    STATEMENT OF PROCEDURAL HISTORY
    Date and citation to Court of Appeals   The Thirteenth Court of Appeals issued
    Opinion:                                its opinion and judgment on January
    16, 2014. Elizondo v. State, No. 13-12-
    00028-CR, 2014 WL222834 (Tex.
    App.—Corpus Christi Jan. 16, 2014, pet.
    filed) (mem. op., not designated for
    publication).
    Motion for Rehearing and                Elizondo timely filed motions for
    Reconsideration En Banc:                rehearing and for reconsideration en
    banc on March 3, 2014 (the Thirteenth
    Court granted an extension of time).
    Court of Appeals’ Disposition:          The Thirteenth Court of Appeals
    overruled Elizondo’s motions for
    rehearing and for reconsideration en
    banc on June 30, 2014, and this Court
    extended the time to file a petition for
    discretionary review.
    8
    CR69-71.
    viii
    GROUNDS FOR REVIEW
    1.     The evidence showed that Elizondo fled nearly 70 yards to his vehicle
    and got inside—the only realistic place to run under the circumstances—only to be
    chased by his attackers and forcibly removed from the vehicle. Under those
    circumstances, did Elizondo sufficiently “abandon the difficulty” to support a self-
    defense justification, or was his flight a mere change of position of the parties and a
    continuation of the prior altercation?
    2.     The State alleged that after Elizondo fled the initial altercation and after
    his attackers began their pursuit, Elizondo made statements that provoked a second
    attack. Was the court of appeals required to conduct a full analysis of the elements
    of provocation under Smith v. State, including (1) whether the defendant did some
    act or used some words which provoked the attack on him; (2) whether the act or
    words were reasonably calculated to provoke the attack; and (3) whether the act was
    done or the words were used for the purpose and with the intent that the defendant
    would have a pretext for inflicting some harm on another? Should the Court reverse
    and render a judgment of acquittal when the words allegedly spoken after a pursuit
    was already underway could not have possibly provoked a pursuit and a further
    attack, and where there is no evidence that the defendant intended to provide a
    pretext for inflicting harm?
    ix
    3.     The jury charge contained numerous errors and omissions, which the
    court of appeals recognized. Yet the court of appeals erroneously (1) held that
    omissions from the charge were waived by defense counsel, and (2) failed to apply
    the appropriate harm standard to all the errors presented. Should the Court reverse
    under these circumstances, where after applying the correct harm analysis, it appears
    that the charge as a whole was incomplete, the instructions actually provided were
    woefully inaccurate, and the charge failed to protect and preserve Elizondo’s only
    defense?
    x
    ARGUMENT
    I.    Fleeing to a vehicle nearly 70 yards away from an initial
    altercation should be sufficient abandonment and not a mere
    change of position.
    Provocation and abandonment are central, complex issues in this case,
    involving a multi-part inquiry. The court of appeals below failed to conduct a
    thorough analysis, instead essentially ignoring Elizondo’s “abandonment” argument.
    As a result, a former United States Customs officer is serving a twenty-five year
    murder sentence.
    “[A] person is justified in using force against another when and to the degree
    the actor reasonably believes the force is immediately necessary to protect the actor
    against the other’s use or attempted use of unlawful force.” TEX. PENAL CODE ANN.
    § 9.31(a). A defendant, however, is not entitled to use force “if the actor provoked
    the other’s use or attempted use of unlawful force, unless: (A) the actor abandons
    the encounter, or clearly communicates to the other his intent to do so reasonably
    believing he cannot safely abandon the encounter; and (B) the other nevertheless
    continues or attempts to use unlawful force against the actor . . . .” 
    Id. § 9.31
    (b)(4).
    When there are multiple altercations, courts looking at provocation first
    determine if the initial encounter was abandoned. See Carlile v. State, 
    255 S.W. 990
    ,
    991-92 (Tex. Crim. App. 1923). This Court has held that “the abandonment of the
    1
    difficulty by the defendant does not arise where the difficulty was continuous, the
    only change being in the position of the parties during the progress of the
    encounter.” Ervin v. State, 
    367 S.W.2d 680
    , 683-84 (Tex. Crim. App. 1963). Rather,
    it is “necessary that the intention to abandon the difficulty be, in some manner,
    communicated by the appellant so as ‘to advise his adversary that his danger had
    passed, and make his conduct thereafter the pursuit of vengeance rather than
    measures to repel the original assault.’” 
    Id. at 684.
    Logically, flight from an altercation will always be a “change of the position of
    the parties,” and this Court has never explained just how much distance is enough
    to constitute abandonment. The Court should take the opportunity to clarify that
    fleeing to a vehicle—where that is the only reasonable location to retreat—is sufficient
    abandonment. See, e.g., Gray v. State, 
    388 S.W.2d 710
    , 712 (Tex. Crim. App. 1964).
    Here, it is undisputed that the first altercation occurred at the nightclub’s
    door. Regardless of whether Elizondo provoked the initial altercation, he
    nevertheless ran almost 70 yards to his vehicle, got inside, and shut the door.9 This
    was not a mere “change of position.” Running that far away from an altercation and
    getting in a vehicle is abandonment, yet the lower court’s opinion does not address
    whether Elizondo’s flight sufficiently communicated his intent. There was no
    9
    11RR95; 12RR178, 180-181; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-
    137, 233; 16RR113, 197; 21RRDX21.
    2
    testimony (1) demonstrating that Elizondo could have fled to any other location, or
    (2) that Elizondo should have left his wife and truck at the establishment in order to
    abandon the altercation.10 It is unclear what more he could have done. That should
    not be the law in Texas, and this Court should grant the petition to clarify the law of
    abandonment.
    II.   The court of appeals should have analyzed all the elements of
    Smith v. State before determining that Elizondo provoked the
    second altercation.
    The court of appeals found that Elizondo provoked the second altercation, yet
    it did so without conducting a full analysis as required in Smith v. State, 
    965 S.W.2d 509
    , 512 (Tex. Crim. App. 1998). To invoke the provocation exception to self-
    defense, the State must show that
    (1)      that the defendant did some act or used some words which
    provoked the attack on him,
    (2)       that such act or words were reasonably calculated to provoke the
    attack, and
    (3)       that the act was done or the words were used for the purpose
    and with the intent that the defendant would have a pretext for
    inflicting harm upon the other.
    
    Id. The State
    must show that Elizondo performed some act or used words that
    actually provoked the attack, the words or acts were the type that would ordinarily
    10
    See generally RR.
    3
    provoke an attack, and he intended to provoke an attack to have a pretext for killing
    Limon, Sr. See 
    id. Elizondo specifically
    argued that the first and second altercations should be
    distinguished based on the timing of the events, the first altercation was abandoned
    when he ran to nearly 70 yards and got inside his vehicle, and there was no evidence
    he said or did anything as a pretext to kill Limon, Sr. Rejecting Elizondo’s
    arguments in one short paragraph, the court below held:
    Elizondo argues, however, that even assuming he provoked the
    initial difficulty, he abandoned this first encounter near the bar by
    running to his pickup truck. This abandonment would thus make him
    eligible for the self-defense affirmative defense. However, we conclude
    that a reasonable jury could have found otherwise. Junior testified that
    when Elizondo left the first difficulty and ran to his pickup truck, he
    was yelling, “Van a ver,” roughly translated as “You will see.” Junior was
    frightened by that statement and believed it constituted a threat to him
    and his co-workers. Further, the jury had Elizondo’s police statement
    wherein he admitted that he “ran towards [his] truck where [he] had
    [his] duty issued H & K 40 Caliber handgun.” This evidence supports
    the jury’s implied finding that Elizondo was running to his truck for his
    firearm, not to abandon or discontinue the fight.
    Elizondo, 
    2014 WL 222834
    , at *6 (citations omitted).
    Affirming on these grounds, however, the court failed to address all of
    Elizondo’s arguments, including:
    a.     The court of appeals relied on Elizondo’s alleged statement “van a
    ver”—translated as “you will see”—while running away from the initial altercation. 
    Id. 4 Elizondo
    argued that these words did not actually provoke the pursuit, which was
    already under way, or the continued attack at his truck. Elizondo expressly testified
    that he ran to his truck to get away from his attackers and got inside the vehicle.11
    The only testimony regarding the initial reason for the chase came from a bouncer
    named “Junior,” who claimed that he followed Elizondo to his truck to make sure
    he left safely, which is completely consistent with Elizondo’s abandonment of the
    difficulty.12 The court of appeals disregarded this uncontradicted testimony.
    Yet, upon arriving at the truck and discovering Elizondo inside, Junior did
    not then just make sure that Elizondo left—he admitted to hitting Elizondo’s vehicle,
    and other witnesses testified that Junior was also yelling, “Get off, asshole.”13 In fact,
    Rodrigo testified that Junior was trying to get Elizondo to come out of his truck.14
    Junior testified that while Elizondo was running away he said the words, “Van
    a ver,” or “you’re going to see,” claiming that he took those words as a threat, but
    Junior expressly testified that he had already started the pursuit by that time.15 Thus,
    those words did not actually provoke the pursuit of Elizondo by Rodrigo, Bryan, and
    11
    16RR113-114, 191-195; 21RRDX21.
    12
    16RR9-10, 25.
    13
    13RR149, 179; 14RR104-105; 15RR41-42; 16RR27-29.
    14
    15RR80.
    15
    15RR234-235.
    5
    Junior, which was already underway.16 
    Smith, 965 S.W.2d at 512
    (“A defendant may
    have a desire that the victim will attack him, or he may seek the victim with the
    intent to provoke a difficulty, but the defendant must go further and do or say
    something which actually provokes the attack before he will lose his right to self-
    defense.”) (emphasis added); Reeves v. State, No. 01-10-00395-CR, 
    2012 WL 5544770
    , at *4 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012) (mem. op. on reh’g,
    not designated for publication) (“Such threats and conduct could not have provoked
    a fight that was already in progress.”), aff’d, 
    420 S.W.3d 812
    (Tex. Crim. App. 2013).
    This would be a necessary element of any claim by the State that Elizondo’s words,
    while already running away, actually provoked the second altercation, and it is
    simply insufficient given the sequence of events. See Mendoza v. State, 
    349 S.W.3d 273
    , 280-81 (Tex. App.—Dallas 2011, pet. ref’d).
    b.       The court of appeals likewise did not address whether the words “van a
    ver” were reasonably calculated to provoke a pursuit and further attack. In fact, the
    opinion does not mention this requirement at all. Elizondo argued there was no
    showing that the words were reasonably calculated to provoke an attack or that the
    words were used for the purpose and with the intent to provide Elizondo with a
    pretext for inflicting harm upon Junior or the ulitmate victim, Limon, Sr. Smith, 965
    16
    
    15RR234-235. 6 S.W.2d at 512
    . “Although a jury can rely upon wholly circumstantial evidence to
    find provoking acts or words, such evidence must create more than a suspicion
    because juries are not permitted to reach speculative conclusions.” Reeves, 
    2012 WL 5544770
    , at *5. There was simply no evidence to support a finding that the words,
    “Van a ver,” were of the type that were reasonably capable of causing an attack or
    had a reasonable tendency to cause an attack. 
    Smith, 965 S.W.2d at 517
    (“An act is
    reasonably calculated to cause an attack if it is reasonably capable of causing an
    attack, or if it has a reasonable tendency to cause an attack. Some provoking acts or
    words can by their own nature be legally sufficient to support a jury finding.”).
    In fact, Junior’s own explanation for the pursuit belies any reliance on the
    words, “Van a ver,” as the provocation for the second altercation, as he testified he
    followed merely to make sure that Elizondo was going to leave and that Elizondo’s
    words were spoken after the pursuit was already underway.17 Yet, once he discovered
    Elizondo already inside the vehicle, he banged on the window to get him out of the
    truck.
    There was nothing presented that showed that Elizondo intended to do
    anything other than escape the attack by running to his truck—there is nothing to
    support a finding that Elizondo intended his actions to provoke Limon, Sr. into
    17
    15RR234-235; 16RR9-10, 25.
    7
    pointing a weapon at him as a pretext for killing him. The court of appeals relied on
    a statement given to police where Elizondo said that he “ran towards [his] truck
    where [he] had [his] duty issued H & K 40 Caliber handgun.” Elizondo, 
    2014 WL 222834
    , at *6. The fact that Elizondo ran towards his truck where his gun was
    located does not imply that he intended to continue the altercation at the truck or
    that he intended to use the altercation as a pretext to kill Limon, Sr.—in fact, the
    same statement shows that Elizondo perceived that the men were “attacking” him
    and he “just thought [he] needed to get away from them before they take him to the
    ground.”18 The statement relied upon by the court of appeals can only support its
    decision when taken completely out of context. Elizondo respectfully requests that
    this Court grant the petition and conduct the analysis that the court of appeals
    should have undertaken.
    III. The court of appeals affirmed on a jury charge that was grossly
    incorrect by ignoring and then misapplying this Court’s
    precedent.
    The court of appeals’ opinion demonstrates an inconsistent application of
    this Court’s precedent that could lead to erroneous future decisions in an area of
    18
    21RRDX21.
    8
    law that is already confusing at best. Elizondo raised four19 different charge errors,
    which the court of appeals erroneously rejected without applying the proper
    preservation and harm standards. Ultimately, Elizondo’s conviction was affirmed on
    a jury charge that was an “impenetrable forest of legal ‘argle-bargle.’” 
    Reeves, 420 S.W.3d at 817
    .
    A.      The court of appeals erroneously refused to review two
    omissions from the charge, in conflict with this Court’s prior
    decisions
    Elizondo argued below that once the trial court undertook to charge the jury
    on the law of self-defense, it had the obligation to provide correct and complete
    instructions—the self-defense instructions should have included instructions on the
    law of multiple assailants and threats as justifiable force.
    The jury charge did not provide an instruction on section 9.04, regarding a
    threat of deadly force by production of a weapon. See TEX. PENAL CODE ANN. §
    9.04. This was certainly raised by the evidence. Elizondo stated he intended to grab
    his gun and his credentials and thought that if he displayed them, the men might
    19
    Elizondo also argued that provocation should not have been submitted to the jury.
    Again, the court of appeals failed to properly apply Smith v. State to the evidence and rejected
    Elizondo’s charge arguments based on its erroneous finding that Elizondo did not abandon the
    first encounter. Elizondo submits that if the court had properly analyzed Smith v. State, the jury
    charge should not have included a provocation instruction, and Elizondo respectfully requests the
    ability to fully brief this issue if review is granted.
    9
    stop.20 Reynolds v. State, 
    371 S.W.3d 511
    , 522 (Tex. App.—Houston [1st Dist.] 2012,
    no pet.).
    Additionally, the jury charge omitted any reference to the law of multiple
    assailants, instead instructing the jury with reference only to Limon, Sr.’s conduct.
    This Court, however, has held that when there are multiple assailants, a jury charge
    focusing on only one of those assailants is too restrictive. Frank v. State, 
    688 S.W.2d 863
    , 868 (Tex. Crim. App. 1985); Lerma v. State, 
    807 S.W.2d 599
    , 601 (Tex. App.—
    Houston [14th Dist.] 1991, pet. ref’d). There was certainly evidence in the record
    that multiple attackers were pursuing Elizondo.21 It was error for the trial court to
    limit its instructions to Elizondo’s beliefs as to the “person against [whom] deadly
    force was used.”22
    Elizondo argued below that Barrera v. State required treating the omission of
    the multiple assailants charge as “error” that the court could properly review under
    Almanza. In Barrera, this Court held that when a trial court undertakes to instruct a
    jury on a defense raised by the evidence, that defense becomes the law applicable to
    the case, and the trial court has a duty to state the law correctly. Barrera v. State, 
    982 S.W.2d 415
    , 416 (Tex. Crim. App. 1998). The Court held that where a self-defense
    instruction contains an error to which counsel did not object—in that case a
    20
    16RR200-201.
    21
    17RR19, 21.
    22
    2Supp.CR3.
    10
    complete omission of an application paragraph—the error is subject to review for
    egregious harm. 
    Id. at 417.
    This Court later clarified that it does not matter if the defensive instruction
    was initially requested by the defendant or sua sponte included by the judge—the
    judge bears sole responsibility for errors in the charge:
    However, if the trial judge does charge on a defensive issue
    (regardless of whether he does so sua sponte or upon a party’s request), but fails
    to do so correctly, this is charge error subject to review under Almanza.
    If there was an objection, reversal is required if the accused suffered
    “some harm” from the error. If no proper objection was made at trial, a
    reversal is required only if the error caused “egregious harm.”
    Vega v. State, 
    394 S.W.3d 514
    , 518-19 (Tex. Crim. App. 2013) (emphasis added).
    The court of appeals, however, refused to recognize this precedent and held that
    both the “threats as justifiable force” and “multiple assailants” issues were waived by
    defense counsel’s failure to request the instructions. Elizondo, 
    2014 WL 222834
    , at
    *10. The court erroneously refused to review these errors or apply a harm analysis.
    B.     The court of appeals erroneously failed to properly apply the
    appropriate harm analysis to the other charge errors
    Elizondo further pointed out two other errors in the jury charge, which the
    court of appeals held were reviewable but then failed to properly analyze under
    Almanza.
    11
    First, the presumption of reasonableness instruction was incomplete. The jury
    was instructed that a presumption of reasonableness would arise if the actor “knew
    or had reason to believe that the person against [whom] deadly force was used was
    committing or attempting to commit murder.”23 However, Texas Penal Code section
    9.32(b) provides that the presumption arises in two other situations raised by the
    evidence in this case, where the actor knew or had reason to believe an assailant “(A)
    unlawfully and with force entered, or was attempting to enter unlawfully and with
    force, the actor’s occupied habitation, vehicle, or place of business or employment;”
    and “(B) unlawfully and with force removed, or was attempting to remove unlawfully
    and with force, the actor from the actor’s habitation, vehicle, or place of business or
    employment.” TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B). Here, the evidence
    showed that Elizondo knew or had reason to believe that Junior either unlawfully
    and with force entered Elizondo’s vehicle or removed him from the vehicle, or was
    attempting to do so.24 Defense counsel did not object to this charge, and while the
    court of appeals agreed that the evidence “warranted the inclusion of these
    instructions,” it nevertheless found that the error was not egregiously harmful.
    Elizondo, 
    2014 WL 222834
    , at *9.
    23
    2Supp.CR3.
    24
    12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134; 15RR233; 16RR113,
    197; 21RRDX21.
    12
    Second, Elizondo argued that the provocation instruction changed the State’s
    burden of proof by erroneously telling the jury that if it found provocation, it must
    find Elizondo guilty of murder. 25 The jury received this 169-word, unintelligible
    instruction:
    So, in this case, if you find and believe from the evidence beyond
    a reasonable doubt that the defendant, Jose Guadalupe Rodriguez
    Elizondo, immediately before the difficultly, then and there did some
    act, or used some language, or did both, as the case may be, with the
    intent on his, the defendant’s, part to produce the occasion for killing
    the deceased, Fermin Limon, and to bring on the difficultly with the
    said deceased, and that such words and conduct on the defendant’s
    part, if there were such, were reasonably calculated to, and did, provoke
    the difficulty, and that on such account the deceased attacked
    defendant with deadly force, or reasonably appeared to defendant to so
    attack him or to be attempting to attack him, and that the defendant
    then killed the said Fermin Limon by use of deadly force, to wit, by
    shooting him with a firearm, in pursuance of his original design, if you
    find there was such design, then you will find the defendant guilty of
    murder.26
    The jury should not have been instructed that if it found provocation, it should find
    Elizondo guilty—rejection of self-defense does not require a finding of all the
    elements of murder. In fact, the jury was required to find all the elements of murder
    and reject self-defense in order to convict. Saxton v. State, 
    804 S.W.2d 910
    , 914 (Tex.
    Crim. App. 1991). While the court of appeals erroneously determined otherwise,
    25
    2Supp.CR6.
    26
    2Supp.CR5-6 (emphasis added).
    13
    defense counsel did not object to this error.27 The court found no harm, but it did
    so without evaluating the Almanza factors. Elizondo, 
    2014 WL 222834
    , at *9.
    In addressing these two charge errors, while paying lip service to the
    applicable standard of review, the court of appeals did not engage in any analysis at
    all. 
    Id. With respect
    to the presumptions of reasonableness, the court of appeals held
    that because the jury “could have found that Elizondo was not entitled to a self-
    defense argument because he provoked the initial difficulty and did not abandon the
    encounter, . . . these extra instructions would not have affected the outcome.” 
    Id. But just
    because the jury could have believed the State’s version of the evidence does
    not mean that it was not harmful to submit an incomplete version of Elizondo’s
    defense. Cornet v. State, 
    417 S.W.3d 446
    , 453 (Tex. Crim. App. 2013) (“We agree
    with appellant that a review for sufficiency of the evidence cannot substitute for a
    harm analysis.”).
    With respect to the erroneous provocation instruction, the court of appeals
    held that “from voir dire to closing arguments, the jury was repeatedly instructed
    that it was the State’s burden to prove that Elizondo committed murder.” Elizondo,
    
    2014 WL 222834
    , at *9. Those “repeated” instructions were completely undermined
    27
    See generally 17 RR.
    14
    by the instruction that if it rejected provocation, the jury must find Elizondo guilty
    of murder, yet the court of appeals did not address that argument.
    C.     The jury charge was a garbled mess, and a review of the
    complete charge and application of the proper harm analyses
    requires reversal.
    Considering the entire jury charge and all the harm factors, it becomes clear
    that Elizondo suffered the requisite degree of harm. As this Court recently
    explained,
    The trial judge must “distinctly set[ ] forth the law applicable to the
    case” in the jury charge. “It is not the function of the charge merely to
    avoid misleading or confusing the jury: it is the function of the charge
    to lead and to prevent confusion.” While generally, “in the absence of
    evidence to the contrary, we will assume that the jury followed its
    written instructions,” this presupposes that the instructions are
    understandable. Because these instructions were not, “this is not a case
    in which the reviewing court should apply the usual presumption that
    the jury understood and applied the court’s charge in the way it was
    written.”
    
    Reeves, 420 S.W.3d at 819
    . When the jury charge contains numerous errors,
    incomprehensible wording, and essentially robs the defendant of his only defense,
    the Court should be extraordinarily careful to analyze the harm, recalling that
    neither party has a burden on this issue—the burden of properly analyzing harm falls
    squarely on this Court. 
    Id. at 816,
    819.
    15
    Here, as in Reeves, the jury charge contained numerous errors and was
    incomplete. 28 Additionally, the state of the evidence mandates a finding of the
    requisite degree of harm. With respect to provocation and the presumption of
    reasonableness, the evidence was undisputed that Junior and two others pursued
    Elizondo to his vehicle, and Elizondo testified that Junior pulled him out of the
    vehicle.29 All the witnesses testified that, at the very least, Junior was beating on
    Elizondo’s car and trying to force him to come out. 30 But the jury was never
    instructed that, if it believed those facts, a presumption of reasonableness could
    arise.31 Instead, in order to raise the presumption, they were instructed that they had
    28
    The charge contained numerous confusing “converse” instructions, which tell the jury
    that “if the state met its burden, the juries should find against the defendants on the issue of self
    defense,” and which have been criticized by the Texas Pattern Jury Charge committee on Criminal
    Defenses:
    The Dallas court of appeals in 1999 appeared sympathetic to a defendant’s
    argument that a converse instruction of the second type is an ‘anachronism in
    Texas law’ that violates the spirit of the prohibition against comment on the
    evidence. Nevertheless, it held that it was bound to precedent establishing that the
    giving of such a converse instruction is not a basis for reversing a conviction. Aldana
    v. State, No. 05-98-00135-CR, 
    1999 WL 357355
    , at *6-7 (Tex. App.—Dallas June 4,
    1999, pet. ref’d) (not designated for publication) (relying on Powers v. State, 
    396 S.W.2d 389
    , 391-92 (Tex. Crim. App. 1965)). The Committee concluded that if
    jury instructions on self-defense are properly crafted, so-called converse instructions
    are neither necessary nor desirable. Thus the instruction at section B14.4 below
    does not include them.
    Tex. Pattern Jury Charges, Criminal Defenses, § B14.2.9.
    29
    12RR180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134, 233; 16RR113, 197, 201-
    203; 21RRDX21.
    30
    13RR149, 179; 14RR104-105; 15RR42, 80, 237; 16RR29.
    31
    2Supp.CR.3.
    16
    to find that Elizondo knew or had reason to believe that Limon was committing or
    attempting to commit “murder.”32 Compounding this problem was the lack of a
    multiple assailants instruction, which would have allowed the jury to consider
    Junior’s conduct, as well as the other two assailants.33 Instead, all of the language in
    the charge referred to Limon’s conduct alone.34 Under these circumstances, the jury
    charge failed to adequately protect Elizondo’s right to argue self-defense. See Brown v.
    State, 
    651 S.W.2d 782
    , 784 (Tex. Crim. App. 1983).
    Second, any evidence of guilt was not so overwhelming that the jury charge
    errors necessarily caused no harm to Elizondo. 
    Mendoza, 349 S.W.3d at 282
    . But
    nevertheless, the jury was not only instructed to disregard Elizondo’s self-defense if it
    found provocation, it was instructed to find Elizondo guilty of murder. Cf. 
    id. In other
    words, the jury charge implied not only that there was some evidence to support
    every element of provocation, but that there was some evidence to support every
    element of murder. Cf. 
    id. Furthermore, self-defense
    was the focus of the entire case. 35 Specifically,
    Elizondo’s defense centered on the following: (1) he abandoned the difficulty by
    32
    
    Id. 33 Id.
          34
    
    Id. 35 See
    17RR82.
    17
    running to his truck;36 (2) the club’s bouncers chased Elizondo to his truck yelling
    obscenities with the intent to continue an attack on Elizondo;37 (3) Junior then
    banged on Elizondo’s window to get him out of the truck;38 (4) Elizondo was pulled
    out of his truck, and then Limon. Sr. pointed a gun at him. 39 For example,
    provoking the difficulty was not a theory that was downplayed or ignored by the
    State—provocation was the State’s central argument. Specifically, the State argued
    during closing:
    This moment in time is pivotal, because he runs from what he
    says are five or six guys beating on him. That’s what he told Deputy
    Hector Garcia. This moment is pivotal, because this is where he said—
    or Trooper Champion said that he just got kicked in the head. He
    further says that at some point in time, he books it to his car, to his
    truck, and on the way, he is getting hit on the head (knocking).
    ....
    Somewhere along the way, while he’s running, he gets hit on the
    head. In his statement he says, at least twice. He needs you to believe
    that he’s being beaten (indicating).
    ....
    He gets to his truck, first thing he does is pull out a weapon.
    Now, his testimony is that he got into his truck and closed the door.
    Far different from what is in his statement. He grabs the gun—and he
    36
    17RR89.
    37
    17RR90-92.
    38
    17RR95-96.
    39
    17RR98.
    18
    decides to grab that gun—and at that point in time when he grabs that
    gun, another escalation. Things just got deadly, and all bets are off.
    Everybody’s life now is in danger.40
    Thus, the State did not distinguish between the two altercations, but was allowed to
    argue that the first altercation was the provocation that mattered. The self-defense
    instructions took up a significant part of the jury charge.41 
    Mendoza, 349 S.W.3d at 283
    . Furthermore, the state of the evidence shows egregious harm, given that
    Elizondo admitted to shooting Limon. See 
    id. CONCLUSION AND
    PRAYER
    This Court should grant review, request additional briefing, and render the
    judgment that the court of appeals should have rendered. The Court should reverse
    the judgment of the lower courts and render a judgment of acquittal or,
    alternatively, reverse and remand for further proceedings below.
    40
    17RR112-114.
    41
    See 2Supp.CR5-6.
    19
    Respectfully submitted,
    /s/ Brandy Wingate Voss
    Brandy Wingate Voss
    State Bar No. 24037046
    SMITH LAW GROUP, P.C.
    820 E. Hackberry Ave.
    McAllen, TX 78501
    (956) 683-6330
    (956) 225-0406 (fax)
    brandy@appealsplus.com
    Counsel for Appellant
    CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)
    This document complies with the typeface requirements of Tex. R. App. P.
    9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
    point for text and 12-point for footnotes. This document also complies with the
    word-count limitations of Tex. R. App. P. 9.4(i), because it contains 4,499 words,
    excluding the parts exempted by Rule 9.4.
    /s/ Brandy Wingate Voss
    Brandy Wingate Voss
    20
    CERTIFICATE OF SERVICE
    On March 11, 2015, in compliance with Texas Rule of Appellate Procedure
    9.5, I served a copy of this document upon all other parties to the trial court’s
    judgment and the respondent by first-class United States mail, return receipt
    requested, properly posted and deliverable as follows:
    Ted Hake
    Michael Morris
    Assistant District Attorney
    Appeals Section
    Office of Criminal District Attorney
    Hidalgo County, Texas
    100 N. Closner, Rm 303
    Edinburg, Texas 78539
    Fax: (956) 380-0407
    ted.hake@da.co.hidalgo.tx.us
    michael.morris@da.co.hidalgo.tx.us
    Lisa C. McMinn
    John R. Messinger
    State Prosecuting Attorney
    Office of State Prosecuting Attorney of Texas
    P. O. Box 13046
    Austin, Texas 78711-3046
    Fax: (512) 463-5724
    /s/ Brandy Wingate Voss
    Brandy Wingate Voss
    21
    APPENDIX
    22
    Elizondo v. State, Not Reported in S.W.3d (2014)
    admitted to finishing a six-pack of beer. Maria did not drink at
    that time. The three then decided to go to Punto 3, a nightclub
    
    2014 WL 222834
                                                                      in Mission, Texas. Punto 3 was owned by Fermin Limon, Sr.,
    Only the Westlaw citation is currently available.
    his wife Nora, his son Fermin Limon, Jr. (Junior), and his
    SEE TX R RAP RULE 47.2 FOR                              daughter Mireya. Elizondo and Maria went home to change
    DESIGNATION AND SIGNING OF OPINIONS.                          and then proceeded to the bar. Juan was picked up by a
    friend and arrived later. All of the parties were at the bar
    MEMORANDUM OPINION                                     by 12:45 a.m. At this point, the versions of what occurred
    Do not publish. Tex.R.App. P. 47.2(b).                      differ, therefore, we will summarize each relevant witness's
    Court of Appeals of Texas,                           testimony.
    Corpus Christi–Edinburg.
    Jose Guadalupe Rodriguez ELIZONDO, Appellant,                   A. Jose Elizondo
    v.                                        Elizondo, a customs agent employed by the United States
    The STATE of Texas, Appellee.                          Department of Homeland Security, testified that he arrived at
    the bar with his wife in his white Dodge pickup. He stated
    No. 13–12–00028–CR.           |    Jan. 16, 2014.          that, as a licensed peace officer for the State of Texas, he
    has an assigned pistol from U.S. Customs. This pistol was
    On appeal from the 398th District Court of Hidalgo County,
    in the console of his pickup truck, as well as his credentials
    Texas.
    identifying him as a federal agent. Elizondo explained that,
    Attorneys and Law Firms                                           under federal law, he is authorized to carry a weapon at all
    times. He left his pistol and credentials in the car when he and
    Brandy M. Wingate, for Jose Guadalupe Rodriguez Elizondo.         his wife entered the club.
    Rene A. Guerra, for The State of Texas.                           Elizondo testified that he had gone into the bar and then went
    outside, when he saw his wife Maria exit the bar looking
    Before Chief Justice VALDEZ and Justices BENAVIDES
    “teary-eyed,” “emotional,” and “in distress.” He asked her
    and LONGORIA.
    what was wrong and she said that someone pushed her “really
    ugly.” She pointed to the man who had allegedly pushed
    her, who turned out to be Junior. Elizondo asked Junior why
    MEMORANDUM OPINION                                 he had pushed his wife, and he said Junior was cocky and
    aggressive towards him. Elizondo claimed that he did not
    Memorandum Opinion by Justice BENAVIDES.
    know Junior worked at the bar because he was wearing a
    *1 Appellant, Jose Guadalupe Rodriguez Elizondo, was             different shirt than the other Punto 3 employees—he thought
    convicted of murder and sentenced to twenty-five years            Junior was just another customer. Elizondo called Junior a
    in prison at the Texas Department of Criminal Justice—            curse word in Spanish and Junior responded by pushing him.
    Institutional Division. By two issues, Elizondo argues that:      Elizondo pushed back. Then, Elizondo claimed that Rigo,
    (1) the evidence was legally insufficient to support the jury's   another security employee, punched Elizondo on the right
    rejection of his self-defense argument and (2) the jury charge    side of his face. Elizondo punched back, and then became
    was erroneous and harmful, requiring reversal. We affirm.         enthralled in a brawl with at least four nightclub employees.
    Elizondo believed that he could be killed if he fell to the
    ground, so as soon as he could, he ran to his truck. The
    distance from the bar to his truck was approximately seventy
    I. BACKGROUND
    yards. Elizondo testified that he could not believe it when
    The undisputed facts reveal that, on August 8, 2010, appellant    he realized his aggressors were following him. He stated that
    Elizondo, his brother Juan, and his wife Maria went to            he heard, “Stop, asshole,” and that the men tried to trip his
    a barbeque at Elizondo's mother house. At the barbeque,           boots, but he did not stop running. He ran past a fence to
    Elizondo, Juan, and Maria socialized. Elizondo testified that     his car. While running, he pulled out the control to his truck
    he drank approximately two beers, while his brother Juan          and unlocked his pickup. He testified that, at that time, he
    remembered he had his gun in the truck.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
    Elizondo v. State, Not Reported in S.W.3d (2014)
    brother's back and began fighting with him. At that point, he
    *2 As soon as he arrived at his pickup, Elizondo testified       heard his brother yell, “U.S. Customs” and “please put the
    that he got in, closed the door, and grabbed the gun from his     gun down.” Then he heard two gunshots.
    console. He wanted to grab his credentials, too, but he claimed
    that Junior reached in and pulled him out of his truck. After
    being pulled out, Elizondo claimed he started hitting Junior      C. Maria Elizondo
    to protect himself. Then, Elizondo's brother Juan arrived and     Maria Elizondo, Elizondo's wife, confirmed that her husband
    pulled Junior off of him. At that point, Elizondo then saw        and brother-in-law Juan had been drinking at their mother's
    a man approaching his vehicle with a gun. This person was         home prior to going to Punto 3. After she and her husband
    Limon. Elizondo testified that Limon pointed the gun at him       arrived at the Punto 3 nightclub, Juan handed her a margarita.
    and did not say anything. Elizondo claimed that he shouted to     Maria and her husband then danced two songs. After dancing,
    Limon, “U.S. Customs” and told him to “throw the gun” about       Maria talked to some friends while her husband went with
    two times. He claimed that Limon never lowered his gun.           his brother. When Maria saw her husband exiting the bar,
    Elizondo fired, claiming he had “no other choice” because he      she started to follow him out. She still had her drink in her
    was convinced Limon was going to shoot.                           hand. She testified that, as she approached the exit, a female
    employee working at the front entrance stated, “This stupid
    On cross-examination, the prosecution questioned Elizondo         lady doesn't want to leave her drink behind.” Maria went
    with the statement he gave to police the night of the shooting.   back and set her drink down at the bar, but stated that she
    Although Elizondo testified that he didn't remember he had        was offended by the woman's words. She testified that as she
    his gun in his console until he began running to his truck, his   was walking back towards the entrance, Junior arrived and
    statement provided that, “I ran towards my truck where I had      grabbed her. Maria testified that he told her, “I know women
    my duty issued H & K 40 Caliber handgun.” The prosecution         like you” and to “get out.” Then, according to Maria, Junior
    suggested that Elizondo ran to the truck specifically to          pushed her and took her outside. Junior then went back into
    retaliate against the security guards with his gun. Elizondo      the club.
    denied this assertion.
    *3 Maria, upset, began looking for her husband outside. She
    noticed Junior had returned outside laughing and she thought
    B. Juan Elizondo                                                  he was making fun of her. She found her husband, pointed
    Juan, appellant's brother, testified that when he arrived at      Junior out to him, and explained that Junior had pushed
    Punto 3 with his friend, Elizondo and his wife were already       her inside. Maria stated that Elizondo then asked Junior,
    there. Juan said hello to some friends. He then bought a beer     “Why were you pushing my wife?” A fight then ensued.
    for himself and his brother, and a mixed drink for his sister-    Maria claims that a security guard punched her husband
    in-law Maria. He stated that he saw a fight erupt between two     in the face, and that the men were yelling, grabbing, and
    women and that he tried to break up the fight, even though        pushing. She said she yelled at the Punto 3 security guards to
    his brother told him “not to get involved.” Juan was escorted     leave her husband alone. Then, she testified that her husband
    out of the building by Punto 3 security along with the two        started running towards his truck and that the security guards
    fighting women. After explaining the situation to Limon, Sr.,     followed him, yelling, “Stop asshole!” She also testified that
    whom he thought was the head of security or a manager, he         they were trying to trip him while he was running.
    was allowed back inside the club.
    Maria ran to her husband's truck, where all the men had
    As soon as Juan entered, though, he testified that he noticed     convened. She saw her husband pointing a gun saying,
    people running out. He heard a “commotion” and went               “Lower your weapon. Lower your weapon.” She did not hear
    outside again, because he did not see his brother inside the      him say that he was a U.S. Customs agent. Then, Maria heard
    club. He also thought he heard his sister-in-law Maria yelling.   her husband's gun fire.
    When he got outside, Juan saw Maria “crying” and “yelling.”
    Juan saw “at least three guys hitting” Elizondo when his
    brother started running to his pickup truck. Juan testified       D. Francisco Garcia
    that the three security guards followed his brother, so he        Francisco Garcia worked at Punto 3 as a general employee.
    ran after them, too. When he arrived at Elizondo's truck, he      His job responsibilities included setting up for the night,
    saw Elizondo and Junior struggling. He pulled Junior off his      cleaning, working at the door to check for weapons and proper
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
    Elizondo v. State, Not Reported in S.W.3d (2014)
    age identification, assisting with security, and performing        witnessed Elizondo “looking for something in the console.”
    tasks as required by the Limon family. He carried a                Junior “got to the truck and was hitting the window,” telling
    walkie-talkie and wore a microphone to be in constant              him to “Get off asshole.” He said that then Juan, Elizondo's
    communication with his employers throughout the night.             brother, grabbed Junior from behind. At that point, Elizondo
    got out and started hitting Junior with a gun on Junior's head
    Francisco testified that, at approximately 1:00 a.m. on August     and forehead. When Elizondo brandished his gun, though,
    9, 2013, he was summoned by intercom and through his               Rigo left running, thinking he was going to be killed. He
    walkie-talkie to report to the bar section because a fight         returned to the club and saw Limon, Sr. approaching the
    had broken out. He recalled that he, along with four other         truck with a gun. Rigo said that Limon, Sr. had a gun in
    security guards, escorted two men and two women who had            one hand and was making a gesture with the other hand
    been fighting to the nightclub's exit. He then returned to his     as though to calm Elizondo down. He heard Elizondo say,
    assigned watch area that night, the stage area. Seconds later,     “Get to the ground, son of a bitch. Get to the ground ...
    Francisco testified that he and all other security employees       you dog.” According to Rigo, before Limon, Sr. could
    were alerted by their walkie-talkies to report outside. Outside,   respond, Elizondo “instantly” fired his weapon. Rigo stated
    he noticed a group of people in a fight or “commotion.” He         that Elizondo never identified himself as a federal agent that
    witnessed the defendant Elizondo run to a white truck. He          worked for U.S. Customs. Rigo saw Limon, Sr. “walking,
    then witnessed some of his fellow employees follow Elizondo        like, if he was in pain like it hurt,” and then fall down.
    and then bang on the window of Elizondo's truck. According
    to Francisco, Elizondo then got out of his truck and hit Junior.
    He then heard a gunshot and someone yelled, “Run. There's          F. Fermin Limon, Junior
    a gun.” At that point, Francisco called 911, as he saw his         Junior worked for the family business as a bartender. He
    co-workers running from the truck back to the club. He then        testified that, on the night of the incident, his wife, who
    saw Limon, Sr. running alongside the fence towards the white       worked at the front counter, informed him that a woman was
    truck. At that point, he did not see Limon, Sr. carrying a         trying to leave Punto 3 with an alcoholic drink. This woman
    weapon. Once Limon, Sr. got closer to where his son, Junior,       was later identified as Maria, the defendant's wife. Junior
    and Elizondo were, he noticed that Limon, Sr. and Elizondo         claimed that he grabbed Maria's arm in an effort to stop her
    were pointing guns at each other. He heard Elizondo tell           from leaving the premises with her drink, as the club would
    Limon, Sr. to get on the ground, but Limon, Sr. did not.           be fined by the Texas Alcoholic Beverage Commission for
    Instead, he saw Limon, Sr. hold the gun with one hand and          allowing that. He escorted her to the door and returned to
    make gestures with his other hand as if to calm Elizondo           the bar. At that point, his mother asked him to go outside
    down. Francisco then heard more gunshots and saw Limon,            and check on his father, as his father had exited when some
    Sr. fall. At that time, Francisco placed his second call to 911.   patrons had been escorted outside.
    Junior saw his father talking to two men and Maria. Maria,
    E. Rodrigo Hernandez Carrion                                       according to Junior, was screaming, calling Junior “pendejo ”
    *4 Rodrigo Hernandez Carrion (Rigo) also worked at Punto          and a “dumb ass.” Her husband, Elizondo, also called Junior
    3 as a general employee. On the night of the incident, Rigo        a “pendejo.” Junior took offense to this, and his father Limon,
    testified that he was called by walkie-talkie to remove some       Sr. told Elizondo not to insult his son. Limon, Sr. pushed his
    women from the premises for fighting. Outside, he saw              son back because Elizondo was being “aggressive.” Junior
    Limon, Sr. and Junior talking to two men and a woman. He           testified that other employees, including Rigo and Francisco,
    said the woman (presumably Maria) was hysterical and being         were now near the commotion. Junior said that one man,
    disrespectful to Junior, calling him “idiot, stupid, sons of       either Elizondo or his brother Juan, then hit his father, Limon,
    bitches.” He heard Elizondo tell Junior, “Don't disrespect my      Sr. Junior was shocked at this. Next, according to him, Rigo
    woman you son of a bitch” and “Well, son of a bitch, are you       struck the man back with an open hand. After a skirmish,
    going to calm down or not?”                                        Elizondo began running, and the club employees followed
    him. Junior heard Elizondo say, “Van a ver ” 1 while running,
    Rigo then testified that fighting started when Elizondo swung      and Junior “got scared” because he felt it was “a threat.”
    at Limon, Sr. A brawl ensued. Rigo then witnessed Elizondo         Junior kept following Elizondo because of this threat.
    run to his truck, get in, and “close [ ] the door and lock[ ]
    it.” Rigo followed, along with his fellow employees. Rodrigo
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
    Elizondo v. State, Not Reported in S.W.3d (2014)
    *5 When Junior arrived at the truck, Elizondo was “inside           particular offense for which the defendant was tried.” 
    Id. A the
    truck ... searching around.” Junior began hitting the            hypothetically correct murder charge in this case would have
    driver's side window. While banging on the window, he felt           required the jury to find that Elizondo intentionally caused
    someone grab him from behind in a headlock. It was Juan,             the death of Limon by shooting him with his gun. See TEX.
    Elizondo's brother. Then, Junior felt punches from both men.         PENAL CODE ANN. § 19.02(b)(1) (West 2011).
    He heard a shot fired and then someone screamed that there
    was an “officer.” After the shot, the men let him go and he
    ran back to the club. He did not see his father until he crossed     B. Applicable Law
    the fence. When he saw Limon, Sr. “all bloody on the floor,”         With regard to Elizondo's self-defense argument, “a person
    he became hysterical.                                                is justified in using force against another when and to the
    degree the actor reasonably believes the force is immediately
    necessary to protect the actor against the other's use or
    attempted use of unlawful force.” See 
    id. § 9.31(a)
    (West
    II. LEGAL SUFFICIENCY                                2011). The actor's belief that the force was immediately
    necessary is presumed reasonable if the actor knew or had
    A. Standard of Review
    reason to believe that the person against whom the force was
    In conducting a legal sufficiency review, we view the
    used was attempting to commit a felony, like murder in this
    evidence in a light most favorable to the verdict and
    case. 
    Id. § 9.31
    (a)(1)(C).
    ask “whether any rational trier of fact could have
    found the essential elements of the crime beyond a
    *6 The person who is claiming self-defense cannot have
    reasonable doubt.” Garcia v. State, 
    367 S.W.3d 684
    , 686–87
    provoked the person against whom the force was used. 
    Id. (Tex.Crim.App.2012) (citing
    Jackson v. Virginia, 443 U.S.
    § 9.31(a)(2). The Texas Court of Criminal Appeals further
    307, 319 (1979)). The trier of fact, in this case the jury, is the
    elaborated on the doctrine of provocation in Smith v. State:
    sole judge of the credibility of witnesses and the weight, if
    any, to be given to their testimony. Id.; Brooks v. State, 323                    Provoking the difficulty, as the
    S.W.3d 893, 899 (Tex.Crim.App.2010) (plurality op.). “The                         doctrine of provocation is commonly
    reviewing court must give deference to the responsibility of                      referred to in our jurisprudence, is
    the trier of fact to fairly resolve conflict in testimony, to                     a concept in criminal law which
    weigh the evidence, and to draw reasonable inferences from                        acts as a limitation or total bar on
    basic facts to ultimate facts.” Hooper v. State, 
    214 S.W.3d 9
    ,                    a defendant's right to self-defense.
    13 (Tex.Crim.App.2007) (citing 
    Jackson, 443 U.S. at 318
    –                          The phrase “provoking the difficulty”
    19). In a sufficiency review, “circumstantial evidence is as                      is a legal term of art, and more
    probative as direct evidence in establishing the guilt of an                      accurately translates in modern usage
    actor, and circumstantial evidence alone can be sufficient                        to “provoked the attack.” The rule of
    to establish guilt.” 
    Id. “Each fact
    need not point directly                       law is that if the defendant provoked
    and independently to the guilty of the appellant, as long as                      another to make an attack on him, so
    the cumulative force of all the incriminating circumstances                       that the defendant would have a pretext
    is sufficient to support the conviction.” 
    Id. If the
    record                       for killing the other under the guise of
    supports conflicting inferences, we presume that the fact                         self-defense, the defendant forfeits his
    finder resolved the conflict in favor of the verdict. Garcia,                     right of 
    self-defense. 367 S.W.3d at 687
    ; 
    Brooks, 323 S.W.3d at 899
    .
    
    965 S.W.2d 509
    , 512 (Tex.Crim.App.1998). The use of force
    We measure the sufficiency of the evidence supporting a              against another is not justified if the actor provoked the
    conviction “by the elements of the offense as defined by             other's use or attempted use of unlawful force, unless the actor
    the hypothetically correct jury charge for the case.” Malik          abandons the encounter and the other nevertheless continues
    v. State, 
    953 S.W.2d 234
    , 240 (Tex.Crim.App.1997). “Such             or attempts to use unlawful force against the actor. TEX.
    a charge would be one that accurately sets out the law, is           PENAL CODE ANN. § 9.31(b)(4).
    authorized by the indictment, does not unnecessarily increase
    the State's burden of proof or unnecessarily restrict the
    State's theories of liability, and adequately describes the          C. Discussion
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
    Elizondo v. State, Not Reported in S.W.3d (2014)
    By his first issue, Elizondo complains that the evidence was        necessary for reversal depends on whether the appellant
    legally insufficient to support the jury's rejection of his self-   preserved the error by objection. 
    Ngo, 175 S.W.3d at 743
    .
    defense argument. We disagree. A reasonable jury could have         If the defendant properly objected to the erroneous jury
    believed that Elizondo provoked the fight, which made the           charge, reversal is required if we find “some harm” to the
    self-defense argument unavailable. See Smith, 965 S.W.2d at         defendant's rights. 
    Id. (citing Almanza,
    686 S.W.2d at 171).
    512. Rigo testified that Elizondo told Junior, “Don't disrespect    If no objection was made, we may only reverse if the record
    my woman, you son of a bitch” and “Well, son of a bitch,            shows egregious harm. 
    Id. at 743–44.
    “Errors that result in
    are you going to calm down or not?” Junior stated that              egregious harm are those that affect ‘the very basis of the
    Elizondo called him “pendejo ” or “dumbass.” Then, both             case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally
    Rigo and Junior testified that Elizondo swung, hitting Limon,       affect a defensive theory.’ “ Cueva v. State, 
    339 S.W.3d 839
    ,
    Sr. Viewing the evidence in the light most favorable to the         858–59 (Tex.App.-Corpus Christi 2011, pet. ref'd).
    verdict, we hold that a reasonable jury could have rejected
    Elizondo's self-defense argument because they believed that
    he provoked the initial difficulty. See 
    id. B. Discussion
                                                                        Elizondo argues that the jury charge on self defense was
    Elizondo argues, however, that even assuming he provoked            erroneous because it: (1) included a provocation instruction
    the initial difficulty, he abandoned this first encounter near      over Elizondo's objection; (2) did not include all of the
    the bar by running to his pickup truck. This abandonment            presumptions of reasonable force as provided by section 9.32
    would thus make him eligible for the self-defense affirmative       of the penal code; (3) improperly stated the provocation
    defense. See TEX. PENAL CODE ANN. § 9.31(b)(4)                      instruction; (4) failed to include an instruction on “threats as
    (providing that self-defense is available to a defendant who        justifiable force”; and (5) failed to include any reference to
    leaves the altercation but is still pursued). However, we           multiple assailants. We address each point in turn.
    conclude that a reasonable jury could have found otherwise.
    Junior testified that when Elizondo left the first difficulty and
    1. Provocation Instruction
    ran to his pickup truck, he was yelling, “Van a ver,” roughly
    Elizondo asserts that the trial court committed error when
    translated as “You will see.” Junior was frightened by that
    it included a provocation instruction to the jury over his
    statement and believed it constituted a threat to him and his
    objection. In Matthews v. State, the Texas Court of Criminal
    co-workers. Further, the jury had Elizondo's police statement
    Appeals held that a provocation charge is proper when:
    wherein he admitted that he “ran towards [his] truck where
    (1) self defense is an issue; (2) there are facts in evidence
    [he] had [his] duty issued H & K 40 Caliber handgun.” This
    which show that the deceased made the first attack on the
    evidence supports the jury's implied finding that Elizondo
    defendant; and (3) the defendant did some act or used some
    was running to his truck for his firearm, not to abandon or
    words intended to and calculated to bring on the difficulty
    discontinue the fight.
    in order to have a pretext for inflicting injury upon the
    deceased. 
    708 S.W.2d 835
    , 837–38 (Tex.Crim.App.1986).
    *7 We overrule Elizondo's first issue.
    The determination to include the instruction “is limited to
    whether there is any evidence raising the issue.” 
    Id. at 838.
                                                                        “Words alone may provoke the difficulty, thereby justifying
    III. JURY CHARGE ERROR                               a provocation charge.” 
    Id. (citing Morrison
    v. State, 
    256 S.W.2d 410
    (Tex.Crim.App.1953)).
    In his second issue, Elizondo contends that the jury charge
    contained error.                                                    Here, there was some evidence to show that Elizondo
    provoked the fight. Rigo testified that Elizondo told Junior,
    “Don't disrespect my woman, you son of a bitch” and “Well,
    A. Standard of Review
    son of a bitch, are you going to calm down or not?” Junior
    In analyzing a jury charge issue, or initial inquiry is
    stated that Elizondo called him a “pendejo ” or “dumbass.”
    whether error exists in the charge submitted to the jury.
    Then, both Rigo and Junior testified that Elizondo swung,
    Ngo v. State, 
    175 S.W.3d 738
    , 743 (Tex.Crim.App.2005)
    hitting Limon, Sr. These words and actions constituted
    (en banc); Almanza v. State, 
    686 S.W.2d 157
    , 171
    “some” evidence that Elizondo provoked the first difficulty.
    (Tex.Crim.App.1985). If error is found, the degree of harm
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
    Elizondo v. State, Not Reported in S.W.3d (2014)
    *8 As noted earlier, however, the provocation doctrine           provided by section 9.32 of the penal code. TEX. PENAL
    is limited if the defendant abandoned the difficulty. See         CODE ANN. § 9.32. The jury charge only provided that
    
    Smith, 965 S.W.2d at 513
    n. 1 (citing TEX. PENAL CODE             a presumption of reasonableness would arise if Elizondo
    ANN. § 9.31(b)(4)). Elizondo argues he “abandoned” the            “knew or had reason to believe that the person against
    encounter by running from the difficulty outside the bar to       [whom] deadly force was used was committing or attempting
    his pickup truck, nearly seventy yards away. Therefore, he        to commit murder.” 
    Id. § 9.32(b)(1)(C).
    Elizondo argues
    contends that the provocation instruction was improper. To        that two additional scenarios should have been added to
    achieve the abandonment caveat to the provocation doctrine,       the charge. First, where the actor knew or had reason to
    though, it is “necessary that the intention to abandon the        believe an assailant “unlawfully and with force entered,
    difficulty be, in some manner, communicated by the appellant      or was attempting to enter unlawfully and with force, the
    so as ‘to advise his adversary that his danger has passed,        actor's occupied habitation, vehicle, or place of business
    and make his conduct thereafter the pursuit of vengeance          or employment.” 
    Id. § 9.32(b)(1)(A).
    And second, where
    rather than measures to repel the original assault.’ “ Ervin      the actor “(B) unlawfully and with force removed, or was
    v. State, 
    367 S.W.2d 680
    , 684 (Tex.Crim.App.1963); see            attempting to remove unlawfully and with force, the actor
    also TEX. PENAL CODE ANN. § 9.31(b)(4) (providing                 from the actor's habitation, vehicle, or place of business or
    that abandonment must be “clearly communicated”). Further,        employment.” 
    Id. § 9.32(b)(1)(B).
    “the abandonment of the difficulty by the defendant does not
    arise where the difficulty was continuous, the only change         *9 Elizondo complains that he knew or had reason to
    being in the position of the parties during the progress of the   believe that Junior unlawfully and with force pulled him out
    encounter.” 
    Ervin, 367 S.W.2d at 683
    –84 (citing Campbell v.       of his pickup truck, or was attempting to do so. He stated
    State, 
    84 Tex. Crim. 89
    , 91, 
    206 S.W. 348
    (1918)).                 that Junior's banging on Elizondo's driver's side window
    yelling “Get off asshole” meant that he was entitled to those
    While it is undisputed by all of the witnesses that Elizondo      instructions.
    ran nearly seventy yards away from the first difficulty, Junior
    testified that Elizondo was yelling, “Van a ver,” roughly         We agree that the evidence in the record warranted the
    translated as “You will see,” while running. Junior testified     inclusion of these instructions. Accordingly, we hold that
    that he believed that Elizondo's words constituted a threat to    the trial court erred by omitting them. Having found error,
    the others, which made Junior scared. These words did not         though, we do not find any egregious harm. 2 Ngo, 175
    communicate to Junior that the danger had passed. See 
    id. at S.W.3d
    at 743–44. Because we previously concluded that
    684. Further, the jury was presented with Elizondo's statement    a reasonable jury could have found that Elizondo was not
    to the police which provided that he “ran towards [his] truck     entitled to a self-defense argument because he provoked
    where [he] had [his] duty issued H & K 40 Caliber handgun.”       the initial difficulty and did not abandon the encounter, see
    This evidence supports a rational inference that Elizondo was     section 
    III(B)(1) supra
    , these extra instructions would not
    running to his truck for a weapon, not to escape the fight.       have affected the outcome. See TEX.R.APP. P. 44.2. We
    See 
    id. at 683–84
    (providing that one does not abandon a          overrule this issue.
    difficulty by merely changing positions). Accordingly, we
    find that a reasonable jury could have surmised that Elizondo
    did not abandon the first encounter, and that the provocation     3. Improper Provocation Instruction
    instruction was therefore merited.                                Elizondo also argued that the provocation instruction changed
    the State's burden of proof by instructing the jury to find
    We conclude that the trial court did not err when it submitted    Elizondo guilty of murder if he provoked the difficulty. The
    the provocation instruction to the jury because there was         charge provided as follows:
    sufficient evidence to raise this issue. 
    Matthews, 708 S.W.2d at 838
    . Because we have found no error, no harm analysis is                   So, in this case, if you find and
    required. 
    Ngo, 175 S.W.3d at 743
    . We overrule this issue.                     believe from the evidence beyond a
    reasonable doubt that the defendant,
    Jose Guadalupe Rodriguez Elizondo,
    2. Presumptions of Reasonable Force                                           immediately before the difficulty, then
    Elizondo also argues that the trial court erred when it failed                and there did some act, or used
    to include all of the presumptions of reasonable force as                     some language, or did both, as the
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          6
    Elizondo v. State, Not Reported in S.W.3d (2014)
    case may be, with the intent on                                    bodily injury by the production of a
    his, the defendant's part to produce                               weapon or otherwise, as long as the
    the occasion for killing the deceased,                             actor's purpose is limited to creating an
    Fermin Limon, and to bring on the                                  apprehension that he will use deadly
    difficulty with the said deceased, and                             force if necessary, does not constitute
    that such words and conduct on the                                 the use of deadly force.
    defendant's part, if there were such,
    were reasonably calculated to, and did,               TEX. PENAL CODE ANN. § 9.04. It is undisputed, however,
    provoke the difficulty, and that on                   that Elizondo did not request this instruction. In Posey v.
    such account the deceased attacked                    State, the Texas Court of Criminal Appeals held as follows:
    the defendant with deadly force, or
    Article 36.14 [of the Texas Code of
    reasonably appeared to defendant to
    Criminal Procedure] ... mandates that
    so attack him or to be attempting to
    a trial court submit a charge setting
    attack him, and that the defendant then
    forth the law “applicable to the case.”
    killed the said Fermin Limon by use
    The question in this case is whether
    of deadly force, to wit, by shooting
    this imposes a duty on trial courts
    him with a firearm, in pursuance of
    to sua sponte instruct the jury on
    his original design, if you find there
    unrequested defensive issues. We hold
    was such design, then you will find the
    Article 36.14 imposes no such duty.
    defendant guilty of murder.
    
    966 S.W.2d 57
    , 62 (Tex.Crim.App.1998). “Though the
    (Emphasis added). At trial, Elizondo argued that “the jury
    evidence might raise a defensive issue, it does not necessarily
    should have been instructed, however, that if it found
    follow that a trial court has a duty to sua sponte instruct the
    provocation, it should reject self-defense.” We agree and hold
    jury on that issue when the defendant does not request such
    that this instruction was erroneous.
    an instruction.” 
    Id. Elizondo failed
    to make this request, so
    we overrule this issue.
    Having found error, we turn to a harm analysis. 
    Almanza, 686 S.W.2d at 171
    . To determine if Elizondo suffered some
    harm by this incorrect instruction, we consider “the entire        5. Failure to Include a Multiple Assailant Instruction
    jury charge, the state of the evidence, including the contested    Finally, Elizondo asserts that the trial court erred when it
    issues and weight of probative evidence, the argument of           failed to include a multiple assailant instruction in the jury
    counsel and any other relevant information revealed by the         charge. The Texas Court of Criminal Appeals “has held that
    record of the trial as a whole.” 
    Id. Upon a
    thorough review        a charge which is confined only to the right of self-defense
    of the trial record and jury charge, though, we find no harm.      against the deceased is too restrictive if there is evidence that
    From voir dire to closing arguments, the jury was repeatedly       more than one person attacked the defendant.” Frank v. State,
    instructed that it was the State's burden to prove that Elizondo   
    688 S.W.2d 863
    , 868 (Tex.Crim.App.1985) (citing Sanders v.
    committed murder. The jury charge reinforced this tenet. In        State, 
    632 S.W.2d 346
    (Tex.Crim.App.1982)). “Accordingly,
    light of the foregoing, we hold that the error was harmless and    a defendant is entitled to a charge on the right of self-defense
    overrule this issue.                                               against multiple assailants if there is evidence, viewed from
    the accused's standpoint, that he was in danger of an unlawful
    attack or a threatened attack at the hands of more than one
    4. Instruction on “Threats as Justifiable Force”
    assailant.” 
    Id. (internal quotations
    omitted).
    *10 Elizondo also argues that it was error to fail to include
    an instruction on “threats as justifiable force.” Texas Penal
    Again, however, Elizondo did not ask for this instruction.
    Code section 9.04 provides that:
    Although the evidence at trial raised this issue, with various
    the threat of force is justified when                 witnesses testifying that Elizondo and his brother Juan fought
    the use of force is justified by this                 with at least three Punto 3 employees, the trial court did
    chapter. For purposes of this section,                not have a sua sponte duty to include a multiple assailant
    a threat to cause death or serious
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
    Elizondo v. State, Not Reported in S.W.3d (2014)
    Having overruled all of Elizondo's issues, we affirm the trial
    instruction when it was not requested. See Posey, 966 S.W.2d
    court's judgment.
    at 62. We overrule this issue.
    IV. CONCLUSION
    Footnotes
    1      Literal translation: “you all will see.”
    2      Elizondo's counsel failed to object to the omissions in this instruction.
    End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.
    © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   8