Affirmed and Opinion Filed November 4, 2015




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01028-CR

                         ADOLPH JUNIOR MENJIVAR, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 291st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1357185-U

                             MEMORANDUM OPINION
                           Before Justices Lang, Evans, and Whitehill
                                  Opinion by Justice Whitehill
       Menjivar attacked, stabbed, and killed Fernando Lopez during a fight in a parking lot.

Despite his claim of self-defense, a jury convicted Menjivar of murder and sentenced him to

sixty-five years’ imprisonment.

       In a single appellate issue, Menjivar asserts that the trial court erred in submitting a

provocation instruction to the jury, which error caused him to suffer “some harm.” In a cross-

point, the State asks us to modify the judgment to reflect that Menjivar pled not true to the

enhancement allegations and that the jury found the enhancement allegations true. Because we

conclude that the evidence supports submitting a provocation instruction, we modify the

judgment as the State requests, and as modified, affirm the trial court’s judgment.
                                                              I.    Background

             Between ten p.m. and midnight on the night before the murder, Gustavo and Michael

Rodriguez, Martin Rodriguez and Fernando Lopez went to a bar they frequented in Oak Cliff.1

The men rode in Martin’s gray Dodge Charger, and parked the car in a Fiesta Supermarket

parking lot across the street from the bar.

             After drinking and hanging out at the bar, at around closing time, the four men got in the

Charger to go home. Fernando was sitting in the front passenger seat, Michael was sitting in the

back seat behind Martin, who was driving, and Gustavo was sitting in the back seat behind

Fernando.

             Martin cut through the parking lot and some parked cars to avoid a car that was stopped

in a lane he wanted to use. As Martin was attempting to turn right to exit the parking lot, a blue

Nissan driven by Menjivar cut him off. The Charger and the Nissan almost collided. Then,

Menjivar pulled around to the driver’s side window of the Charger and stopped. He and the four

men in the Charger began yelling and cussing at each other.                                              Martin heard Menjivar say

something like, “Tango blast this.” At some point, Menjivar was “mean mugging” them. Martin

explained that this means looking at someone the wrong way.

             The men in the Charger got out of the car. There were no specific threats exchanged.

Michael thought Menjivar tried to get out of his car, but Gustavo shut Menjivar’s car door and

told him to leave. Then, Menjivar “took off real fast.”

             Believing the altercation had ended, the men got back into the Charger to leave. None of

the men in the Charger had weapons, and there were no weapons in the car.

             As the men in the Charger waited for traffic to clear, Martin glanced to his right and saw

“somebody swinging in the car,” through the passenger window. Michael did not immediately

1
    Because several of the witnesses have the same last name, we refer to all witnesses by their given names.



                                                                        –2–
realize that Menjivar was the person who was trying to hit Fernando, but took a swing at him.

The men tried to get out of the car, but Menjivar was “going back and forth” between the

windows and “[t]here was no way they could get out.”

        Gustavo saw someone knock Menjivar away from the car window, so he, Martin, and

Michael got out of the car and started hitting Menjivar. All of this activity was captured on the

Fiesta store surveillance video, which was played for the jury.

        Martin saw Fernando on the ground and initially thought he had been hit. But then

somebody started screaming that Fernando had been stabbed. Gustavo ran to Fernando, who was

bleeding, and held him until help arrived. The men later learned that Fernando had died.

        Balthasar Reyes, a friend of Fernando, Gustavo, Martin, and Michael, was also at the bar

that night, and was in the parking lot when Menjivar attacked Fernando. Reyes saw Menjivar

run to the Charger’s passenger side where Fernando was sitting and start swinging “in the

window.” Reyes thought Menjivar was “trying to take advantage of them while they’re in the

car;” Menjivar did not look afraid as he ran toward the Charger. As Menjivar approached the

car, Fernando was looking “forward down, like he was looking at his phone.” Reyes ran over to

help his friends, and hit Menjivar and knocked him out. Reyes did not see Fernando fight back;

he looked like he was caught by surprise. Reyes also kicked Menjivar, and then “everybody

started getting on [Menjivar].”

        When the police responded to the incident, the only weapon found was the black-handled

four-inch tactical Smith & Wesson knife they took away from Menjivar.

        Detective Eduardo Ibarra interviewed Menjivar at the hospital the next day. Menjivar

was alert and coherent when he gave his statement and “seemed eager to talk about what

happened.” Ibarra’s interview of Menjivar was recorded, and the recording was played for the

jury.

                                               –3–
       During his interview, Menjivar gave two different versions of events. In his first version,

Menjivar said he was driving through the Fiesta parking lot and another car almost ran into his

car. Menjivar exclaimed, “Dude, you almost hit my car, and he exchanged some words with the

driver and passengers through the open car windows. One passenger said, “Hey, f– you, bitch,

what’s up?”

       According to Menjivar, the man in the front passenger’s seat jumped out of the car, came

up to his open back driver’s-side window, and grabbed and pulled the back of his shirt. In

response, Menjivar jumped out of the car, and the man swung something at him that he guessed

was a knife. He blocked the swing and the knife cut his arm. He then grabbed the knife from the

man and someone hit him in the back with a bottle. After that, he “just started swinging . . . and

self-defensing [himself].” Menjivar told the detective he stood between the cars, but he never

got close to the other car or approached it. Later during the 30-minute interview, Menjivar

admitted this first version of the crime was a “bullshit story.”

       After the detective told Menjivar that his story was inconsistent with the surveillance

video, Menjivar changed his story. He said that after the near-collision, the men in the other car

started “talking shit.” He admitted it was possible that he approached the Charger first and

walked up to the passenger side of the car, but claimed he was drunk and did not remember

because he blacked out. Menjivar also admitted he had a black knife.

       Menjivar said that he went up to the window by the driver’s window. The driver “started

going like he was going to grab his gun or something” and the “old boy” in the back seat tried to

get out of the car. Appellant pulled his knife out when he saw the man “reach.” Menjivar said,

“I stabbed him, I guess.” Menjivar believed he had stabbed the driver and reacted with surprise

when the detective told him he had stabbed the passenger. After he stabbed into the car, all of

the men got out.

                                                 –4–
             When Detective Ibarra asked Menjivar why he got out of his car when he knew the other

car had “four or five dudes” in it, all of whom were far younger than him, Menjivar said “he”

kept going on with this “bitch shit.” Menjivar volunteered that he “didn’t say nothing about no

hood.” But the detective told him he knew that was not true because several witnesses heard him

yell “Tango, Tango, Tango” during the attack.2

             The jury also heard a recording of a telephone call between Menjivar and his girlfriend

while Menjivar was in jail. When his girlfriend asked if he “said” self-defense, Menjivar replied,

“Yeah. That’s what I’m saying. Self-defense, see how it comes out.”

             Menjivar testified at trial. He said that on the evening in question he left a birthday party

at 11:45 p.m. and went home. He had consumed alcohol at the party and had just started

drinking a 12-pack of beer when an intoxicated friend called him from the bar and asked for a

ride. Despite the fact that he was “buzzing good” and “heavy duty” intoxicated, he believed he

was able to clearly remember the events that occurred that night.

             He drove his girlfriend’s Nissan to the Fiesta parking lot to pick up his friend. Menjivar

claimed that his near-collision with the Charger was not the parties’ first encounter that night.

Instead, the altercation began when Martin tapped the rear bumper of Menjivar’s car with his car.

Menjivar claimed he asked Martin to move back to see if his bumper was damaged, but Martin

would not do so. An exchange of foul language ensued.

             According to Menjivar, at one point the driver told him, “Get the f— away from my car,”

and “was reaching up under the seat, like if he had a gun or something.” A passenger in the car

said, “shoot that M-F.” Although he never saw a weapon, he thought the men in the car had a

gun. Menjivar got in his car and took off.



2
    Tango Blast is the name of a prison gang.



                                                     –5–
          After he took off, he made a U-turn and was faced head-on and blinded by bright

headlights from another car. He claimed he did not know that this was the same car full of men

he had just argued with until he pulled up next to the driver’s window. But he did not keep

driving because “[i]t looked . . . like they wanted to say something,” so he stopped his car next to

theirs.

          When he stopped his car next to the Charger, the men immediately jumped out and

approached his car. Menjivar claimed the men were calling him names and someone tugged on

the back of his shirt. He believed someone was trying to get in his car because someone tried to

open his car door. All four men were “swinging at [him]” with arms coming through the

windows punching him, and he was hit four times.

          As Menjivar started to drive away, he heard someone say, “We’ll get him down the

block. Get in the car. We’ll get him down the block.” He also claimed the men used the word

“shooting” and “made a gesture as if they had a gun.”

          Menjivar testified that he thought the men were going to come get him. As he was

driving away down the aisle of the parking lot, another car was backing out in front of him and

others were positioned to his left in a way that made him feel “trapped in,” so he did not believe

he could leave. He pulled his car only about a car-and-a-half length from the Charger before

stopping only about seven seconds later.

          Because he felt trapped, he said, Menjivar thought his only option was to get out of the

car and “fight back,” or as he said later, “fight it out” According to Menjivar, as he got out of his

car, Fernando reached under his seat “like he was going for something.” He believed his life was

in danger and the men intended to harm him, so he acted to protect himself. He did not intend to

kill Fernando.




                                                –6–
           On cross-examination, Menjivar admitted that he did not tell Detective Ibarra that anyone

tapped the back of his car or threatened to shoot him. He just told the detective “some bullshit.”

Menjivar also agreed that he waited until the men were back in the car before he started running

toward “the front passenger.” All of the men but the passenger had their backs to him, but the

passenger was “turned around looking at [him].”

                                                               II. Analysis

A.         Was the Provocation Instruction Improperly Submitted?

           Menjivar complains that the evidence does not support the trial court’s inclusion of a

charge on provocation.3 We conclude there was sufficient evidence to include this instruction

and overrule this issue.

           A trial court must submit a charge setting forth the “law applicable to the case.” TEX.

CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Reeves v. State, 420 S.W.3d 812 (Tex. Crim.

App. 2013).            Here, the charge instructs the jury on intentional murder, self-defense, and

provocation.

           When reviewing jury instruction errors, we first determine whether there was error in the

charge. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Barrios v. State, 283

S.W.3d 348, 350 (Tex. Crim. App. 2009). If error is present, the degree of harm necessary for

reversal depends on whether the appellant preserved the error by objecting to the instruction

provided at trial. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). If the defendant

properly objected to the erroneous jury charge instruction, reversal is required if we find even

“some harm” to the defendant’s rights. Id. at 144 n. 21. If the error was not objected to, it must




3
  The State argues that Menjivar was not entitled to a self-defense instruction, and therefore the trial court did not err by including a provocation
instruction in the charge. We assume without deciding that the self-defense instruction was proper, and consider only the provocation instruction
given with the charge on self-defense.



                                                                       –7–
be “fundamental” and requires reversal only if it was so egregious and created such harm that the

defendant “has not had a fair and impartial trial.” Barrios, 283 S.W.3d at 350.

       Menjivar admitted that he stabbed Fernando, but claimed he acted in self-defense. A

person commits murder when he intentionally or knowingly causes the death of an individual.

See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Under certain circumstances, however,

self-defense justifies the use of deadly force. Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim.

App. 2011).

       Nonetheless, self-defense is not justified if the actor provokes the attack. See TEX. PENAL

CODE ANN. § 9.31(b)(4) (West 2011); Smith v. State, 965 S.W.2d 509, 512 (Tex. 1998). An

instruction on provocation, in response to a defendant’s claim of self-defense, is appropriate

when there is sufficient evidence (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 on the other. Id. at 513. Each of the

three elements may be proved circumstantially. Id. at 515, 517–18. 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.” Id. at 514. In making this

determination, we view the evidence in the light most favorable to giving the instruction. See

id.; Mendoza v. State, 349 S.W.3d 273, 279 (Tex. App.—Dallas 2011, pet. ref’d).

       Despite Menjivar’s assertion that the only evidence of him provoking Fernando is the

evidence that he looked at Fernando the wrong way, there is ample evidence to support the

submission of a provocation instruction. Specifically, as several witnesses testified and the

surveillance video confirms, all parties drove away after the initial altercation ended. Then,

Menjivar ran back to the Charger to, in his own words, “fight it out.” Although he did not see a

                                               –8–
gun, he got out of his car, armed with a knife, to fight the men in the Charger, including

Fernando. According to Menjivar himself, it was at that point that he saw Fernando reach under

the seat to grab something and then Menjivar attacked Fernando, fatally stabbing him with a

knife.

         On this evidence, a rational jury could conclude that (1) Menjivar’s running toward the

car with Fernando—after the prior altercation was over—was a provocative act, (2) his action

was calculated to Fernando’s reaction, and (3) Menjivar’s actions were a pretext for inflicting

harm on Fernando. See Smith, 965 S.W.2d at 513.

         Therefore, viewed in the light most favorable to giving the instruction, we conclude that

there is sufficient evidence on each element of provocation, and the trial court did not err in

submitting the instruction. Accordingly, we need not conduct a harm analysis. See Acosta v.

State, No. 05-11-01165-CR, 2013 WL 12777867, at *3 (Tex. App.—Dallas Feb. 27, 2013, no

pet.) (mem. op.). Menjivar’s issue is resolved against him.

B.       Should the Judgment be Modified?

         The State asks us to modify the judgment to reflect that Menjivar pled not true to the

enhancement allegations and that the jury found the enhancement true. An appellate court can

modify incorrect judgments when the evidence necessary to correct a judgment appears in the

record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, writ ref’d).

         The record reflects that the State alleged in the indictment that Menjivar had a prior

conviction for the felony offense of aggravated assault, and the State also alleged, in a notice of

intent to enhance punishment, that Menjivar had a prior conviction for felon in possession of a

firearm. Menjivar pled not true to these allegations, but the jury found them to be true.

         The judgment, however, states “N/A” in the spaces provided for Menjivar’s pleas to the

enhancement paragraphs and as to the jury’s findings.

                                               –9–
       Because we have the necessary information to correct the judgment, we modify the

judgment to reflect Menjivar’s pleas of not true and the jury’s findings of true. As modified, we

affirm the trial court’s judgment.



Do Not Publish
TEX. R. APP. P. 47                                /Bill Whitehill/
141028F.U05                                       BILL WHITEHILL
                                                  JUSTICE




                                              –10–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ADOLPH JUNIOR MENJIVAR, Appellant                   On Appeal from the 291st Judicial District
                                                    Court, Dallas County, Texas
No. 05-14-01028-CR         V.                       Trial Court Cause No. F-1357185-U.
                                                    Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                        Justices Lang and Evans participating.

       Based on the Court’s opinion of this date, we modify the judgment to reflect that Menjivr
plead not true to the enhancement allegations but the jury found them true. As modified, the
judgment of the trial court is AFFIRMED.


Judgment entered November 4, 2015.




                                             –11–
