Opinion filed November 21, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00282-CR
                                  __________

                     EZEQUIEL ALVAREZ, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 26240A


                     MEMORANDUM OPINION
      The jury convicted Appellant, Ezequiel Alvarez, of the offense of aggravated
assault. See TEX. PENAL CODE ANN. § 22.02(a) (West 2019). Appellant pleaded
true to an enhancement allegation, and the trial court assessed his punishment at
confinement for a term of thirty-five years. In his single issue on appeal, Appellant
contends that the trial court erred by refusing to charge the jury on defense of a third
person. We affirm.
                                        Background Facts
       On December 28, 2014, Appellant, along with Esequiel Munoz and two
women, drove to the home of Ernest Gonzales following an argument over the
phone. According to Ernest and his son, Victor Gonzales, once Appellant arrived at
the house, Appellant immediately exited the vehicle wielding a gun. Victor yelled
for the children to get inside the house.
       Victor testified that he and Ernest pleaded for Appellant and Munoz to leave
but that Appellant began firing “warning shots” at the ground and telling Ernest and
Victor to back away. 1 Appellant then fired an additional shot into the ground, which
struck Ernest in his foot. Ernest testified that, at that point, Ernest chased after
Appellant, trying to disarm him. Victor testified that he tried to stop his dad and
Appellant “from getting into it.”
       During the ensuing scuffle, Appellant’s foot was injured. According to
Appellant, he was unable to continue fighting, and he “blindly” fired two shots
behind him as he attempted to get in his vehicle. One of the two shots struck Ernest
in the stomach. The other shot struck Victor in the right side of his chest. Then, as
police officers began to arrive at the scene, Appellant fled in his vehicle.
       Ultimately, Appellant was apprehended and indicted for the aggravated
assault of Victor. At the conclusion of his trial, Appellant was convicted and
sentenced to confinement for a term of thirty-five years. This appeal followed.
                                       Jury Charge Error
       In Appellant’s sole issue, he contends that the trial court erred by refusing to
submit to the jury the requested charge on defense of a third person. A review of
alleged jury-charge error involves a two-step analysis. Ngo v. State, 175 S.W.3d


       1
       According to Appellant, he fired the warning shots to protect Munoz because “they were trying to
jump [Munoz].”

                                                  2
738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731–32
(Tex. Crim. App. 1994). First, we must determine whether the charge contains any
actual error; second, if there is actual error, we must determine whether the error
resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor,
871 S.W.2d at 731–32. If the defendant preserved the error by timely objecting to
the charge, an appellate court will reverse so long as the defendant demonstrates that
he suffered some harm. Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App.
2009).
      In this case, Appellant made the following timely objection to the charge:
              Yes, Your Honor. I would like to add the defense of third party
      instruction, specifically Mr. Munoz. And if I could, what I would do is
      direct your attention to a slide that’s actually in evidence, except it’s
      got graphics on there of where I think people were based on the
      testimony, or where they could have been. And I believe the testimony
      is that Esequiel Munoz is somewhere around here (indicating) and that
      Mr. Alvarez is moving in this general direction (indicating). And I
      believe that if there is evidence that Victor Gonzales is threatening or
      causing serious bodily injury or about to cause serious bodily injury to
      Esequiel Munoz, then Mr. Alvarez has the right to use deadly force to
      shoot Victor Gonzales to protect Esequiel Munoz.
Accordingly, any potential error must be reversed upon a showing by Appellant that
he has suffered some harm. Sakil, 287 S.W.3d at 25–26.
      A trial court must charge the jury fully and affirmatively on the law applicable
to every issue raised by the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.14
(West 2007). The trial court must give a requested instruction on “every defensive
issue raised by the evidence, regardless of whether the evidence is strong, feeble,
unimpeached, or contradicted, and even when the trial court thinks that the testimony
is not worthy of belief.” Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App.
2007). If there is some evidence on each element of the defense that, if believed by
the jury, would support a rational inference that each element is true, then the defense

                                           3
has been raised. Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).
By contrast, a trial court is under no obligation to provide an instruction in a jury
charge on matters not raised by the evidence. See Harris v. State, 645 S.W.2d 447,
456 (Tex. Crim. App. 1983).
                               Defense of Third Person
      Appellant asserts that he was entitled to the jury charge on defense of a third
person based on the following testimony from trial:
             Q. Okay. What’s the next thing that happens?
            A. They started getting around Munoz, and so I pulled out the
      gun. I pulled out the gun and I fired to the ground and I told them to
      back up from Munoz.
             Q. Okay. Why?
             A. Because it looked like they were trying to jump him.
             Q. Well, you were perfectly happy to let the girls fight and not
      intervene. Is that correct?
             A. Yes, sir, that’s why I was --
            Q. You were -- okay. So if you were okay with that, why weren’t
      you okay with letting Munoz fight and not intervening?
            A. Um, if it was a one-on-one deal, I would have let -- I would
      have left it alone. But two or three on one, I felt like I had to get to help
      him, protect him.

Appellant argues that this testimony sufficiently raised the issue of whether he was
acting in defense of a third person. We disagree.
      According to Section 9.33 of the Texas Penal Code:
            A person is justified in using force or 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 under
             Section 9.31 or 9.32 in using force or deadly force to

                                           4
             protect himself against the unlawful force or 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.
PENAL § 9.33. Section 9.32(a) further provides:
             A person is justified in using deadly force against another:
                   (1) if the actor would be justified in using force
             against the other under Section 9.31; and
                   (2) when and to the degree the actor reasonably
             believes the deadly force is immediately necessary:
                          (A) to protect the actor against the
                    other’s use or attempted use of unlawful
                    deadly force; or
                          (B) to prevent the other’s imminent
                    commission of aggravated kidnapping,
                    murder, sexual assault, aggravated sexual
                    assault, robbery, or aggravated robbery.
PENAL § 9.32(a).
      Based on the statutory language, defense of a third person requires more than
simply defending a third person: “One requirement for the defense of third persons
is that the defendant believe his action is immediately necessary to protect the third
person.” Nance v. State, 807 S.W.2d 855, 863 (Tex. App.—Corpus Christi 1991,
pet. ref’d). Force that is “immediately necessary” to protect another from a person’s
use of unlawful force is force that is needed at that moment. Henley v. State, 493
S.W.3d 77, 89–90 (Tex. Crim. App. 2016). Accordingly, even if Appellant’s
testimony is taken as true, defense of a third person is not raised.
      During the testimony in question, Appellant states that he fired the initial shots
for the purpose of protecting Munoz. Even so, the shooting of Ernest in the stomach

                                           5
and Victor in the chest did not occur at that point; the initial shots were fired into the
ground. According to Appellant, after he fired the initial shots into the ground, he
fired another shot into the ground, which he says accidentally struck Ernest in the
foot. It was not until after Ernest and Victor approached Appellant to take his gun
that Appellant shot Ernest in the stomach and Victor in the chest. In fact, according
to Appellant, when he shot Ernest in the stomach and Victor in the chest, he did so
“blindly” while trying to get into his vehicle. Appellant testified that he fired those
two shots “when they started coming toward [Appellant]” again. We note that the
jury charge included an instruction on the law of self-defense. Given the gap in time
and circumstances, it is difficult to see how Appellant’s testimony raised the issue
of whether his blindly firing a gun at his own attackers was immediately necessary
to protect Munoz. Moreover, no evidence or testimony from any other witness
suggests that Appellant shot Victor to protect Munoz. We overrule Appellant’s sole
issue.
                                         This Court’s Ruling
         We affirm the judgment of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE
November 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

         2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      6
