                                                             March 16, 2015


                   No. PD-1039-14

        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
              BRIEF ON THE MERITS


                    Brandy Wingate Voss
                   State Bar No. 24037046
                   SMITH LAW GROUP, P.C.
                    820 E. Hackberry Ave.
                    McAllen, Texas 78501
                 (956) 683-6330 (Telephone)
                     (956) 225-0406 (Fax)
                  brandy@appealsplus.com

   Counsel for Appellant Jose Guadalupe Rodriguez Elizondo

             ORAL ARGUMENT REQUESTED
         IDENTIFY OF JUDGE, PARTIES, AND COUNSEL
Trial Court Judges                      Hon. Aida Salinas Flores
                                        Hon. Linda Yañez sitting by assignment

Appellant                               Counsel for Appellant

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                                Counsel for Appellee

State of Texas                          Lisa C. McMinn
                                        State Prosecuting Attorney
                                        Office of State Prosecuting Attorney of
                                        Texas
                                        P. O. Box 13046
                                        Austin, Texas 78711-3046

                                        Ted Hake
                                        Michael Morris
                                        Hidalgo County District Attorney’s
                                        Office
                                        Assistant District Attorneys—Appeals
                                        Division
                                        100 N Closner Rm 303
                                        Edinburg, TX 78539




                                    i
     Trial Counsel

     Rolando Cantu
     Criselda Rincon-Flores
     Hidalgo County District Attorney’s
     Office
     Asst. Criminal District Attorneys
     100 N. Closner
     Edinburg, Texas 78539




ii
                                       TABLE OF CONTENTS

Identify of Judge, Parties, and Counsel ......................................................................i

Index of Authorities ..................................................................................................vi

Statement of the Case................................................................................................ix

Statement Regarding Oral Argument ........................................................................ x

Issues Presented ......................................................................................................... x

         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?
                   [UNBRIEFED ISSUE PER THE COURT’S REQUEST]

         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? [BRIEFED ISSUE PER THE COURT’S
                   REQUEST]



                                                            iii
         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? [BRIEFED ISSUE PER
                  THE COURT’S REQUEST]

Statement of Facts ...................................................................................................... 1

         1.       Elizondo goes to Punto 3 Nightclub with his family, and the
                  first altercation occurs outside the nightclub. ....................................... 2
                  A.        The Limon family owns Punto 3 Nightclub. .............................. 2
                  B.        Two women get into a fight at Punto 3 and are escorted
                            out; Elizondo and his brother Juan follow them outside. ........... 2
                  C.        Maria tells Elizondo that Junior treated her badly, and the
                            first altercation occurs outside the club. ..................................... 5
         2.       Elizondo runs away from the altercation, attempting to flee, but
                  Punto 3 employees chase him almost seventy yards to his truck. ........ 9
         3.       A second altercation occurs at Elizondo’s truck. ................................ 12

         4.       Limon threatens Elizondo with deadly force, pointing a gun at
                  him, and Elizondo shoots him. ............................................................ 15
         5.       Testimony on the reasonableness of Elizondo’s conduct ................... 20

         6.       The trial court submits a provocation instruction over
                  Elizondo’s objection and submits a self-defense charge that is
                  inaccurate and incomplete. .................................................................. 24

         7.       The jury finds Elizondo guilty, and sentences him to twenty-
                  five years in prison. ............................................................................. 27


                                                            iv
         8.        The Court of Appeals affirms.............................................................. 27
Summary of the Argument....................................................................................... 32

Argument.................................................................................................................. 34

         I.        The court of appeals should have analyzed all the elements of
                   Smith v. State. ...................................................................................... 34

                   A.       There was no evidence that Elizondo performed some act
                            or used words that actually provoked the second attack........... 36

                   B.       There was no evidence that the words “Van a ver” were
                            reasonably calculated to provoke an attack or that the
                            words were used for the purpose and with intent to
                            provide a pretext........................................................................ 40
         II.       The court of appeals affirmed on a jury charge that was grossly
                   incorrect by ignoring and then misapplying this Court’s
                   precedent. ............................................................................................ 44

                   A.       The court of appeals erroneously affirmed the trial
                            court’s submission of a provocation instruction. ...................... 45

                   B.       The court of appeals erroneously refused to review two
                            omissions from the charge, in conflict with this Court’s
                            prior decisions. .......................................................................... 46

                   C.       The court of appeals erroneously failed to properly apply
                            the appropriate harm analysis to the other charge errors. ......... 49

                   D.       The jury charge was a garbled mess, and a review of the
                            complete charge and application of the proper harm
                            analyses requires reversal. ........................................................ 52
Conclusion and Prayer ............................................................................................. 56

Certificate of Compliance With Rule 9.4(e) ............................................................ 57

Certificate of Service ............................................................................................... 58




                                                             v
                                   INDEX OF AUTHORITIES

Cases
Almanza v. State,
     686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ...............................45

Barrera v. State,
      982 S.W.2d 415 (Tex. Crim. App. 1998) ......................................................47
Bateson v. State,
      46 Tex. Crim. 34, 80 S.W. 88 (1904) ............................................................41

Brown v. State,
     651 S.W.2d 782 (Tex. Crim. App. 1983). .....................................................54

Clark v. State,
      No. 04-13-00330-CR, 2014 WL 3843946 (Tex. App.—San
      Antonio Aug. 6, 2014, pet. ref’d) (mem. op., not designated for
      publication) ....................................................................................................41

Cornet v. State,
     417 S.W.3d 446 (Tex. Crim. App. 2013) ......................................................51

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
Flores v. State,
      No. 06-05-00023-CR, 2008 WL 41388 (Tex. App.—Texarkana
      Jan. 3, 2008, pet. ref’d) (mem. op., not designated for publication) .............46

Frank v. State,
     688 S.W.2d 863 (Tex. Crim. App. 1985) ............................................... 44, 47

Guerra v. State,
     No. 13-99-036-CR, 2000 WL 34251905 (Tex. App.—Corpus
     Christi Aug. 17, 2000, no pet.) (not designated for publication) ..................41




                                                           vi
Lerma v. State,
     807 S.W.2d 599 (Tex. App.—Houston [14th Dist.] 1991, pet.
     ref’d) ..............................................................................................................47

Malone v. State,
     No. 06-11-00013-CR, 2011 WL 5221264 (Tex. App.—Texarkana
     Nov. 3, 2011, no pet.) (mem. op., not designated for publication) ...............41

Mendoza v. State,
     349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d) ......................... passim

Morrison v. State,
     158 Tex. Crim. 424, 256 S.W.2d 410 (1953) ................................................41

Osborne v. State,
     No. 02-11-00010-CR, 2011 WL 5903651 (Tex. App.—Fort Worth
     Nov. 23, 2011, no pet.) (mem. op., not designated for publication) .............41
Posey v. State,
      966 S.W.2d 57 (Tex. Crim. App. 1998) ........................................................31

Reeves v. State,
     No. 01-10-00395-CR, 2012 WL 5544770 (Tex. App.—Houston
     [1st Dist.] Nov. 15, 2012) (mem. op., not designated for
     publication), aff’d, 420 S.W.3d 812 (Tex. Crim. App. 2013) .......... 38, 44, 52
Reynolds v. State,
     371 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2012, no pet.).................46
Saxton v. State,
      804 S.W.2d 910 (Tex. Crim. App. 1991) ......................................................50

Smith v. State,
      965 S.W.2d 509, 512 (Tex. Crim. App. 1998) ...................................... passim

Trevino v. State,
      83 Tex. Crim. 562, 204 S.W.2d 996 (1918) (op. on reh’g) ...........................37

Vega v. State,
      394 S.W.3d 514 (Tex. Crim. App. 2013) ......................................................48



                                                            vii
Villarreal v. State,
       No. PD-0332-13, 2015 WL 458146 (Tex. Crim. App. Feb. 4,
       2015) ..............................................................................................................54

Statutes
TEX. PENAL CODE ANN. § 9.04 ................................................................................46
TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B) .................................................... 25, 49

Other Authorities
Tex. Pattern Jury Charges, Criminal Defenses, § B14.2.9 (2013) ..........................53

Rules
TEX. R. APP. P. 78.1(c) .............................................................................................44

TEX. R. APP. P. 78.1(d) .............................................................................................44




                                                            viii
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

       Appellant, Jose Guadalupe Rodriguez Elizondo, files his Brief on the Merits

as requested by the Honorable Court and respectfully shows:

                        STATEMENT OF THE CASE1
Nature of the Case:                      The State charged Elizondo with the murder
                                         of Fermin Limon, Sr.2 Elizondo was tried by a
                                         jury and elected to have the jury determine
                                         punishment.3

Course of Proceedings:                   Trial before a jury lasted for nine days, and
                                         the jury heard evidence regarding the alleged
                                         murder and extensive testimony on
                                         Elizondo’s self-defense justification. 4 At the
                                         conclusion of the guilt-innocence phase of
                                         trial, the jury found Elizondo guilty of
                                         murder. 5 The jury assessed punishment of
                                         twenty-five years.6

Trial Court’s Disposition:               The trial court assessed punishment in
                                         accordance with the jury’s verdict and
                                         sentenced Elizondo to twenty-five years’
                                         imprisonment, and imposed court costs.7



1
        The clerk’s record consists of one volume and two supplemental volumes, which will be
cited as “CR[page]” and “[volume]Supp.CR[page],” respectively. The reporter’s record consists
of twenty-one volumes and one supplemental volume, which will be cited as “[vol.]RR[page]”
and “Supp.RR[page],” respectively. The exhibit volumes will be cited as follows:
“[vol]RRSX[exhibit number]” for the State’s exhibits, and “[vol]RRDX[exhibit number]” for the
Defense’s exhibits.
2
        CR2.
3
        CR62.
4
        10 RR-18 RR.
5
        2 Supp.CR9.
6
        2 Supp.CR14.
7
        CR69-71.
                                             ix
Motion for Rehearing and             Elizondo timely filed motions for rehearing
Reconsideration En Banc:             and for reconsideration en banc on March 3,
                                     2014 (the Thirteenth Court granted an
                                     extension of time).

Court of Appeals’ Disposition and The Thirteenth Court of Appeals overruled
Appeal to This Honorable Court: Elizondo’s motions for rehearing and for
                                  reconsideration en banc on June 30, 2014.
                                  Elizondo filed a petition for discretionary
                                  review, which this Court granted. The Court
                                  requested briefing on the merits as to issues 2
                                  and 3 only.


          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. Counsel

for appellant can assist the Court through oral argument.

                            ISSUES PRESENTED
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?
      [UNBRIEFED ISSUE PER THE COURT’S REQUEST]

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

                                          x
     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? [BRIEFED ISSUE PER THE COURT’S
     REQUEST]

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? [BRIEFED ISSUE
     PER THE COURT’S REQUEST]




                                       xi
                          STATEMENT OF FACTS
      Fermin Limon, Sr. (“Limon”) was the owner of Punto 3 Nightclub. In the

early morning hours of August 9, 2010, Jose Guadalupe Rodriguez Elizondo, who

was an off-duty U.S. Customs and Border Protection Agent, was involved in two

separate altercations outside Punto 3 nightclub. The details of those altercations

were disputed at trial.

      It is undisputed, however, that after Elizondo fled from the first altercation,

several Punto 3 employees pursued him almost 70 yards to his vehicle. There, a

second altercation occurred while one of those employees either forcefully entered

or removed Elizondo from his vehicle, or at the very least, was attempting to do so.

It is likewise undisputed that Limon followed thereafter and pointed a gun at

Elizondo. After Elizondo repeatedly asked Limon to put the gun down and Limon

failed to comply, Elizondo shot Limon in self-defense. The various accounts from

the witnesses are described below:




                                         1
1.     Elizondo goes to Punto 3 Nightclub with his family, and the
       first altercation occurs outside the nightclub.
       A.     The Limon family owns Punto 3 Nightclub.
       Limon owned a nightclub called Punto 3. 8 Limon employed his daughter

Mireya and son Junior at the club. 9 Limon also employed Rodrigo Carreon

Hernandez, Francisco Garcia, and Bryan Cruz at Punto 3.10 In August 2010, the

nightclub did not have professional security guards; instead, Punto 3 relied on its

employees if an incident occurred requiring security.11

       B.     Two women get into a fight at Punto 3 and are escorted
              out; Elizondo and his brother Juan follow them outside.
       Elizondo, his wife Maria, and his brother Juan went to Elizondo’s mother’s

house on the afternoon of August 8, 2010 for a barbeque.12 The three then went to

Punto 3 Nightclub, arriving at approximately 12:45 a.m. on August 9, 2010.13

       At the time of the events in this case, Elizondo was employed by the

Department of Homeland Security as a United States Customs and Border




8
        Punto 3 Nightclub is located in Mission, Texas on Elida Street, which runs east and west,
and the nightclub is situated on the south side of that roadway. 11RR21; 20RRSX111. As shown
on State’s Exhibit 111, a fence runs along the east side of Punto 3, running north and south,
separating the parking area. 20RRSX111. The fence is approximately six feet tall. 11RR130.
9
        12RR6-7, 9; 15RR208-09. Fermin Limon, Jr. will be referred to as “Junior” to distinguish
him from his father.
10
        12RR36; 13RR35, 96; 14RR83.
11
        12RR19-20; 16RR15-17.
12
        14RR197, 207; 15RR105; 16RR111; 21RRDX21.
13
        14RR207-09; 15RR108-110

                                               2
Protection Officer.14 He testified that he was authorized to carry his government-

issued firearm at all times, concealed or otherwise. 15 Elizondo testified that,

nevertheless, he left the firearm and his officer credentials inside the center console

of his Dodge truck, which he parked in the parking lot of Punto 3.16

      Elizondo’s brother Juan testified that once inside the club, he attempted to

break up a fight between two women.17 Punto 3 employees outside escorted Juan

with the group, and Elizondo followed, telling Juan not to get involved and to calm

down. 18 Juan stated that he went outside and began talking to Limon, who he

understood to be the manager or head of security at Punto 3.19 Juan explained the

situation to Limon and was allowed to go back inside the club.20 Juan testified that

at the time, there were at least five Punto 3 employees outside the club.21

      Elizondo’s wife, Maria, testified that after she, Juan, and Elizondo arrived at

Punto 3, she saw some people fighting and that Juan was nearby. 22 She told

Elizondo to check on Juan.23 The people were exiting the club, and some were



14
       14RR241; 15RR205; 16RR111, 171-72; 21RRDX21. Prior to becoming a customs agent,
Elizondo served as a peace officer for the City of Donna. 16RR172.
15
       16RR179-83; 21RRDX24.
16
       16RR114, 175-76; 21RRDX21.
17
       14RR221-22.
18
       14RR221-226; 12RR173; 16 RR 112; 21RRDX21.
19
       14RR226-27.
20
       14RR228-29.
21
       14RR230.
22
       15RR114.
23
       15RR114-15.

                                          3
throwing bottles, so she walked toward the entrance.24 Maria testified that she had

a drink in her hand, and a female employee of the club said, “This stupid lady

doesn’t want to leave her drink behind.” 25 Maria then brought her drink to the

counter and turned toward the entrance. 26 She testified that she tried to follow

Elizondo and Juan out of the club, and a Punto 3 employee grabbed her and said, “I

know the woman of your kind and get out.”27 She testified that he pushed her and

she got upset.28

      Junior testified that he recalled six people involved in a “discussion,” and his

mother told him to go “handle the situation.”29 Junior escorted some of the people

outside.30 Junior’s wife, who worked the nightclub’s ticket booth, told Junior that a

woman, later identified as Maria, was attempting to leave with a drink. 31 Junior

claimed that he told Maria to leave her drink inside, but he denied that he or his

wife used any bad language.32 Junior admitted, however, that he grabbed Maria by




24
      15RR115.
25
      15RR116.
26
      15RR118-120.
27
      15RR120-22; see also 15RR182.
28
      15RR121-22; see also 15RR182.
29
      15RR213-14.
30
      15RR215, 218.
31
      15RR218-20.
32
      15RR220-21.

                                          4
the arm.33 Junior then returned to the bar, and his mother asked him to check on

Limon outside.34

      C.    Maria tells Elizondo that Junior treated her badly, and
            the first altercation occurs outside the club.
      Maria testified that as Juan went back inside the club, she noticed Junior

making fun of her. 35 She told Elizondo that Junior had pushed her. 36 It was

undisputed that Elizondo confronted Junior about pushing his wife, but the precise

sequence of events was disputed.

      Rodrigo, who worked at Punto 3, testified that Elizondo was outside the club

talking to Limon, and Maria was being disrespectful and cussing at the Punto 3

employees.37 Then Junior “disrespected her,” and Elizondo intervened.38 Rodrigo

claimed that Elizondo said, “Well son of a bitch, are you going to calm down or

not”?39 According to Rodrigo, Elizondo said, “Don’t disrespect my woman you

son of a bitch,” and then hit Limon.40 Rodrigo testified that he then came forward

and hit Elizondo with an open palm.41 Rodrigo claimed that Elizondo kicked him,




33
      15RR224-25.
34
      15RR226.
35
      15RR122, 125-26.
36
      15RR126; 16 RR113; 21RRDX21.
37
      14RR95-97.
38
      14RR97-98, 125.
39
      14RR98.
40
      14RR98-99.
41
      14RR99-100.

                                        5
and a woman grabbed him from behind.42 Then Elizondo ran toward the parking

lot, and Bryan followed him, with Rodrigo following behind Bryan.43

       Junior testified that when he went outside the club, he saw his father talking

to two other men, using raised voices. 44 Bryan, Rodrigo, and another Punto 3

employee called “Pajaro” were standing with Limon.45 Junior claimed that when he

walked outside, Maria was screaming at him and calling him names, and he got

upset. 46 Junior testified that Elizondo then intervened and called him a “dumb

ass.” 47 Junior said Limon scolded Elizondo for calling Junior a name, and that

Elizondo then tried to hit Limon, but Elizondo missed.48 He testified that Rodrigo

reacted and hit Elizondo with the back of his hand. 49 Junior agreed that after

Rodrigo hit him, Elizondo ran away.50

       In contrast, Maria testified that once outside Punto 3, she told Elizondo that

Junior was “handling her.”51 She stated that when Elizondo walked toward Junior

and asked, “Why were you pushing my wife?,” Junior reacted angrily and became



42
       14RR100.
43
       14RR101-02, 126.
44
       15RR226-27.
45
       15RR231.
46
       15RR228.
47
       15RR228-29.
48
       15RR229-30; 16RR21-22.
49
       15RR232; 16RR60-61, 73-74. Junior’s prior statement, given to police right after the
incident, claimed that Elizondo tried to hit him, not his father. 16RR57. He told the police that
because he moved out of the way, Elizondo hit Rodrigo instead. 16RR57.
50
       15RR233; 16RR23-24.
51
       15RR126.

                                               6
aggressive.52 Then another Punto 3 employee said, “You’re not going to hit my

brother,” and he punched Elizondo.53 She explained that Elizondo “started moving

back until he got loose and he ran.”54 Maria started yelling for the men to stop.55

      Juan testified that after he re-entered the club, he did not see what was going

on outside, but he noticed someone running outside and realized Elizondo had not

come back inside Punto 3.56 He went back towards the club’s entrance, and as he

approached the door, he heard Maria yelling.57 He walked outside and saw Maria

crying.58 Maria told Juan that Elizondo had “got punched or he got beat up or

something like that,” and then Juan saw Elizondo running away.59

      In Elizondo’s statement to police, he stated that outside the club, Maria

pointed out a bald man that had pushed her. 60 According to Elizondo, the man

came toward Elizondo aggressively and pushed him, and Elizondo pushed back.61

Then, several people started punching Elizondo.62




52
      15RR127-28.
53
      15RR127-32.
54
      15RR129.
55
      15RR132.
56
      14RR230-32.
57
      14RR234.
58
      14RR234.
59
      14RR235.
60
      16RR113; 21RRDX21.
61
      16RR113; 21RRDX21.
62
      16RR113; 21RRDX21.

                                          7
      At trial, Elizondo testified to essentially the same sequence of events.63 He

claimed that when he first saw Maria, she looked as if she were about to cry.64

Maria pointed at Junior and told Elizondo that Junior had pushed her.65 Junior did

not have a Punto 3 logo on his shirt, and Elizondo thought he was just a

customer.66

      Elizondo asked Junior why he had pushed Maria, and he conceded that he

had called Junior a bad name. 67 Junior responded, “Here I can do whatever I

want.”68 Elizondo claimed that Junior then charged to the front and pushed him.69

Elizondo pushed him back.70 Then, Rodrigo hit Elizondo on the side of the face.71

      At that point, Elizondo said it “clicked” in his mind that all these men were

together, and Elizondo tried to hit Rodrigo back.72 He explained that it was chaotic,

and there were about four men swinging and grabbing at him.73 Elizondo knew he

was outnumbered, and he was moving backwards trying to get away from them.74




63
      16RR183-95.
64
      16RR183.
65
      16RR185.
66
      16RR186-87.
67
      16RR185-86, 263-64.
68
      16RR186.
69
      16RR186-87.
70
      16RR188.
71
      16RR188.
72
      16RR190.
73
      16RR191.
74
      16RR192.

                                         8
He could not defend himself against all four of them—there were too many of

them.75

      Elizondo explained that he thought he needed to get out of there.76 The only

safe place he could think of to go was to his truck.77 So he turned and ran as fast as

he could to his truck.78 Elizondo testified that he did not think about getting his gun

and returning at that point; he just wanted to get away from the brawl.79 As he

turned to run away, he could feel the men hitting him and kicking his feet to try to

trip him.80

2.    Elizondo runs away from the altercation, attempting to flee,
      but Punto 3 employees chase him almost seventy yards to his
      truck.
      It was undisputed that, after the first altercation outside the front door of

Punto 3, Elizondo ran through the parking lot and around the fence to his vehicle,

and Bryan, Rodrigo, and Junior followed him.81 The group chased Elizondo the

entire distance from the front door of Punto 3 around the fence to the parking lot,

which was approximately 67 yards.82



75
     16RR192.
76
     16RR194.
77
     16RR195.
78
     16RR195.
79
     16RR196.
80
     16RR196.
81
     12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-34, 233; 16RR113, 197;
21RRDX21.
82
     11RR95; 14RR102-03, 235.

                                          9
      Rodrigo admitted that during the chase, he was yelling at Elizondo to “stop

asshole.”83 According to Rodrigo, Elizondo unlocked his truck with his keys as he

was running toward the vehicle, and when he arrived at the truck, Elizondo got

inside, closed the door, and locked the vehicle.84

      Junior likewise admitted chasing Elizondo to his truck. 85 Junior stated he

could not recall whether Bryan or Rodrigo were yelling at Elizondo to “stop,

asshole,” or saying anything else. 86 He claimed, however, that while he was

chasing Elizondo, he heard Elizondo say, “Van a ver,” in Spanish, which was

translated as, “You’re going to see.”87

      Junior claimed that he took that as a threat, and he got scared.88 Junior stated

that upon hearing those words, he continued following, but slowed his pace.89 He

then claimed that “at that point,” he was following Elizondo because of “what he

had heard,” not because of what Elizondo had done to his father, Limon.90

      Later in his testimony, Junior changed his story: He claimed that

occasionally the Punto 3 employees would follow customers to their cars to make




83
      14RR102, 126.
84
      14RR103.
85
      15RR233.
86
      16RR24-25.
87
      15RR234-35; 16RR30.
88
      15RR235.
89
      15RR235.
90
      15RR235.

                                          10
sure they would “leave safely” and “don’t get in a fight outside the club.”91 He

testified that he would confirm that customers would go to their cars because he

feared that “[t]hey would go grab a weapon or try to grab—go grab something out

of their car or something and take it out on the people that are inside the club or

outside when we’re taking them outside . . . .”92

      Juan likewise testified that he saw Elizondo run towards the parking lot and

turn around the fence.93 A security guard following Elizondo took a swing to hit

him, but missed Elizondo.94 Juan then ran after Elizondo, noticing that the security

guards were going after Elizondo. 95 He testified that he heard them yelling at

Elizondo along the way.96

      Maria testified that the men were running behind Elizondo, and they caught

him before he got to the fence, hitting him and hitting his feet from behind.97 She

stated that the men were yelling, “Stop asshole. Stop.”98 Maria followed after.99

      Elizondo likewise testified at trial that as the men were following him to his

truck, one of the men was yelling, “Stop dumb ass” or “stop asshole.”100 Based on


91
      16RR9-10.
92
      16RR10, 25.
93
      14RR235.
94
      14RR235.
95
      14RR235.
96
      15RR11.
97
      15RR133-36.
98
      15RR133.
99
      15RR136-37.
100
      16RR198.

                                         11
what the men were saying and their tone of voice, and that they were shouting all

the way to his truck, Elizondo did not believe that these men were going to let him

go once he got to the truck.101

3.     A second altercation occurs at Elizondo’s truck.
       All the witnesses present at the time of the shooting said that Elizondo ran to

his truck and got inside, and Bryan, Rodrigo, and Junior approached the truck’s

window. 102 Francisco, a Punto 3 employee, testified that Bryan, Rodrigo, and

Junior were “banging on the windows” of the truck.103 Francisco then heard Bryan

say, “Run. There’s a gun.”104

       Rodrigo likewise testified that Junior “got to the truck and was hitting the

window telling [Elizondo], ‘Get off asshole.’”105 Rodrigo agreed that Junior was

trying to get Elizondo to come out of his truck because Elizondo was already

inside with the door locked.106 Rodrigo claimed that “another individual,” who he

did not identify, came up behind and grabbed Junior.107




101
        16RR198.
102
        13RR128, 139; 14RR103-04; 15RR236. Investigator Max Cantu, who took Elizondo’s
statement the morning after the shooting, testified that his understanding of Elizondo’s statement
was that he merely reached into the vehicle, but did not actually get inside the vehicle. 16RR120.
Investigator Cantu, however, explained this was how he “interpreted” Elizondo’s statement.
16RR120.
103
        13RR149, 179.
104
        13RR129, 150.
105
        14RR104, 105; 15RR42.
106
        15RR80.
107
        14RR105.

                                               12
      Rodrigo testified that Elizondo got out of the truck and hit Junior on the

forehead.108 Rodrigo claimed that he then jumped into the fight again, and he heard

the gun go off, but the bullet missed him because Junior hit Elizondo in the

stomach with his head. 109 Rodrigo stated that he ran away from the gunfire. 110

Later in his testimony, Rodrigo admitted that Elizondo never pointed the gun at

him and fired it.111 He claimed that Elizondo tried to hit him with the gun, and it

went off.112

      Junior denied hearing Bryan or Rodrigo say there was a gun, and he claimed

that when he arrived at the truck, he approached it by himself.113 He did not see

Rodrigo or Bryan when he got to the truck. 114 Junior stated that Elizondo was

inside the truck when he arrived there.115 He stated that he “tapped” on the driver’s

side window, so that Elizondo “could come outside of his truck.” 116 Later, he

admitted he was not “tapping nicely.”117




108
      14RR106; see also 13RR130, 150.
109
      14RR107.
110
      14RR108.
111
      15RR49, 52-53.
112
      15RR50.
113
      15RR236.
114
      16RR27.
115
      15RR237; 16RR28.
116
      15RR237.
117
      16RR29.

                                           13
      Junior testified that Juan then grabbed him from behind.118 He claimed he

felt punches on his head, but he could not tell from whom they were coming.119 He

also could not tell if a gun was being used to hit him, but stated that he had a cut on

his head that bled a lot, that he had bruising on his head an back, and that his shirt

was pulled open.120 He stated that he ducked down, and then he heard a shot.121

      In contrast, Juan testified that as he approached Elizondo’s truck, a man was

there and appeared to be struggling with Elizondo, and Juan also engaged in a

struggle with the man. 122 At that point, Elizondo was already outside of his

truck.123 Juan hit the man, and the man hit him back.124

      Elizondo told the police “they were coming after him, he pulled—he went to

his vehicle, he got his gun, he grabbed it . . . .”125 At trial, Elizondo testified that

while he was running to the vehicle, he remembered his gun. 126 He said he

unlocked the door as he was running toward it.127 He got in as fast as he could and




118
        15RR238; 16RR62.
119
        15RR238-39. While both Rodrigo and Junior testified that Junior’s head was cut, no
injuries were documented by the police or at the hospital, and Junior did not have a scar.
15RR47; 16RR63-65.
120
        16RR7-8, 67-68.
121
        15RR239.
122
        14RR241, 243.
123
        14RR242-43.
124
         14RR243.
125
        12RR181.
126
        16RR199.
127
        16RR199.

                                           14
shut the door.128 He said he did not have time to lock the door, and he immediately

opened the console to grab his gun.129

      Elizondo explained that he intended to grab the gun and his credentials, and

he thought that if he displayed his credentials, the men might stop. 130 Elizondo

grabbed the gun and was about to grab his credentials, and someone opened the

door and pulled him out of the truck.131 Elizondo said that he knew the rest of the

men were still coming, and so when the man pulled him out of the truck, he hit him

with the gun.132 Elizondo testified that Juan then arrived and grabbed the man from

behind.133 When Juan grabbed the man, something grabbed Elizondo’s attention

toward the rear of the truck, and that is when Elizondo noticed Limon standing

there with a gun pointed toward him.134

4.    Limon threatens Elizondo with deadly force, pointing a gun at
      him, and Elizondo shoots him.
      Francisco Garcia claimed after Elizondo got out of his truck, he heard a

gunshot, and moments afterward he saw Limon walking along the fence line

toward the gunshot.135 Francisco then saw “two guns being pulled out,” and he



128
      16RR199.
129
      16RR199-200.
130
      16RR200-01.
131
      16RR201-03.
132
      16RR203.
133
      16RR204.
134
      16RR204-06, 208.
135
      13RR133.

                                          15
explained that the guns were pointed at the same time.136 He claimed that Elizondo

and Limon were pointing the guns at each other, and he heard Elizondo tell Limon

several times to drop down to the floor.137 Francisco testified that Limon did not

follow the orders, but he was making hand gestures and pointing his gun with his

other hand. 138 Francisco thought the hand gesture meant to “calm down or

something.”139 Then Elizondo shot Limon.140 Limon walked back towards the club

and fell down, and then Rodrigo and Bryan took his gun and started shooting

towards Elizondo.141

       Rodrigo confirmed that at this point, he also saw Limon approaching with a

gun, pointing it at Elizondo.142 When Rodrigo first saw Limon, he already had the

gun in his hand.143 He claimed that Limon saw that “they had his son,” and that

Elizondo had his back to him. 144 Rodrigo stated that at that time, Elizondo was

hitting Junior with his gun.145




136
       13RR134, 174. It was undisputed that Limon had a 9-millimeter Taurus handgun, that he
would carry it while at Punto 3, and that he had it that night. 11RR87; 12RR22-24, 96, 104, 125;
12RR181; 14RR101-02; 20RRSX113; 21RRDX16.
137
       13RR135, 171, 172-73.
138
       13RR135.
139
       13RR136.
140
       13RR137.
141
       13RR139-142, 175.
142
       14RR108.
143
       15RR44.
144
       14RR108.
145
       15RR47.

                                              16
       Rodrigo claimed that Limon told Elizondo to “calm down. Let’s settle this

problem,” but acknowledged that Limon was pointing the gun at Elizondo.146 He

stated that Elizondo told Limon to “[g]et to the ground son of a bitch. Get to the

ground . . . [y]ou dog.”147 Later, Rodrigo inconsistently claimed that Elizondo said,

“Hit the ground you motherfucker. Hit the ground. . . You dog.”148

       Rodrigo testified that Elizondo did not give Limon time to comply, and

“instantly he shot him.”149 Later, however, Rodrigo admitted that it “took a little

while.”150 Rodrigo testified that Limon walked away and fell down by the fence,

and Rodrigo then grabbed Limon’s gun and attempted to shoot at Elizondo.151 The

gun locked up, and so Rodrigo passed it to Bryan, who unlocked it and fired at

Elizondo.152 Later, Rodrigo took Limon’s weapon and hid it.153 Rodrigo was later

arrested for tampering with evidence.154

       Junior stated that before he heard the first shot, he heard Juan yell that

Elizondo was an officer.155 Junior was turned loose, and he ran back to the club.156


146
       14RR108.
147
       14RR109.
148
       15RR46.
149
       14RR110.
150
       15RR46.
151
       14RR111.
152
       14RR112-15.
153
       14RR121-24.
154
       It was undisputed that, after the incident, Bryan Cruz, Rodrigo Carreon Hernandez, and
Adelfina Herrera Carredon were arrested for tampering with evidence. 12RR122-24, 126;
15RR174-77. Specifically, these individuals concealed Limon’s weapon after the incident, and it
was recovered in a dumpster by the police. 12RR122-24, 126; 13RR49; 14RR37.
155
       16RR38.

                                              17
Junior testified at trial that he never saw Limon approach the truck.157 He claimed

that as he ran back to the club, he saw Limon on the ground.158 Later, however, he

conceded that immediately after the shooting, he told the police that he saw his

father pull out a gun.159 But he again denied actually seeing it.160

      Juan testified that he was struggling with the person at the truck, and he

never saw Limon approach with his gun.161 But he heard his brother say, “U.S.

Customs. Please put the gun down.”162 Juan asserted that Elizondo asked twice for

Limon to put the gun down.163 Juan testified that he feared for his life and tried to

hide himself, and then he heard some shots.164 He explained that he heard Elizondo

fire two shots, but he did not know whom Elizondo was shooting at.165 Then shots

were fired back at Juan and Elizondo.166

      Maria testified that when she got to Elizondo’s truck, he was already

standing outside by the door.167 She said there were several security guards at the

truck. 168 She testified that one of the men had a pistol and was pointing it at


156
      15RR240.
157
      15RR240; 16RR38.
158
      15RR242.
159
      16RR41.
160
      16RR42-44.
161
      15RR16.
162
      14RR250; 15RR15-17.
163
      15RR17.
164
      14RR251; 15RR18.
165
      14RR249-50.
166
      14RR252.
167
      15RR137.
168
      15RR137-38.

                                           18
Elizondo.169 She stated that she was very scared.170 She believed the man wanted to

fire the gun.171 She testified that if the person had shot the gun, the bullet would

have hit her and also Elizondo.172 Maria explained that Elizondo told the man to

“[l]ower your weapon.”173 She then heard Elizondo shoot his gun.174

       Elizondo told Trooper Champion that he warned the Punto 3 employees he

was U.S. Customs and told them to get back. 175 They refused to comply and

continued to come after him.176 He saw Limon reach behind his back and observed

what he thought was a gun.177

       According to Trooper Champion, right after the shooting, Elizondo told him

that he went to his vehicle and got his gun, and thereafter he stated that he was

“U.S. Customs and Border Protection and that he pointed the gun.”178 He said that

“when he pointed the gun he saw the victim reach behind his back, I believe is

what he said; he pulled out what he believed was a gun and he shot him; and then




169
        15RR138, 152.
170
        15 RR152.
171
        15RR152.
172
        15RR153.
173
        15 RR140. Maria testified that the other man with the gun shot at her and Elizondo, and
she felt dirt flying on her feet. 15 RR141, 154.
174
        15 RR143.
175
        13RR16.
176
        13RR16.
177
        13RR16, 68.
178
        12RR180.

                                              19
he told me—I believe he said three times or I believe he said he shot three times at

the subject.”179

      At trial, Elizondo testified that he told Limon two times that he was “U.S.

Customs” and to “throw the gun.” 180 But Limon did not lower his weapon. 181

Elizondo then shot twice.182 Elizondo explained that he fired once, but he did not

see any reaction from Limon.183 Elizondo thought he missed, so he shot a second

time.184

5.    Testimony on the reasonableness of Elizondo’s conduct.
      Ricardo Balli, Jr. testified that he was a former police officer and was then

an agent for the Texas Alcoholic Beverage Commission.185 Agent Balli testified

that, if a law enforcement officer went to a bar, he was legally entitled to take his

government-issued weapon and either carry it on him or leave it in his vehicle.186

He agreed it would still be legal to carry the weapon if the officer was off duty and

had a few drinks, as long as the officer did not become intoxicated.187

      In Elizondo’s statement to police, he explained that he became scared

outside the club because the security guards were “not trying to push me away like

179
      12RR181.
180
      16RR206.
181
      16RR206.
182
      16RR214.
183
      16RR214-15.
184
      16RR215.
185
      17RR40.
186
      17RR45-47.
187
      17RR47-48.

                                         20
security guards would do. The men were attacking me, and I just thought I need to

get away from them before they take me to the ground.”188 So he ran to his truck.189

Elizondo was aware that the men were chasing him, and he could feel them

punching at him and kicking at his feet and could hear them yelling at him.190

      Elizondo told the police that he was scared for his life, and he tried to run

away, but the Punto 3 employees were continuing to assault him and followed him

to his truck.191 Trooper Champion testified that Elizondo told him that he was in

fear of his life because he was being attacked.192 Elizondo testified at trial that at

the point he was being chased, it was a deadly situation for him because he “had

four guys chasing me. We know four guys can kill you if they kick you enough or

punch you enough.”193 He explained, “My previous experience as a police officer

and from your own cases where two, three people can beat you up—can beat you

down to death. Yes. So I felt the need to grab the weapon, yes.”194

      On the way to his truck, Elizondo unlocked the door. 195 He got inside,

grabbed his gun, and then he felt someone grab him and pull him out of the

truck.196 He came out of the truck swinging and hit the man.197


188
      16RR113; 21RRDX21.
189
      16RR113; 21RRDX21.
190
      16RR113; 21RRDX21.
191
      12RR180; 13RR15, 66, 68.
192
      12RR178, 180.
193
      17RR19.
194
      17RR21.
195
      16RR114; 21RRDX21.

                                         21
      At that point, Juan grabbed the man, and Elizondo then saw Limon pointing

the gun at him.198 Elizondo told police that he was scared that if Limon had a gun,

the other men had guns as well.199 He warned Limon that he was a “United States

Customs Agent” and told him to put the gun down twice. 200 Elizondo thought

Limon was going to shoot him, particularly because Limon had “chased him all the

way to the parking lot away from the business,” Elizondo had “already been

assaulted at the front of the club,” and Elizondo had been pulled out of his truck.201

Elizondo testified he felt that he had no other choice but to shoot Limon, because

Limon was going to shot him.202

      Investigator Max Cantu testified that if someone is pointing a loaded gun at

another person, it means that the person is willing to kill.203 He testified that if

someone pointed a gun at him, he would be in fear of his life, and if he asked the

person to put the gun down but the person refused, it would concern him.204

      At first, Investigator Cantu opined that Limon had a right to protect his

patrons, his business, and himself.205 He agreed, however, that Limon had followed


196
      16RR114; 21RRDX21.
197
      16RR114; 21RRDX21.
198
      16RR114; 21RRDX21.
199
      16RR114; 21RRDX21.
200
      16RR114; 21RRDX21.
201
      16RR207.
202
      16RR209.
203
      16RR129.
204
      16RR129.
205
      16RR135.

                                         22
Elizondo to his truck, at a distance of over 60 yards. 206 With respect to his

business, once presented with the Texas Penal Code provisions regarding deadly

force to protect property, Investigator Cantu agreed they did not apply. 207

Investigator Cantu then backtracked and clarified that he only meant that Limon

had the right to carry the weapon at his business, not to use deadly force that

night. 208 Investigator Cantu testified that if a customer pulled out a gun at a

business, the business owner could protect his customers. 209 He further testified

that if someone was hitting his son with a blunt object, he would protect that

person.210

      Investigator Cantu explained that peace officers are trained that when firing

a pistol at someone, they aim for “center mass.”211 In other words, if a person is

pointing a weapon at a peace officer, the officer is not trained to shoot them in the

leg to wound the person. 212 And he agreed there was nothing in the law that

requires a person to try to merely wound another person if using deadly force in




206
      16RR136.
207
      16RR142-43.
208
      16RR143.
209
      16RR151.
210
      16RR151.
211
      16RR153.
212
      16RR153-54.

                                         23
self-defense.213 Elizondo likewise testified that he was trained to shoot through the

abdominal and chest area, or “center mass.”214

      Trooper Champion testified that when he first approached Elizondo, he saw

Elizondo as a threat, even though Elizondo did not have his gun pointed at him,

and so Trooper Champion pointed his pistol at Elizondo.215 And, he agreed that

threat would be a “lot more serious” if Elizondo had “lifted that gun and pointed it”

at him.216 In other words, pointing a gun at someone is a serious threat.

6.    The trial court submits a provocation instruction over
      Elizondo’s objection and submits a self-defense charge that is
      inaccurate and incomplete.
      Initially, the jury charge instructed the jury on the presumption of

reasonableness, as follows:

      The actor’s belief that the deadly force was immediately necessary is
      presumed to be reasonable if the actor:

      (1)    knew or had reason to believe that the person against [sic]
             deadly force was used was committing or attempting to commit
             murder; and
      (2)    did not provoke the person against whom the force was used,
             and
      (3)    was not otherwise engaged in criminal activity, other than a
             Class C misdemeanor that is a violation of law or ordinance
             regulating traffic at the time the force was used.217


213
      16RR154.
214
      16 RR213-14.
215
      12RR200.
216
      12RR199-200.
217
      2Supp.CR3.

                                         24
Elizondo’s trial counsel did not object to this language in that it fails to track Texas

Penal Code section 9.32 by omitting reference to two other applicable
                                                                                     218
circumstances where the presumption of reasonableness could arise.

Specifically, the instruction only included a presumption of reasonableness when

the actor believed that the person against whom deadly force was used was

committing or attempting to commit murder, while section 9.32 also provides a

presumption of reasonableness when the actor believes the other person was

unlawfully and with force entering or attempting to enter the actor’s vehicle, or

removing or attempting to remove the actor from his vehicle.219

      Additionally, the jury charge did not instruct on the law of multiple

assailants, nor did it include language regarding the threat of deadly force by

production of a weapon as discussed in Texas Penal Code section 9.04. 220

Elizondo’s trial counsel likewise did not object to these omissions from the jury

charge.221

      Rather, Elizondo’s trial counsel objected that the language regarding

provocation should not be included.222 He argued that even assuming there was

provocation, it was not directed at Limon, and the evidence admitted at trial did not



218
      See generally 17 RR.
219
      TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B).
220
      2Supp.CR2-8.
221
      See generally 17 RR.
222
      17RR64.

                                          25
support a provocation instruction. 223 The Court overruled that objection and

included the following instruction in the charge:

            You are further instructed as part of the law of this case, and as
      a qualification of the law on self-defense, that the use of force by a
      defendant against another is not justified if the defendant provoked the
      other’s use or attempted use of unlawful deadly force, unless (a) the
      defendant 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 person, nevertheless,
      continues or attempts to use unlawful force against the defendant.

             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.224

Notably, in this instruction, the jury was not told to find against Elizondo on the

issue of self-defense if they found provocation; instead, they were instructed to




223
      17RR64.
224
      2Supp.CR5-6 (emphasis added).

                                         26
find Elizondo guilty of murder.225 Elizondo’s trial counsel did not object to the

language directing the jury to find Elizondo guilty.226

7.     The jury finds Elizondo guilty, and sentences him to twenty-
       five years in prison.
       The jury found Elizondo guilty of murder, rejecting his self-defense

arguments. 227 The jury then heard evidence on punishment, and it assessed

punishment at twenty-five years’ imprisonment in the Texas Department of

Criminal Justice Institutional Division, with no fine.228

8.     The Court of Appeals affirms.
       The court of appeals acknowledged the essentially undisputed 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. 229 The court held that an alleged

statement by Elizondo after he had already started to flee the difficulty and after

the men initiated a chase to his vehicle provoked the second altercation,


225
        Id.
226
        See generally 17 RR. The undersigned counsel inadvertently asserted in the petition for
discretionary review that trial counsel objected to this language in the jury charge. The error was
based on the court of appeals’ erroneous holding that an objection was made, and the
undersigned counsel did not notice the error until preparing this Brief on the Merits. The
undersigned counsel has filed a motion for leave to amend the petition for discretionary review
to correct the error, and profusely apologizes to the Honorable Court for the oversight.
227
        2Supp.CR9.
228
        2Supp.CR14.
229
        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).

                                                27
undermining Elizondo’s self-defense justification.230 The court, however, did not

analyze the elements of provocation with respect to these statements.231

      The court of appeals also rejected Elizondo’s arguments relating to the jury

charge. 232 First, the court of appeals held that the trial court properly gave a

provocation instruction.233 The court opined:

             Here, there was some evidence to show that Elizondo provoked
      the fight. [Rodrigo] testified that Elizondo told Junior, “Don't
      disrespect my woman, you son of a bitch” and “Well, son of a bitch,
      are you going to calm down or not?” Junior stated that Elizondo called
      him a “pendejo ” or “dumbass.” Then, both Rigo and Junior testified
      that Elizondo swung, hitting Limon, Sr. These words and actions
      constituted “some” evidence that Elizondo provoked the first
      difficulty.

             As noted earlier, however, the provocation doctrine is limited if
      the defendant abandoned the difficulty. Elizondo argues he
      “abandoned” the encounter by running from the difficulty outside the
      bar to his pickup truck, nearly seventy yards away. Therefore, he
      contends that the provocation instruction was improper. To achieve
      the abandonment caveat to the provocation doctrine, though, 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 has passed, and make his conduct thereafter the pursuit
      of vengeance rather than measures to repel the original assault.’”
      Further, “the abandonment of the 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.”

            While it is undisputed by all of the witnesses that Elizondo ran
      nearly seventy yards away from the first difficulty, Junior testified

230
      Id.
231
      Id.
232
      Id. at *7-10.
233
      Id. at *7-8.

                                        28
      that Elizondo was yelling, “Van a ver,” roughly translated as “You
      will see,” while running. Junior testified that he believed that
      Elizondo's words constituted a threat to the others, which made Junior
      scared. These words did not communicate to Junior that the danger
      had passed. Further, the jury was presented with Elizondo's statement
      to the police which provided that he “ran towards [his] truck where
      [he] had [his] duty issued H & K 40 Caliber handgun.” This evidence
      supports a rational inference that Elizondo was running to his truck
      for a weapon, not to escape the fight. Accordingly, we find that a
      reasonable jury could have surmised that Elizondo did not abandon
      the first encounter, and that the provocation instruction was therefore
      merited.

            We conclude that the trial court did not err when it submitted
      the provocation instruction to the jury because there was sufficient
      evidence to raise this issue. Because we have found no error, no harm
      analysis is required. We overrule this issue.234

      Second, the court of appeals held that while it was error for the jury charge

not to include all the presumptions of reasonable force as provided in section 9.32,

the error did not cause egregious harm.235 The court explained:

             Elizondo also argues that the trial court erred when it failed to
      include all of the presumptions of reasonable force as provided by
      section 9.32 of the penal code. The jury charge only provided that a
      presumption of reasonableness would arise if Elizondo “knew or had
      reason to believe that the person against [whom] deadly force was
      used was committing or attempting to commit murder.” Elizondo
      argues that two additional scenarios should have been added to the
      charge. First, where the actor knew or had reason to believe an
      assailant “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 second, where the
      actor “(B) unlawfully and with force removed, or was attempting to


234
      Id. at *8 (internal citations omitted).
235
      Id. at *8-9.

                                                29
      remove unlawfully and with force, the actor from the actor's
      habitation, vehicle, or place of business or employment.”

            Elizondo complains that he knew or had reason to believe that
      Junior unlawfully and with force pulled him out of his pickup truck,
      or was attempting to do so. He stated that Junior's banging on
      Elizondo's driver's side window yelling “Get off asshole” meant that
      he was entitled to those instructions.

             We agree that the evidence in the record warranted the
      inclusion of these instructions. Accordingly, we hold that the trial
      court erred by omitting them. Having found error, though, we do not
      find any egregious harm. Because we previously concluded that a
      reasonable 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, see section III(B)(1) supra, these extra
      instructions would not have affected the outcome. We overrule this
      issue.236

      Third, the court held that the trial court erred by instructing the jury that if

the court found provocation, it should find Elizondo guilty of murder (instead of

instructing the jury that it should reject the self-defense argument). 237 As

referenced in footnote 226 of this brief and in the motion for leave to amend the

petition for discretionary review filed by the undersigned counsel, the court of

appeals erroneously concluded that this error was preserved by objection in the

trial court. The court found the error was harmless, but nevertheless did not

analyze all the Almanza factors:

      Having found error, we turn to a harm analysis. To determine if
      Elizondo suffered some harm by this incorrect instruction, we

236
      Id.
237
      Id. at *9.

                                         30
      consider “the entire jury charge, the state of the evidence, including
      the contested issues and weight of probative evidence, the argument
      of counsel and any other relevant information revealed by the record
      of the trial as a whole.” Upon a thorough review of the trial record and
      jury charge, though, we find no harm. From voir dire to closing
      arguments, the jury was repeatedly instructed that it was the State's
      burden to prove that Elizondo committed murder. The jury charge
      reinforced this tenet. In light of the foregoing, we hold that the error
      was harmless and overrule this issue.238

      Finally, the court rejected Elizondo’s arguments relating to instructions on

“threats as justifiable force” and multiple assailants, holding that under this Court’s

decision in Posey v. State,239 Elizondo waived the right to these instructions by

failing to request them.240

      Elizondo petitioned this Court for discretionary review, raising three

grounds. The first ground asked the Court to find, as a matter of law, that Elizondo

sufficiently abandoned the first altercation by fleeing nearly 70 yards to his truck,

which was the only reasonable place to run under the circumstances. This Court

did not request briefing on that issue. Elizondo can only assume that the Court

agrees with the argument in his petition for discretionary review regarding the first

ground presented.

      The second ground asked the Court to hold that the court of appeals should

have completed a full evaluation of the elements of provocation under Smith v.


238
      Id. (internal citations omitted).
239
      966 S.W.2d 57, 62 (Tex. Crim. App. 1998).
240
      Elizondo, 2014 WL 222834, at *10.

                                           31
State with respect to the second altercation, and that Elizondo should have been

acquitted upon completion of that analysis. The third ground asked the Court to

review the court of appeals’ analysis of the jury charge errors. This Court

requested briefing on only the second and third grounds.

                    SUMMARY OF THE ARGUMENT
       The court of appeals failed to analyze all the elements of Smith v. State with

respect to provocation of a second altercation, after abandonment of an initial

altercation. 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. Elizondo was outnumbered

during this initial altercation, and he feared for his life. The undisputed evidence

shows that Elizondo fled the first difficulty by running nearly seventy yards to his

truck and getting inside the vehicle.

      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. Once at the truck, Elizondo was forcefully removed from it and

engaged in a second altercation with the men. As part of this second altercation,

the club’s owner, Limon, 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’s death.


                                         32
      Under Smith v. State, the court of appeals should have reviewed whether

Elizondo did some act or used some words which provoked the second altercation,

whether his acts or words were reasonably calculated to provoke the attack, and

whether the act was done or the words were used for the purpose and with the

intent that Elizondo would have a pretext for harming another.

      A thorough analysis shows that Elizondo did not actually provoke the

second attack by stating, “Van a ver.” Those words were spoken after Elizondo

attempted to flee the initial altercation, but the Punto 3 employees were already

engaged in a chase. Additionally, there was nothing to show that these words were

reasonably calculated to provoke the attack, or that they were spoken for the

purpose and with the intent Elizondo would have a pretext for harming another.

This Court should engage in the analysis, or remand to require the court of appeals

to do so.

      Additionally, the court of appeals affirmed on a jury charge that was replete

with harmful errors.     First, there was no evidence to justify a provocation

instruction with respect to the second altercation.

      Second, the court of appeals erroneously held that two omissions from the

charge—relating to threats of deadly force and the law of multiple assailants—

were waived, refusing to review the omissions for egregious harm. This holding is

contrary to this Court’s decisions in Barrera v. State and Vega v. State that once a


                                          33
trial court charges on a defensive issue, but fails to do so correctly, this is charge

error subject to review under Almanza. This Court should recognize these errors as

reviewable and apply the egregious harm standard.

      Third, the jury charge contained an incomplete instruction on the

presumption of reasonableness, and an erroneous provocation instruction that

decreased the State’s burden of proof. The court of appeals, however, wholly

failed to analyze the Almanza factors to determine whether Elizondo suffered the

requisite degree of harm.

      Analyzing the Almanza factors with respect to this woefully deficient jury

charge shows that Elizondo suffered the requisite degree of harm from the errors

and was deprived of his ability to adequately present his only defense.

Accordinlgy, he should receive a new trial.

                                   ARGUMENT
I.    The court of appeals should have analyzed all the elements of
      Smith v. State.
      Elizondo specifically argued below that the first and second altercations

should be distinguished based on the timing of the events, that the first altercation

was abandoned when he ran to nearly 70 yards and got inside his vehicle, and that

there was no evidence he said or did anything sufficient to provoke the second

attack as a pretext to kill Limon. Rejecting Elizondo’s arguments in one short

paragraph, the court below held:

                                         34
              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.241

The court of appeals’ analysis glossed over the distinction between the two

altercations and failed to conduct an analysis under this Court’s decision in Smith

v. State.242 Analyzing the facts of this case under that framework, Elizondo should

have been acquitted. This Court should perform the analysis the court of appeals

improperly refused to perform.

      In Smith, this Court addressed the doctrine of “provoking the difficulty,”

which it initially defined as follows:

             Provoking the difficulty, as the doctrine of provocation is
      commonly referred to in our jurisprudence, is a concept in criminal
      law which acts as a limitation or total bar on a defendant’s right to
      self-defense. The phrase “provoking the difficulty” is a legal term of
      art, and more accurately translates in modern usage to “provoked the
      attack.” 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


241
      Elizondo, 2014 WL 222834, at *6 (citations omitted).
242
      965 S.W.2d 509, 512 (Tex. Crim. App. 1998).

                                            35
      killing the other under the guise of self-defense, the defendant forfeits
      his right of self-defense.243

The Court specifically addressed the elements of provocation, explaining that for

the factual issue to be raised, the State must show:

       (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.244

Applying this analytical construct to the facts, the State must have shown that

Elizondo performed some act or used words that actually provoked the second

attack, the words or acts were the type that would ordinarily provoke an attack, and

Elizondo intended to provoke the second attack to have a pretext for killing

Limon.245

      A.     There was no evidence that Elizondo performed some act
             or used words that actually provoked the second attack.
      The evidence in this case showed that Elizondo fled from the initial

altercation and ran to his truck—the only reasonable location to flee given that

Elizondo’s wife was still at the club—only to be pursued by multiple assailants


243
      965 S.W.2d at 512.
244
      Id.
245
      See id.

                                         36
over a long distance in pursuit of vengeance. The evidence showed that the words,

“Van a ver,” could not have actually provoked the second altercation.

      As this Court has held, “[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.”246 And as early as 1918, this

Court in Trevino v. State held that the acts alleged to have provoked an altercation

must occur prior to and actually cause the altercation. 247 There, the Court

explained:

              Provoking a difficulty is always in direct conflict with
      justifiable homicide, and is not permissible unless the accused by his
      acts, conduct, or words occasioned or produced the difficulty. When
      perfect self-defense is relied upon by the accused, there should be, as
      a prerequisite to its impairment, evidence that the accused produced
      the occasion for the killing as an excuse for the homicide. His acts,
      conduct, or words must precede such condition, and must be
      evidenced by the testimony. This is the law under correct legal views
      and under the well-considered jurisprudence of this state. These facts
      must precede and lead to the homicide. If the difficulty does not so
      begin, provoking the difficulty is not a part of the case, and a charge
      limiting the right of perfect self-defense would constitute error, and of
      such a nature as to constitute its giving necessarily fatal to the
      conviction.

      ….

           We are of opinion that this testimony does not raise the issue of
      provoking the difficulty. Usually the language that some of the

246
      Smith, 965 S.W.2d at 512 (emphasis added).
247
      Trevino v. State, 83 Tex. Crim. 562, 565, 204 S.W.2d 996, 997-99 (1918) (op. on reh’g).

                                             37
       witnesses impute to defendant, that deceased was the “son of a
       harlot,” would be considered a provocation, and had it been used at
       the beginning of this difficulty and the inducing cause, it would have
       been treated as a cause upon which provoking a difficulty could be
       grounded. But, as before stated, provoking a difficulty must precede
       and be the occasion of bringing about the difficulty. 248

       As an additional example, in Reeves v. State, the First Court of Appeals held

that threats made after an altercation was already in progress could not have

provoked the attack.249 Specifically, the court held:

              The State argues that a rational jury could have found beyond a
       reasonable doubt that Reeves did or said something that caused
       Jackson to attack him and that those words or acts were reasonably
       capable of causing an attack based upon both direct and circumstantial
       evidence. Although Adams testified that Reeves threatened to kill
       Jackson, Reeves did not make those threats until after the fighting had
       started. Similarly, Reeves testified that when he and Jackson were
       wrestling in the front yard, Jackson pinned him to the ground at one
       point, and he bit Jackson on the face in order to get free. Based upon
       this uncontroverted testimony, both Reeves's threat and the bite
       occurred after he and Jackson were physically fighting in the front
       yard. Such threats and conduct could not have provoked a fight that
       was already in progress.250

       Thus, actual provocation would be a necessary element of any claim by the

State that Elizondo provoked the second altercation. In other words, the State

would have to show that Elizondo’s words, allegedly spoken while Elizondo was



248
       Id.
249
       Reeves v. State, No. 01-10-00395-CR, 2012 WL 5544770, at *4 (Tex. App.—Houston
[1st Dist.] Nov. 15, 2012) (mem. op., not designated for publication), aff’d, 420 S.W.3d 812
(Tex. Crim. App. 2013); (15 RR 235 (stating that upon hearing those words, Junior continued
chasing Elizondo, but slowed down)).
250
       Id.

                                            38
abandoning the first altercation, actually provoked the second altercation.251 Given

the sequence of events, the State failed that burden.

      It was undisputed that Elizondo ran through the parking lot, around the

fence, and to his vehicle, and Bryan, Rodrigo, and Junior chased Elizondo the

entire distance, which was approximately 67 yards.252 During the chase, Rodrigo

was yelling at Elizondo to “stop asshole.”253

      The only testimony regarding the initial reason for the chase came from

Junior, who claimed that he followed Elizondo to his truck to make sure he left

safely, which is totally consistent with Elizondo’s abandonment of the first

altercation.254 And, Elizondo expressly testified that he ran to his truck to get away

from his attackers and got inside the vehicle.255 Yet upon arriving at the truck and

discovering Elizondo inside it, Junior did not then just make sure that Elizondo

left—he admitted to pounding on Elizondo’s vehicle with his hands, and other

witnesses testified that Junior was also yelling, “Get off, asshole.” 256 In fact,

Rodrigo testified that Junior was trying to get Elizondo to come out of his truck

because Elizondo was already inside.257


251
      See Mendoza v. State, 349 S.W.3d 273, 280-81 (Tex. App.—Dallas 2011, pet. ref’d).
252
      11 RR 95; 12 RR 178, 180; 13 RR 15, 26, 66; 14 RR 102-03,126, 235; 15 RR 133-34; 15
RR 233; 16 RR 113, 197; 21 RR DX 21.
253
      14 RR 102, 126.
254
      16 RR 9-10, 25.
255
      16 RR 113-14; 21 RR DX 21.
256
      13 RR 149, 179; 14 RR 104, 105; 15 RR 42; 16 RR 19.
257
      15 RR 80.

                                           39
      Junior testified that while Elizondo was running away, Elizondo said the

words, “Van a ver” (in English, “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.258 Thus, those words did not actually provoke the pursuit of

Elizondo by Rodrigo, Bryan, and Junior, which was already underway.

Accordingly, the State’s evidence did not show that any words by Elizondo

actually provoked the second attack.

      B.       There was no evidence that the words “Van a ver” were
               reasonably calculated to provoke an attack or that the
               words were used for the purpose and with intent to
               provide a pretext.
      There simply was no showing that the words, “Van a ver,” were reasonably

calculated to provoke an attack or used for the purpose and with the intent to

provide Elizondo with a pretext for inflicting harm upon Junior or Limon.259 “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.”260




258
      15 RR 235.
259
      Smith, 965 S.W.2d at 512.
260
      Smith, 965 S.W.2d at 517

                                         40
       For example, this Court has held that calling a deceased a “son of a bitch”

could reasonably be calculated to cause an attack. 261 Express threats to kill the

complainant, 262 calling the complainant a derogatory name while grabbing the

complainant’s arm with force,263 approaching the complainant while pointing a gun

and yelling obscenities,264 have all been held to be reasonably capable of causing

an attack.

       In contrast, this Court in Morrison v. State held that where words on their

face do not appear sufficient to provoke a difficulty, the State must introduce

evidence of the colloquial meaning. 265 For example, in that case, the Court

interpreted a request to discuss a matter “man for man,” and whether those words

were reasonably capable of causing a difficulty. The Court held that “[w]hile it is

true that words alone may provoke a difficulty, they must clearly be designed to do

so. . . . Without any testimony in the record as to the meaning commonly given


261
        Bateson v. State, 46 Tex. Crim. 34, 46, 80 S.W. 88, 93 (1904).
262
        Malone v. State, No. 06-11-00013-CR, 2011 WL 5221264, at *8 (Tex. App.—Texarkana
Nov. 3, 2011, no pet.) (mem. op., not designated for publication).
263
        Osborne v. State, No. 02-11-00010-CR, 2011 WL 5903651, at *3 (Tex. App.—Fort
Worth Nov. 23, 2011, no pet.) (mem. op., not designated for publication) (“Further, the trial
court could have rationally found that appellant's words and acts (approaching Aaron, calling her
a ‘bitch’ and yelling ‘more things,’ and grabbing her arm with ‘force’) were reasonably
calculated to provoke Aaron's attack.”); see, e.g., Guerra v. State, No. 13-99-036-CR, 2000 WL
34251905, at *2 (Tex. App.—Corpus Christi Aug. 17, 2000, no pet.) (not designated for
publication) (“Calling someone a bad name, threatening that person, and throwing rocks at the
person's vehicle are acts which are reasonably capable of causing an attack, or have a reasonable
tendency to cause an attack.”).
264
        Clark v. State, No. 04-13-00330-CR, 2014 WL 3843946, at *7 (Tex. App.—San Antonio
Aug. 6, 2014, pet. ref’d) (mem. op., not designated for publication).
265
        Morrison v. State, 158 Tex. Crim. 424, 425, 256 S.W.2d 410, 411 (1953).

                                               41
such expression in the community involved in the prosecution, we are powerless to

read into such expression something not apparent on its face.”266

      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. 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. Yet, once he discovered Elizondo already inside the vehicle, he

banged on the window to get him out of the truck.

      Additionally, there was nothing presented that showed that Elizondo

intended to do anything other than escape the attack by running to his truck. As

this Court explained in Smith,

             [t]he third element of the doctrine requires 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 killing the victim. Even though
      a person does an act, even a wrongful act, which does indeed provoke
      an attack by another, if he had no intent that the act would have such
      an effect as part of a larger plan of doing the victim harm, he does not
      lose his right of self-defense.267




266
      Id.
267
      Smith, 965 S.W.2d at 518.

                                        42
There is simply nothing to support a finding that Elizondo intended his words or

actions to provoke Junior into a further fight or Limon into 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.”268 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—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.”269 The statement relied upon by the court of appeals can only support its

decision when taken completely out of context.

      For all the foregoing reasons, the evidence was legally insufficient to

support a finding that Elizondo provoked the second altercation. The evidence

showed that Elizondo was entitled to the presumption of reasonableness in Texas

Penal Code 9.32(b)(1)(A) and (B), given that Junior indisputably either (A)

unlawfully and with force entered, or was attempting to enter unlawfully and with

force, Elizondo’s occupied vehicle; or (B) unlawfully and with force removed, or

was attempting to remove unlawfully and with force, Elizondo from his vehicle.

268
      Elizondo, 2014 WL 222834, at *6; see 21RRDX21.
269
      21RRDX21.

                                         43
Under the law of multiple assailants, the permissive use of deadly force by Jose

against Junior justified his use of deadly force against Limon. 270 The court of

appeals did not complete its legal sufficiency analysis because it stopped with

provocation.271

       This Court should conduct the Smith analysis, complete the remaining

analysis of legal sufficiency of the evidence, and render a judgment of acquittal.272

At the very least, this Court should remand to the court of appeals for further

analysis under Smith.273

II.    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

law that is already confusing, at best. Elizondo raised five 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.’”274




270
        Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985).
271
        Elizondo, 2014 WL 222834, at *6.
272
        TEX. R. APP. P. 78.1(c) (providing Court can “ reverse the court's judgment in whole or in
part and render the judgment that the lower court should have rendered).
273
        TEX. R. APP. P. 78.1(d).
274
        Reeves, 420 S.W.3d at 817.

                                               44
      A.     The court of appeals erroneously affirmed the trial
             court’s submission of a provocation instruction.
      A provocation instruction should be submitted to the jury only when “there

is evidence from which a rational jury could find every element of provocation

beyond a reasonable doubt.” 275 As demonstrated in Part I, there was simply no

evidence of provocation. The evidence showed that, under the law of provocation,

Elizondo sufficiently abandoned the first encounter by running away to and getting

inside his truck. 276 The evidence in this case did not show a mere change of

position of the parties during the progress of the encounter. Rather, it showed

Elizondo fleeing from the initial altercation and running to his truck, only to be

pursued by multiple assailants over a long distance in pursuit of vengence.277 And

there was no evidence that Elizondo provoked the second altercation, which was

initiated by Junior. For all the reasons set forth in Part I of this brief, the Court

should find that there was no evidence of provocation of the second altercation to

support submission of that instruction to the jury.

      Where the defendant objects to the inclusion of a provocation instruction,

and there is no evidence to support the submission, the reviewing court must




275
       Smith, 965 S.W.2d at 514.
276
       12 RR 178, 180; 13 RR 15, 26, 66; 14 RR 126, 235; 15 RR 133-34; 15 RR 233; 16 RR
113, 197; 21 RR DX 21.
277
       11 RR 95; 12 RR 178, 180; 13 RR 15, 26, 66; 14 RR 102-03,126, 235; 15 RR 133-34; 15
RR 233; 16 RR 113, 197; 21 RR DX 21.

                                           45
reverse if the erroneous submission of the instruction caused some actual harm. 278

When considering harm, the issue for the court is “whether, in the absence of the

provocation instruction, there would have been any chance that the jury would

have found that [appellant] acted in self defense.”279 Because the court of appeals

held there was no error in the charge by submitting a provocation instruction, it did

not reach the question of harm.280 This Court should conduct the analysis or, at the

very least, remand to the court of appeals for consideration of the harm. Certainly,

as more fully demonstrated below, Elizondo suffered at least some harm from the

inclusion of this erroneous charge.

      B.     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

threats as justifiable force and on the law of multiple assailants.




278
       See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);
Mendoza, 349 S.W.3d at 281-84.
279
       Mendoza, 349 S.W.3d at 281 (quoting Flores v. State, No. 06-05-00023-CR, 2008 WL
41388, at *4 (Tex. App.—Texarkana Jan. 3, 2008, pet. ref’d) (mem. op., not designated for
publication)).
280
       Elizondo, 2014 WL 222834, at *7-8.

                                           46
      The jury charge did not provide an instruction on section 9.04, regarding a

threat of deadly force by production of a weapon.281 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 stop.282

      Additionally, the jury charge omitted any reference to the law of multiple

assailants, instead instructing the jury with reference only to Limon’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.283 There was certainly

evidence in the record that multiple attackers were pursuing Elizondo.284 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.”285

      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.286


281
        See TEX. PENAL CODE ANN. § 9.04.
282
        16RR200-201; see Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st
Dist.] 2012, no pet.).
283
        Frank, 688 S.W.2d at 868; Lerma v. State, 807 S.W.2d 599, 601 (Tex. App.—Houston
[14th Dist.] 1991, pet. ref’d).
284
        17RR19, 21.
285
        2Supp.CR3.
286
        Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998).

                                          47
The Court held that where a self-defense instruction contains an error to which

counsel did not object—in that case a complete omission of an application

paragraph—the error is subject to review for egregious harm.287

      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.”288

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.289 The court erroneously

refused to review these errors or apply a harm analysis. This Court should correct

that error, determine the charge was erroneous, and apply the appropriate harm

standard. At the very least, the Court should remand to the court of appeals to

conduct the harm analysis.




287
      Id. at 417.
288
      Vega v. State, 394 S.W.3d 514, 518-19 (Tex. Crim. App. 2013) (emphasis added).
289
      Elizondo, 2014 WL 222834, at *10.

                                           48
      C.    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.

      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.”290 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.” 291 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




290
      2Supp.CR3.
291
      TEX. PENAL CODE ANN. § 9.32 (b)(1)(A)-(B).

                                          49
was attempting to do so.292 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.293

      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.294 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.295

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



292
       12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134; 15RR233; 16RR113,
197; 21RRDX21.
293
       Elizondo, 2014 WL 222834, at *9.
294
       2Supp.CR6.
295
       2Supp.CR5-6 (emphasis added).

                                         50
elements of murder. In fact, the jury was required to find all the elements of

murder and reject self-defense in order to convict. 296 Defense counsel did not

object to this error, and the court of appeals erroneously held the error was

preserved, but it ultimately held there was no harm.297

       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.298 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.”299 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.300

       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.”301 Those

“repeated” instructions were completely undermined by the instruction that if it

296
         Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
297
         Elizondo, 2014 WL 222834, at *9; see supra n.226.
298
         Id.
299
         Id.
300
         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.”).
301
         Elizondo, 2014 WL 222834, at *9.

                                             51
rejected provocation, the jury must find Elizondo guilty of murder, yet the court of

appeals did not address that argument.

      D.     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 from the errors identified

above. 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.”302

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.303




302
      Reeves, 420 S.W.3d at 819.
303
      Id. at 816, 819.

                                           52
       Here, as in Reeves, the jury charge contained numerous errors and was

incomplete.304 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.305 All the witnesses testified that, at the very least, Junior was beating on

Elizondo’s car and trying to force him to come out. 306 But the jury was never

instructed that, if it believed those facts, a presumption of reasonableness could

arise.307 Instead, in order to raise the presumption, they were instructed that they




304
         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 (2013).
305
       12RR180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134, 233; 16RR113, 197, 201-203;
21RRDX21.
306
       13RR149, 179; 14RR104-105; 15RR42, 80, 237; 16RR29.
307
       2Supp.CR.3.

                                                 53
had to find that Elizondo knew or had reason to believe that Limon was

committing or attempting to commit “murder.”308

      This is not a case where all the witnesses but the defendant testified in

accordance with the State’s theory, as in this Court’s recent decision in Villarreal

v. State. 309 Here, the self-defense justification was more than plausible—it was

supported by numerous witnesses, including testimony from Elizondo, Juan,

Maria, and Agent Balli.310 Nor is the evidence “overwhelming” that Elizondo was

the aggressor with respect to the second altercation, and Limon was clearly

armed.311

      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. 312 Instead, all of the language in the charge referred to

Limon’s conduct alone. 313 Under these circumstances, the jury charge failed to

adequately protect Elizondo’s right to argue self-defense.314

      Second, any evidence of guilt was not so overwhelming that the jury charge

errors necessarily caused no harm to Elizondo.315 But nevertheless, the jury was


308
      Id.
309
      No. PD-0332-13, 2015 WL 458146, at *5 (Tex. Crim. App. Feb. 4, 2015).
310
      See supra Parts 1C, 2-5 and footnotes referenced therein.
311
      Compare Villarreal, 2015 WL 458146, at *5-6.
312
      2Supp.CR.3.
313
      Id.
314
      See Brown v. State, 651 S.W.2d 782, 784 (Tex. Crim. App. 1983).
315
      Mendoza, 349 S.W.3d at 282.

                                          54
not only instructed to disregard Elizondo’s self-defense if it found provocation, it

was instructed to find Elizondo guilty of murder.316 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.

      Furthermore, self-defense was the focus of the entire case.317 Specifically,

Elizondo’s sole defense centered on the following: (1) he abandoned the difficulty

by running to his truck;318 (2) the club’s bouncers chased Elizondo to his truck

yelling obscenities with the intent to continue an attack on Elizondo;319 (3) Junior

then banged on Elizondo’s window to get him out of the truck;320 (4) Elizondo was

pulled out of his truck (or an attempt was made to do so), and then Limon pointed

a gun at him.321 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).

            ....
316
      Cf. id.
317
      See 17RR82.
318
      17RR89.
319
      17RR90-92.
320
      17RR95-96.
321
      17RR98.

                                         55
            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
      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.322

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.323 Furthermore, the state

of the evidence shows harm, given that Elizondo admitted to shooting Limon.324

                      CONCLUSION AND PRAYER
      For all the foregoing reasons, this Court should reverse the judgment of the

lower courts and render a judgment of acquittal or, alternatively, reverse and

remand for further proceedings below.




322
      17RR112-114.
323
      See 2Supp.CR5-6; Mendoza, 349 S.W.3d at 283.
324
      Mendoza, 349 S.W.3d at 283.

                                         56
                                      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
                                      Jose Guadalupe Rodriguez Elizondo

      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 13,448 words,

excluding the parts exempted by Rule 9.4.

                                      /s/ Brandy Wingate Voss
                                      Brandy Wingate Voss




                                        57
                      CERTIFICATE OF SERVICE
      On March 13, 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
      Email: ted.hake@da.co.hidalgo.tx.us
      Email: michael.morris@da.co.hidalgo.tx.us


      Lisa C. McMinn
      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




                                        58
