Feliciano Flores Avalos Jr. v. State ( 2021 )

NUMBER 13-19-00359-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
FELICIANO FLORES AVALOS JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 370th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva
Memorandum Opinion by Chief Justice Contreras
Appellant Feliciano Flores Avalos Jr. appeals his conviction for murder, a first-
degree felony. See TEX. PENAL CODE ANN. § 19.02(b)(2). By three issues, Avalos argues
(1) there is legally and factually insufficient evidence supporting the jury’s rejection of his
self-defense claim, (2) he received ineffective assistance of counsel, and (3) “cumulative
errors made by trial counsel and the trial court denied . . . his right to a fair trial.” We affirm.
I. BACKGROUND
Julio Villarreal lived four houses down the street from Avalos’s house in Pharr,
Texas. On April 22, 2018, Avalos stabbed and fatally wounded Villarreal. In July 2018,
Avalos was indicted for Villarreal’s murder. He pleaded not guilty and expressed to the
trial court his desire to represent himself at trial. The trial court reluctantly agreed and
appointed counsel to assist him. 1
At trial, the State introduced videos of the altercation between Avalos and Villarreal
that resulted in Villarreal’s death. The videos were captured by the home security
cameras of two other neighbors. In one of the videos, Avalos can be seen pulling into his
driveway and, shortly after, he is standing in front of his house gesturing aggressively in
the direction of Villarreal. Avalos then goes inside the house and returns a few minutes
later and walks into the street in front of his house, holds a knife in the air in the direction
of Villarreal, and flips the blade open. Avalos closes the knife, puts it in his pocket, and
walks around in his yard while gesturing again in the direction of Villarreal with his hands
and arms. Avalos then appears to see Villarreal running towards him, stands in a fighting
position with his hands down near his legs, and pulls the knife out again but waits for
Villarreal to attack him. Villarreal kicks Avalos in the stomach and knocks him down to the
ground. While Avalos is on the ground, Villarreal kicks him again, and after Villarreal
makes impact with Avalos’s leg, Avalos swings forward with the knife and slashes across
Villarreal’s right thigh, severing Villarreal’s femoral artery. After the scuffle continues for a
few seconds, Villarreal retreats to his home, where he died as a result of the injury.
1 Where a defendant insists on self-representation, a trial court may appoint counsel to be available
to assist him or her. Faretta v. California, 422 U.S. 806, 834 n.46 (1975); Rodriguez v. State, 763 S.W.2d
893, 896 (Tex. App.—San Antonio 1988, pet. ref’d).
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The State also presented testimony from multiple neighbors. Edward Pena lived
“four to six houses” down the street from Avalos. He explained Avalos would listen to
music so loud that he could hear it at his house and that he would stand in his front lawn,
drink alcohol, and sing along to the music. Pena provided a video recorded six months
prior to the murder in which Avalos says “we thrive on the murder.”
Norma De La Cruz lived two houses down from Avalos. De La Cruz testified she
went outside shortly after the altercation between Avalos and Villarreal and noticed “a lot”
of blood in the street. Avalos then yelled at De La Cruz, “Do you want to die too, bitch?”
According to De La Cruz, Villarreal was “very quiet.”
Veronica Reyes lived next door to Avalos, and her surveillance system captured
the video of the altercation. She explained the surveillance system was installed because
of Avalos, and that Avalos threatened both Reyes and her husband. Reyes recounted an
event in 2016:
Avalos came—he got all the way to my driveway with—with a bottle in his
hand, his arm raised. He got in front of me, and he broke the bottle in front
of my feet. He saw that the police officers were coming. He kicked the—the
truck, and walked away. And he starts yelling at me—He starts yelling at
me that the life of my son belongs to him.
Reyes also recounted an event from 2018:
[State]: What do you remember happening that day?
[Reyes]: That afternoon, my husband was getting home from work, and
[Avalos] started agitating him, wanting to start a fight with him.
He would say vulgarities. I told my husband not to fall for his
provoking. I didn’t let him get into an argument.
[State]: Was your husband the only person involved that day?
[Reyes]: Orlando was outside, and Ms. Norma.
[State]: And what do you remember [Avalos] telling you and Ms.
Norma?
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[Reyes]: That he was gonna kill us.
[State]: Okay. So this isn’t—This video [with Villarreal] isn’t the first
time you’ve seen [Avalos] trying to entice a fight; is it?
[Reyes]: Correct.
Alma Alejandro lived behind Avalos. Alejandro explained that, in September 2017,
Avalos kicked her backyard fence in and stated to Alejandro: “Hey, bitch. I’m gonna kill
you. Duck down. I’m gonna shoot you. I’m gonna kill you.” Avalos was holding an object
in his hand and threatened her with it.
Orlando Mendiola lived across the street from Villarreal. He explained he had “a
lot” of incidents with Avalos and that Avalos was “confrontational” and would use
profanity. Mendiola recounted that, in August 2016, Avalos was “yelling at me, and telling
me he was gonna kill me.” Mendiola explained Avalos tried to entice him to fight “multiple
times” “on his property[,] and, sometimes, walking out into the roadway.” Mendiola
admitted he reacted to Avalos’s instigations one time:
[State]: Okay. What were the reactions. What happened?
[Mendiola]: That one time, in particular, where I remember—I did go over
to him, and told him that if he wanted to fight, for him to step
out into the street.
[State]: Okay. And why were you doing that? What was he saying?
[Mendiola]: I was—I was tired of him.
[State]: Okay. And what was he trying to get you to do?
[Mendiola]: Trying to step into his yard.
[State]: Okay. And why do you think he was doing that?
[Mendiola]: So he could claim self-defense, pretty much, when the police
probably would be called out there.
[State]: Okay. So, I mean, was this the very first time he’d ever tried
to get you to come to him?
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[Mendiola]: That one instance—yes. I believe that’s the first time.
[State]: Okay. Was there another one, in the exact same month,
where the exact same thing happened?
[Mendiola]: Yes.
[State]: Okay. Same situation?
[Mendiola]: Yes.
[State]: What were you typically doing, in your household, when all
these altercations start?
[Mendiola]: Either in the garage, or out watering the lawn.
[State]: Now, are you ever saying anything to Avalos? Are you
responding to him? How does it always get to the point of him
wanting to fight you?
[Mendiola]: Just him seeing me.
[State]: Okay. If you can, go ahead and describe what he was doing
or what he was saying to try to get you to come over?
[Mendiola]: He’d ask me to go over there and fight him because—You
know, if I wasn’t a pussy—for me to go out there.
[State]: Okay. Was that the only bad word he would call you, or would
he use other words?
[Mendiola]: Oh, a lot of bad words. I could name you a list of them.
[State]: Okay. So these are all things that he would do and he would
say to get you to come over there and fight him?
[Mendiola]: He would call me a motherfucker. He would call me a
cocksucker. He would tell me that I—I was a faggot. You
know, saying that he was gonna fuck my wife. You know, a lot
of things to try to entice me to respond to him.
[State]: But he never actually came to your property; right?
[Mendiola]: No.
[State]: No. He would always just kind of stop in the road?
[Mendiola]: Yes.
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...
[State]: Yeah. Did he ever—Did he ever use any weapons to gesture
to you, to try to get you to come over?
[Mendiola]: Broken bottles, knives—mostly knives.
[State]: Okay. Well let’s talk about the knives. Do you remember
having an incident in January of 2017?
[Mendiola]: January? Yes.
[State]: Okay. And what was he doing with a knife?
[Mendiola]: He was waving, telling me he was gonna kill me.
Mendiola recounted another instance when Avalos was “waving a knife, telling me that
was gonna kill me and [Reyes’s husband].” Footage from Mendiola’s home security
system was also introduced into evidence.
The jury found Avalos guilty of the offense and assessed punishment at life
imprisonment in the Texas Department of Criminal Justice Institutional Division. This
appeal followed.
II. SUFFICIENCY
By his first issue, Avalos argues the evidence is legally insufficient to support the
jury’s implied rejection of his self-defense claim. 2 Avalos does not challenge the
sufficiency of the evidence to support the jury’s finding of the essential elements of murder
beyond a reasonable doubt.
2 Avalos’s first issue states that the evidence was legally and factually insufficient to support a
finding of guilty for murder. Specifically, Avalos argues the jury erred in rejecting his claim of self-defense.
We construe this as a challenge to the sufficiency of the evidence underlying the jury’s implied rejection of
Avalos’s self-defense claim.
Furthermore, Avalos urges us to employ a factual sufficiency review of the jury’s rejection of his
self-defense claim. However, the Texas Court of Criminal Appeals has abrogated factual-sufficiency review
in criminal cases. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We
follow the precedent of the Texas Court of Criminal Appeals, and reject Avalos’s claim to review the factual
sufficiency of the evidence. See id.; Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v.
State, 804 S.W.2d at 913–14 (Tex. Crim. App. 1991).
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A. Standard of Review
We review the sufficiency of the evidence issue under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010) (plurality op.); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Legal sufficiency is measured according to a hypothetically
correct jury charge. See Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).
“Such a charge is one that accurately sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theory of liability, and adequately describes the particular offense for which the
defendant was tried.” Id.In our review, we view the evidence in the light most favorable to the verdict to
determine whether any rational finder of fact could have found (1) the essential elements
of the offense beyond a reasonable doubt, and (2) against appellant on the self-defense
issue beyond a reasonable doubt. See Brooks, 323 S.W.3d at 895; Saxton, 804 S.W.2d
at 914; Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d); see also Obregon v. State, No. 13-11-00185-CR, 2013 WL 4769381, at *2
(Tex. App.—Corpus Christi–Edinburg 2013, no pet.) (mem. op., not designated for
publication). We defer to the trier of fact to fairly resolve conflicts in testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at318–19). When the record contains conflicting inferences, we presume that the trier of
fact resolved any such conflicts in favor of the prosecution, and we must defer to that
resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (citing Jackson,
443 U.S. at 326); see Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991)
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(noting that the jury “can choose to believe all, some, or none of the testimony presented
by the parties”).
B. Applicable Law
The defense of self-defense provides that “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 “reasonable belief” is defined as one
that would be held by “an ordinary and prudent man in the same circumstances as the
actor.” Id. § 1.07(a)(12).
However, self-defense is not available to a defendant if the defendant provoked
another individual’s use of unlawful force, unless: (1) the defendant abandoned the
encounter, or clearly communicated to the other his intent to do so reasonably believing
he could not safely abandon the encounter; and (2) the other nevertheless continues or
attempts to use unlawful force against the defendant. Id. § 9.31(b)(4); see Elizondo v.
State, 487 S.W.3d 185, 196 (Tex. Crim. App. 2016) (“The rule of law is that if the
defendant provoked another to make an attack on him, so that the defendant would have
a pretext for killing the other under the guise of self-defense, the defendant forfeits his
right of self-defense.”). A charge on provocation is required when there is evidence that:
(1) the defendant did some act or used some words which provoked the attack on him;
(2) such act or words were reasonably calculated to provoke the attack; and (3) 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. Smith v. State, 965 S.W.2d 509,
513 (Tex. Crim. App. 1998).
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On a self-defense claim, the defendant bears the burden of production and must
bring forth some evidence to support the particular defense. Zuliani v. State, 97 S.W.3d
589, 594 (Tex. Crim. App. 2003). Once the defense is raised, the State bears the burden
of persuasion to disprove the defense; however, such a burden requires only that the
State prove its case beyond a reasonable doubt. Id. The State is not required to produce
additional evidence rebutting self-defense. Id. The issue of self-defense is a fact issue the
jury determines, and the jury is free to accept or reject any defensive evidence on the
issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). When a jury finds
the defendant guilty, there is an implicit finding against the defensive theory. Zuliani, 97
S.W.3d at 594; see Saxton, 804 S.W.2d at 914.
C. Analysis
Here, a hypothetically correct jury charge would instruct the jury that Avalos
forfeited his right to self-defense if: (1) Avalos did some act or used some words that
provoked the attack; (2) such acts or words were reasonably calculated to provoke the
attack; and (3) the act was done, or the words were used, for the purpose and with the
intent that Avalos would have a pretext for inflicting harm upon Villarreal. See Elizondo,
487 S.W.3d at 196; Smith, 965 S.W.2d at 513; Pham v. State, 595 S.W.3d 769, 770 (Tex.
App.—Houston [14th Dist.] 2019, pet. granted).
As detailed above, Reyes’s home security system captured the altercation from
start to finish, and the video shows Avalos gesturing towards Villarreal with his hands in
the air in what appears to be an aggressive manner and urging him to come over. Reyes
and Mendiola both testified that Avalos attempted to incite fights. Mendiola testified about
the way Avalos sought to incite fights with him by staying on his property and trying to get
Mendiola to come over to him so that Avalos could claim self-defense, which is what
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Avalos can be seen doing in the video when gesturing at times with his hands towards
Villarreal. Avalos’s behavior in the videos is strikingly similar to the description of his prior
threats of death to neighbors. From this evidence, a rational jury could infer that Avalos
sought out Villarreal with the intention of provoking Villarreal to attack him on his property
so that he could have a pretext for inflicting harm upon Villarreal. See Engel v. State, No.
11-18-00225-CR, __ S.W.3d __, __, 2020 WL 5491100, at *5–6 (Tex. App.—Eastland
Sept. 1, 2020, no pet.); Pham, 595 S.W.3d at 779–80; Rodriguez v. State, 546 S.W.3d
843, 857–58 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
Viewing the evidence in the light most favorable to the verdict, we conclude the
evidence was legally sufficient to support the jury’s rejection of Avalos’s self-defense
claim. See Brooks, 323 S.W.3d at 895; See Elizondo, 487 S.W.3d at 196; Pham, 595
S.W.3d at 779–80.
We overrule Avalos’s first issue.
III. INEFFECTIVE ASSISTANCE
By his second issue, Avalos argues he received ineffective assistance of counsel.
Specifically, Avalos argues that his “self-representation at trial amounts to ineffective
assistance of counsel as per the prevailing legal standard.” We disagree.
A defendant in a criminal prosecution has a Sixth Amendment right to the effective
assistance of counsel. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing
U.S. CONST. amend. VI; TEX. CONST. art. I, § 10). However, a pro se defendant may not
allege his own ineffectiveness. Perez v. State, 261 S.W.3d 760, 768 (Tex. App.—Houston
[14th Dist.] 2008, pet. ref’d); Rodriguez v. State, 763 S.W.2d 893, 896 (Tex. App.—San
Antonio 1988, pet. ref'd); see Faretta v. California, 422 U.S. 806, 834 & n.46 (1975).
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Here, Avalos argues that “his own representation amounts to ineffective assistance
because he permitting [sic] the State to introduce prejudicial and non-probative evidence
during its case in chief.” Because Avalos voluntarily chose to represent himself, he cannot
argue he received ineffective assistance of counsel. See Faretta, 422 U.S. at 834 & n.46;
Perez, 261 S.W.3d at 768.
We overrule Avalos’s second issue.
IV. “CUMULATIVE ERRORS”
By his third issue, Avalos argues that “the aggregate effect of the cumulative errors
by the trial court and the ineffective assistance, argued supra, adversely affected his
sacred right to a fair and impartial trial.” We have already rejected Avalos’s ineffective
assistance argument, and apart from the sentence just quoted, Avalos does not identify
the alleged errors by the trial court he claims were harmful. Thus, to the extent Avalos
complains of other errors by the trial court, we conclude that such an argument has been
waived. See TEX. R. APP. P. 38.1(i).
We overrule Avalos’s third issue.
V. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
25th day of February, 2021.
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