                                 MEMORANDUM OPINION
                                        No. 04-10-00642-CR

                                       Lawrence Adam PENA,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008CR10043B
                            Honorable Mary D. Román, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 22, 2011

AFFIRMED

           A jury found appellant, Lawrence Adam Pena, guilty of murder and assessed punishment

at life in prison. On appeal, appellant challenges the legal sufficiency of the evidence and asserts

he was egregiously harmed by error in the jury charge. We affirm.

                               SUFFICIENCY OF THE EVIDENCE

           Appellant was found guilty of murdering Evaristo Mena on the night of June 3, 2008. At

trial, appellant claimed he acted in defense of his brother Kenneth Pena. On appeal, appellant
                                                                                      04-10-00642-CR


asserts the evidence is legally insufficient to support the jury’s implicit rejection of his “defense

of a third person” justification defense.

A.     Standard of Review

       When determining whether evidence is sufficient to support each element of a criminal

offense that the State is required to prove beyond a reasonable doubt, we use 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). The Brooks Court characterized this standard as asking whether,

considering all of the evidence in the light most favorable to the verdict, a jury was rationally

justified in finding guilt beyond a reasonable doubt. Id. at 899, 902 (citing Jackson, 443 U.S. at

319). “Viewing the evidence ‘in the light most favorable to the verdict’ under a legal-sufficiency

standard means that the reviewing court is required to defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the weight to

be given their testimony.” Id. at 899.

       A person commits the offense of murder if he intentionally or knowingly causes the death

of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2003). A person is justified in

using deadly force against another to protect a third person if (1) under the circumstances as the

actor reasonably believes them to be, the actor would be justified in using force or deadly force

to protect himself against the use or attempted use of unlawful deadly force he reasonably

believes to be threatening the third person he seeks to protect; and (2) the actor reasonably

believes that his intervention is immediately necessary to protect the third person. Id. §§ 9.31(a),

9.32(a) (West Supp. 2010). The defendant has the burden of producing some evidence to

support his justification defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003). Once the defendant produces some evidence, the State bears the burden of persuasion to



                                                -2-
                                                                                      04-10-00642-CR


disprove the raised defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). This

burden does not require the State to produce evidence; it requires only that the State prove its

case beyond a reasonable doubt. Id. “Defense of a third person” is an issue of fact to be

determined by the jury, and a verdict of guilty is an implicit finding by the jury rejecting the

defendant’s defensive theory. See id. at 913-14.

B.     The Evidence

       On the night of June 3, 2008, Evaristo Mena and several friends arrived at Ric-Ron’s

Taco House to eat. After getting their table, Mena went outside to the parking lot, presumably to

use his cell phone. A short time later, Mena came back to the door of the restaurant, bleeding

from his mouth and shoulder. One of Mena’s friends, Kathy Flores, said she saw two “flower

girls” selling flowers in the parking lot. After Mena appeared at the door bleeding, Flores said

she saw a man get into the passenger side of a red F-150 pickup truck. Another of Mena’s

friends, Leroy Benavides, said he saw two people running toward a red pickup truck that was

parked in the lot of a bar next to Ric-Ron’s. The red truck left the parking lot and headed south

on Roosevelt Street.

       Eventually, the police and EMS arrived, and EMS transported Mena to a hospital where

he later died. At trial, the medical examiner testified Mena had three specific injuries: (1) a

small bruise on the underside of his lip, (2) a very superficial cut on his left upper arm, and (3) a

stab wound to the chest that went directly into his heart.

       One of the responding police officers said he spoke to a woman named Yvonne Pena on

the night of the stabbing. Pena, who is not related to appellant, knew appellant from a prior

sexual relationship. Pena testified she was across Roosevelt Street from Ric-Ron’s when she

saw a “scuffle” across the street. She saw a man, later identified as Mena, “face off” with two



                                                -3-
                                                                                  04-10-00642-CR


other men who were trying “to corner him.” She said Mena was trying to fight off the men who

were hitting him, then he threw money at them and began to run towards a house at the end of

the lot. As the men chased Mena, he fell, and she heard a bottle break. She saw appellant fall on

top of Mena, pull something from his [appellant’s] pocket and “lunged” it into Mena. When

Mena got back up and started toward Ric-Ron’s, she heard appellant say something to the effect

of “don’t worry about it, dude, I already got him.” Appellant and another man, whom she later

learned to be Kenneth, walked back to the truck. Although Pena did not notice any injuries on

either appellant or Kenneth, she called out to appellant asking him if he was “alright.”

According to Pena, appellant responded that he was fine, and then he and Kenneth got into the

pickup truck and drove south on Roosevelt. Pena identified the man she spoke to as “Adam.”

       Another witness, Americo Vega, said he saw someone walking toward Ric-Ron’s who

was bleeding. Vega saw two other men, one of whom said to the other “I stabbed him.” Vega

saw both men get into a red pickup truck. Vega was unable to identify either of the two men

from a photo lineup.

       Following up on a Crime Stoppers tip, the police later identified “Adam” as Lawrence

Adam Pena, the appellant, and the other man as appellant’s brother, Kenneth Pena. Yvonne

Pena later identified “Adam” from a photo lineup as the man she saw and spoke to the night of

the murder. A search of Kenneth’s truck yielded no significant evidence. The police were

unable to locate the two “flower girls.”

       At trial, appellant testified on his own behalf and the following is a recitation of his

testimony. Appellant and Kenneth were entering the parking lot near the bar when they saw

Mena and the “flower girls.” Appellant said “we” asked Mena and the girls to “move over.”

Kenneth then parked the truck next to another car and turned off the motor. At this point, Mena



                                              -4-
                                                                                  04-10-00642-CR


walked up to Kenneth’s red F-150 Ford truck and “got in Kenneth’s face.” Mena, who appellant

did not know, looked angry and tried to open the driver’s door of the truck, but Kenneth held the

door closed. When Mena again tried to open the door, Kenneth got out of the truck and stood

within two feet of Mena; both men were now arguing. Appellant got out of the truck and walked

around the back of the truck to see what was happening. Appellant got between his brother and

Mena. All three men were between Kenneth’s truck and the car. Kenneth and Mena then started

to fight, but appellant did not know who started the fight. Appellant said that Mena “connected

my brother in the chin, and my brother buckled” and “got like dazed.” Mena then turned and

tried to hit appellant. Appellant was able to get Mena to back up by “throwing his [appellant’s]

arms” and then appellant tried to kick Mena “to get him away.” Kenneth approached and Mena

started to yell at him. Mena then got Kenneth “in a head lock,” and Kenneth dropped to his

hands and knees. Mena told Kenneth, “I’m going to fuck you up,” “I’m going to kill you ‘flaco’

[skinny].” Because he thought Mena was going to hurt his brother, appellant pulled his knife

from his back pocket.

       Appellant admitted to stabbing Mena only once. Appellant said he could have stabbed

him more than once, but he did not and instead he “just look[ed at Mena], like get back, get back

. . . .” Appellant said he had no choice but to stab Mena because Mena said he was going to kill

Kenneth, he was already beating up Kenneth, and Kenneth—who is “real skinny”—could not

defend himself. When appellant told Mena “that’s it,” Mena turned and ran away, but then

stumbled and fell on his hands. Appellant began to walk toward Mena as he ran away because

Mena yelled “I’m going to get y’all, or I’m going to ‘f’ you up, fools.” Appellant did nothing

more to Mena, and instead, told his brother he wanted to leave. Appellant insisted he and




                                              -5-
                                                                                     04-10-00642-CR


Kenneth walked, and did not run, to the truck. Appellant said that although his brother was

beaten and his brother had a heart murmur, they did not go to the hospital.

       On appeal, appellant asserts he had only the briefest of moments to decide what to do,

under extremely stressful emergency conditions in a darkened parking lot in the middle of the

night. Appellant’s rendition of the events is not entirely inconsistent with the evidence presented

by the State.   However, this does not render the State’s evidence insufficient because the

credibility determination of such evidence is solely within the jury’s province and the jury is free

to accept or reject the defensive evidence. Saxton, 804 S.W.2d at 914. After viewing the

evidence in the light most favorable to the verdict, we conclude any rational trier of fact could

have found the essential elements of murder beyond a reasonable doubt, and thereby implicitly

reject appellant’s “defense of a third person”.

                                         JURY CHARGE

       In his second issue, appellant asserts he was egregiously harmed because the trial court

failed to sua sponte instruct the jury that his use of deadly force was presumed reasonable under

the circumstances.

       Appellant’s defensive theory was that he fatally stabbed Mena to protect his brother. The

jury charge instructed the jury that

       a person is justified in using deadly force against another to protect a third person
       if, under the circumstances as he reasonably believes them to be, such person
       would be justified in using force and deadly force to protect himself against the
       unlawful or deadly force of another which he reasonably believes to be
       threatening the third person he seeks to protect, provided he also reasonably
       believes that his intervention is immediately necessary to protect the third person.

       In addition to this instruction, appellant contends the trial court also should have sua

sponte instructed the jury that an actor’s belief that deadly force was immediately necessary “is

presumed to be reasonable” if the actor “knew or had reason to believe that the person against

                                                  -6-
                                                                                    04-10-00642-CR


whom the deadly force was used” was committing or attempting to commit murder. See TEX.

PENAL CODE ANN. § 9.32(b)(1)(C). Appellant contends the trial court’s failure to include the

additional instruction resulted in egregious harm under Almanza v. State, 686 S.W.2d 157 (Tex.

Crim. App. 1984). Under Almanza, we first determine whether the jury charge was erroneous.

Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010). If it was, then because appellant

did not object, we next determine whether the error in the charge resulted in egregious harm.

Almanza, 686 S.W.2d at 171. We will assume without deciding that the trial court erred, and for

the reasons below, we determine appellant was not egregiously harmed.

       In examining the record for egregious harm, we consider the entire jury charge, the state

of the evidence, the final arguments of the parties, and any other relevant information revealed

by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.

2006). “Jury charge error is egregiously harmful if it affects the very basis of the case, deprives

the defendant of a valuable right, or vitally affects a defensive theory.” Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007). Here, appellant argues the charge error vitally

affected his “defense of a third person” defensive theory because such a defense required that his

belief be reasonable and he was entitled to the presumption of reasonableness.

       As noted above, the jury charge instructed the jury on “defense of a third person.”

Although the charge did not include an instruction on the presumption of reasonableness, the

charge defined “reasonable belief” to mean “a belief that would be held by an ordinary and

prudent person in the same circumstances as the defendant.” The jury was then instructed that if

it believed that appellant reasonably believed Mena was using or attempting to use unlawful

deadly force against Kenneth and that the use and degree of force were immediately necessary to




                                               -7-
                                                                                         04-10-00642-CR


protect Kenneth against Mena’s use or attempted use of deadly force, then the jury should find

appellant not guilty.

       During the State’s closing, the prosecutor explained to the jury when someone is justified

in using force against another, and in the process, used two short examples to illustrate

“reasonable belief.” However, most of the State’s closing focused on the evidence presented at

trial, in particular the testimony of Yvonne Pena. Similarly, defense counsel also focused on the

testimony of both appellant and Pena. Defense counsel did not state to the jury that appellant’s

actions were reasonable, except to say the confrontation escalated quickly “to the point where

[appellant] felt he had no other choice but to do what he did to protect his brother.”

       Based on our review of the record, it is apparent the jury was faced with a credibility

question, and recognizing this, both the State and the defense focused their closing arguments on

appellant’s and Pena’s testimony. On this record, we cannot conclude the jury charge error

affected appellant’s defensive theory. Therefore, the charge error, if any, did not result in

egregious harm to appellant.

                                         CONCLUSION

       We overrule appellant’s issues on appeal and affirm the trial court’s judgment.




                                                  Sandee Bryan Marion, Justice

Do not publish




                                                -8-
