                                 MEMORANDUM OPINION
                              Nos. 04-11-00366-CR & 04-11-00367-CR

                                         Juan A. CAVAZOS,
                                              Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                        Trial Court Nos. 2010-CR-3069A & 2010-CR-3070A
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 14, 2012

AFFIRMED

           Juan A. Cavazos was charged in separate indictments with the murder of Rodolfo Davila

and the aggravated assault of Edmundo Zambrano. The cases were tried together and a jury

found Cavazos guilty on both counts. The trial court sentenced him to life in prison. Cavazos

appeals the judgments, arguing the trial court erred when it refused to include an instruction on

self-defense in the jury charge. We affirm the trial court’s judgments.
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       “A defendant is entitled to an instruction on self-defense if the issue is raised by the

evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless

of what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d

586, 591 (Tex. Crim. App. 2001). “Raised by the evidence” means “there is some evidence,

from any source, on each element of the defense that, if believed by the jury, would support a

rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim.

App. 2007), cert. denied, 553 U.S. 1059 (2008). In deciding the issue, we view the evidence in

the light most favorable to the defendant. Ferrel, 55 S.W.3d at 591.

       A person is justified in using force against another when he believes the force is

immediately necessary to protect him against the other’s use of unlawful force. See TEX. PENAL

CODE ANN. § 9.31 (West 2011). A person is justified in using deadly force if he is justified in

using force against the other person under section 9.31 of the Texas Penal Code and the person

reasonably believes deadly force is immediately necessary to protect himself against the other

person’s use or attempted use of unlawful deadly force. See id. § 9.32. The resolution of this

case turns on whether there was some evidence in the record which would permit a jury to make

a rational inference that when Cavazos shot the victims, Davila and one of the witnesses were

using or attempting to use unlawful deadly force against Cavazos and Cavazos reasonably

believed the use of deadly force was immediately necessary for his protection.

       Cavazos argues there was sufficient evidence to support the submission of an instruction

on self-defense. Although there was no direct evidence of Cavazos’s state of mind, Cavazos

contends that testimony there was gunshot residue on the hands of one of the victims and one of

the witnesses was sufficient to support a rational inference that the two used firearms to shoot at

Cavazos. To place this argument in perspective, a brief recitation of the evidence is necessary.



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        Cavazos was convicted of killing Rodolfo Davila and of aggravated assault on Edmundo

Zambrano by shooting both with a firearm. Before the shooting, Davila, Zambrano, and Steve

Lozano were playing pool at a bar on the east side of San Antonio after the bar’s 2:00 a.m.

closing time. Lozano testified he heard a knock on the door, and saw Davila admit four men,

one of whom was Cavazos. Cavazos and one of the other men engaged Davila in conversation.

Lozano testified that “all of a sudden” he heard gunshots. When he turned, he saw Cavazos and

the other man with guns. Lozano testified that Davila was shot, the two men pointed their

weapons at Zambrano and Lozano, who both dove to the ground. Lozano heard additional shots

and then saw the four men run out. Lozano went to aid Davila, but Davila died in his arms.

Lozano told the jury that he did not have a weapon nor did he see any weapon lying near Davila.

He testified the only people with guns were Cavazos and one of the men who came with Cavazos

into the bar.

        Zambrano testified that after the initial gunshots, Cavazos came and placed a gun against

his head. Zambrano tried to run, heard two more shots, and fell to the ground. After the four

men fled, Zambrano discovered he had been shot in the leg. He identified Cavazos as the person

who shot him.

        Dr. Jennifer Rulon, a medical examiner, testified Davila had a total of nine gunshot

wounds — one in an arm and eight in the torso. She testified that six of the nine wounds would

have been fatal standing alone. One of the wounds had powder tattooing, indicating that the gun

was fired from close range. Dr. Rulon recovered several slugs and bullet fragments from the

body.   Tami Sleigh, a firearms examiner with the Bexar County Crime Lab, testified she

examined the slugs and bullet fragments from the autopsy and crime scene. She determined that

there were two different caliber bullets involved — .40 caliber and 9 millimeter, and that all the



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bullets of the same caliber were fired from the same gun. Sleigh also examined spent cartridges

retrieved from the crime scene. She determined that seven cartridges were from .40 caliber

bullets and five cartridges were from 9 millimeter bullets. Sleigh further determined that all of

the cartridges of the same caliber were fired from the same weapon. The physical evidence thus

established that Davila was killed with bullets from two different weapons, and there was no

evidence of any other firearm present at the murder scene.

       Cavazos relies on the testimony of Christina Vachon, a forensic scientist with the Bexar

County Crime Lab to establish his right to the self-defense jury instruction. Vachon testified that

gunshot residue was found on both of Davila’s and Lozano’s hands. Vachon explained to the

jury that gunshot residue forms as a cloud around a firearm when it is fired. The cloud will settle

on items that are around the weapon. Gunshot residue can be carried by air currents, and a

person walking through a room could have residue deposited on him. Vachon testified that the

presence of gunshot residue indicates that a person fired a weapon, handled a weapon that had

been fired, or was in close proximity to someone else who fired a weapon. She also testified that

multiple gunshots would result in a larger cloud of gunshot residue being released into the air.

       Cavazos argues evidence of gunshot residue on Davila’s and Lozano’s hands is sufficient

to permit a rational inference that Lozano and Davila fired weapons. Vachon testified that the

firing of a weapon or handling a recently-fired weapon were possible explanations, but also

testified that being in close proximity to someone who fired a weapon was an equally possible

explanation. Cavazos argues that this court is required to view the evidence in the light most

favorable to him, and this principle compels us to accept the explanation that Lozano and Davila

fired a weapon. We disagree. In Hooper v. State, the Texas Court of Criminal Appeals, in the

context of legal sufficiency review, discussed when evidence is sufficient to support a rational



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inference. 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). The court began by recognizing the

differences between a presumption, a reasonable inference supported by the evidence, and

speculation.

       A presumption is a legal inference that a fact exists if the facts giving rise to the
       presumption are proven beyond a reasonable doubt. See TEX. PENAL CODE § 2.05.
       For example, the Penal Code states that a person who purchases or receives a used
       or secondhand motor vehicle is presumed to know on receipt that the vehicle has
       been previously stolen, if certain basic facts are established regarding his conduct
       after receiving the vehicle. TEX. PENAL CODE § 31.03(c)(7). A jury may find that
       the element of the offense sought to be presumed exists, but it is not bound to find
       so. TEX. PENAL CODE § 2.05. In contrast, an inference is a conclusion reached by
       considering other facts and deducing a logical consequence from them.
       Speculation is mere theorizing or guessing about the possible meaning of facts
       and evidence presented. A conclusion reached by speculation may not be
       completely unreasonable, but it is not sufficiently based on facts or evidence to
       support a finding beyond a reasonable doubt.

Id.

       Cavazos asserts the relevant conclusion — that Davila or Lozano fired a weapon at him

— was raised by evidence of the gunshot residue test results. This conclusion is not a rational

inference, but rather is mere speculation. There are no “other facts” in the record from which we

can deduce a logical conclusion that either man fired a weapon. See id. No firearm was found at

the murder scene, and Lozano testified he did not have a weapon and did not see a weapon near

Davila. Rather, the evidence supports the explanation that the gunshot residue resulted from

Davila and Lozano being in close proximity to others who fired weapons. Vachon testified that

the cloud of gunshot residue would be larger when multiple gunshots occurred. The physical

evidence indicates that at least twelve shots were fired in an enclosed room. The only way to

infer that Davila or Lozano fired a weapon would be by merely “theorizing or guessing about the

possible meaning of facts and evidence presented.” See id. Viewing the evidence in the light




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most favorable to Cavazos, the evidence failed to raise each element of self-defense, and the trial

court did not err in refusing to include a self-defense instruction in the jury charge.

       The judgments of the trial court are affirmed.



                                                       Steven C. Hilbig, Justice

DO NOT PUBLISH




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