                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-18-00217-CR

                                        Juan HERNANDEZ,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2017CR11271
                           Honorable Lorina I. Rummel, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: April 10, 2019

AFFIRMED

           Juan Hernandez was convicted by a jury of murder and aggravated assault with a deadly

weapon. On appeal, Hernandez contends the evidence is legally insufficient to establish he acted

voluntarily when he shot and killed Victor Gonzales. Hernandez further contends the evidence is

legally insufficient to support the jury’s implicit rejection of his defensive theories of self-defense,

defense of a third person, and necessity in the shooting of Jesus Gonzales. We affirm the trial

court’s judgments.
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                                            BACKGROUND

        Hernandez and the two victims, Victor and Jesus, are cousins, and Gloria Martinez is their

aunt. Victor and Jesus were at Gloria’s house following an altercation involving Victor, Jesus,

and Hernandez’s brothers Sonny and Jose. Gloria, Robert Lopez, and Andrea Vallejo were also

present at Gloria’s house. Victor, Jesus, Gloria, Lopez, and Vallejo were outside in front of

Gloria’s house talking when Hernandez arrived with Sonny and Hernandez’s brother-in-law Jesse

Martinez.

       Upon arriving at Gloria’s house, Hernandez exited the car and approached Victor, and the

two men appeared to be preparing to fight. After Jesus pulled out a knife, Hernandez returned to

the car and retrieved a shotgun. Victor, Robert, and Andrea ran to the back of the house while

Jesus ran inside the house through the open front door. Hernandez followed Jesus inside the house

and shot him. Hernandez then exited the house where he encountered Victor holding a brick. The

evidence is conflicting regarding the men’s actions; however, the encounter ended with Hernandez

shooting and killing Victor. Hernandez, Sonny, and Martinez then fled the scene.

       Sometime later, Hernandez, Sonny, Jose, and their sister went to a police station to provide

information regarding the events.       Hernandez was arrested and charged with murder and

aggravated assault with a deadly weapon. After hearing all of the evidence, the jury found

Hernandez guilty of both offenses. Hernandez appeals.

                           LEGAL SUFFICIENCY STANDARD OF REVIEW

        When addressing a challenge to the sufficiency of the evidence, we consider whether, after

viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979). This standard requires us to defer “to the responsibility of the trier of

fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable


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inferences from basic facts to ultimate facts.” Id. The jury is the sole judge of the credibility of

the witnesses, and we presume the jury resolved any conflicts in the evidence in favor of the

verdict. Zuniga v. State, 551 S.W.3d 728, 733 (Tex. Crim. App. 2018). As the sole judge of the

credibility of witnesses, the jury is free to believe all, some, or none of a witness’s testimony. See

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Monreal v. State, 546 S.W.3d 718,

724 (Tex. App.—San Antonio 2018, pet. ref’d). “We may not re-weigh the evidence or substitute

our judgment for that of the factfinder.” Zuniga, 551 S.W.3d at 732.

                                         VOLUNTARY ACT

       In his first issue, Hernandez asserts the evidence is legally insufficient to establish he acted

voluntarily when he shot and killed Victor.

       “A person commits an offense only if he voluntarily engages in conduct, including an act,

an omission, or possession.” TEX. PENAL CODE ANN. § 6.01(a). Voluntariness as used in section

6.01(a) “focuses solely on physical acts of the accused.” Farmer v. State, 411 S.W.3d 901, 905

(Tex. Crim. App. 2013). “‘The operative word under Section 6.01(a), for present purposes, is

include.’” Id. at 906 (emphasis added) (quoting Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim.

App. 2003)). “‘[T]the “voluntary act” requirement does not necessarily go to the ultimate act (e.g.,

pulling the trigger), but only that criminal responsibility for the harm must “include an act” that is

voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer).’” Id. (quoting Rogers,

105 S.W.3d at 638). “Thus, a voluntary act that comprised a portion of the commission of the

offense is sufficient to satisfy the requirement of Section 6.01(a), even if that voluntary act was

accidental or the consequences of that act were unintended.” Id. at 906; cf. Ross v. State, 763

S.W.2d 897, 901 (Tex. App.—Dallas 1988, pet. ref’d) (“In the final analysis, a trial court is not

required to charge on involuntary conduct if the defendant engaged in a single voluntary act and

its required mental state—even though an involuntary act may also constitute part of the overall


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conduct.”). For example, the fact that a defendant did not intend to struggle with a victim over a

gun “does not render his conduct in doing so involuntary or any of his bodily movements during

that encounter involuntary.” Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993).

And, even if a defendant did not intend to pull the trigger, a gun does not fire “on its own volition.”

Id.

       Hernandez contends his actions were not voluntary because Victor’s shooting was “the

accidental result of a tug-of-war over the barrel of the shotgun.” Hernandez further contends he

was in a “stunned condition” after Victor hit him in the head with a brick, and “[t]he gun went off

accidentally during the [subsequent] struggle” over the shotgun. In support of his arguments,

Hernandez relies on his own testimony; however, that reliance is misplaced. First, the jury could

have disbelieved him. In addition, his own testimony established he engaged in the voluntary acts

of retrieving the shotgun and pointing it at Victor. And, even if Hernandez did not intend to pull

the trigger, the gun did not fire “on its own volition.” Id. Therefore, even if the jury believed that

the gun discharged during a struggle between Hernandez and Victor, Hernandez still engaged in

voluntary acts that comprised a portion of the offense. Thus, the evidence is legally sufficient to

establish Hernandez voluntarily engaged in acts “that comprised a portion of the commission of

the offense [which] is sufficient to satisfy the requirement of Section 6.01(a).” Farmer, 411

S.W.3d at 906.

                          SELF-DEFENSE/DEFENSE OF A THIRD PERSON

       In his second and third issues, Hernandez contends the evidence is legally insufficient to

support the jury’s implicit rejection of his claim that he acted in self-defense or in defense of a

third person when he shot Jesus. Hernandez contends the evidence established he grabbed the

shotgun because Jesus had a knife, and he believed Jesus tried to stab him. Hernandez further

contends he did not drive away when he returned to the car to retrieve the shotgun because he was


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concerned Victor or Jesus would retrieve an assault rifle from the house which could be used to

shoot him, Sonny, and Martinez. Finally, he contends the evidence established he shot Jesus when

Jesus kept coming at him with knives.

       A. Applicable Law

       “A person is justified in using deadly force against another: (1) if the actor would be

justified in using force against the other under Section 9.31; and (2) when and to the degree the

actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against

the other’s use or attempted use of unlawful deadly force.” TEX. PENAL CODE ANN. § 9.32(a).

Under Section 9.31, “a person is justified in using force against another when and to the degree

the actor reasonably believes the force is immediately necessary to protect the actor against the

other’s use or attempted use of unlawful force.” Id. at § 9.31(a).

       A person is justified in using deadly force against another to protect a third person if: (1)

he would have been justified in using deadly force to protect himself against the unlawful deadly

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

“reasonably believes his intervention is immediately necessary to protect the third person.” Id. at

§ 9.33. “A person defending on the grounds of defense of a third person stands in the shoes of the

third person.” Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d) (citing Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986)). “Thus, the use of

[deadly] force to protect a third person is justified in any situation in which the third person would

be justified in using [deadly] force to protect himself.” Id.

       In considering the justifications of self-defense and defense of a third person, the jury is

not required to find that a victim was actually using or attempting to use unlawful deadly force

against a defendant. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). “A person has

the right to defend himself from apparent danger to the same extent as he would if the danger were


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real.” Id. The only requirement is that a defendant reasonably believe he must act immediately.

See id.

          B. Standard of Review: Implicit Rejection of Self-Defense or Defense of a Third Person

          Once a defendant produces some evidence raising the issue of self-defense or defense of a

third person, the State bears the burden of persuasion to show beyond a reasonable doubt that the

defendant’s actions were not justified. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App.

1991); Valverde v. State, 490 S.W.3d 526, 527–28 (Tex. App.—San Antonio 2016, pet. ref’d);

Smith, 355 S.W.3d at 144. To meet its burden of persuasion, the State is not required to produce

additional evidence. Saxton, 804 S.W.2d at 913; Valverde, 490 S.W.3d at 528; Smith, 355 S.W.3d

at 144. If the jury finds the defendant guilty, it has made an implicit finding against any defensive

theory raised by the defendant. Saxton, 804 S.W.2d at 914; Valverde, 490 S.W.3d at 528; Smith,

355 S.W.3d at 144.

          When a defendant challenges the legal sufficiency of the evidence to support the jury’s

implicit rejection of his self-defense or defense of a third party claim, “‘we look not to whether the

State presented evidence which refuted appellant’s self-defense testimony, but rather we determine

whether after viewing all the evidence in the light most favorable to the prosecution, any rational

trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt

and also would have found against appellant on the self-defense issue beyond a reasonable doubt.’”

Valverde, 490 S.W.3d at 528 (quoting Saxton, 804 S.W.2d at 914). In conducting a legal

sufficiency review, we defer to the jury’s assessment of the credibility of the witnesses and the

weight to be given to their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.

2010); Valverde, 490 S.W.3d at 528.




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       C. Discussion

       In order for the jury to find Hernandez was justified in using deadly force, the jury had to

find Hernandez had a “reasonable belief” that deadly force was immediately necessary to protect

himself, Sonny, or Martinez against Jesus’s use or attempted use of unlawful deadly force. A

“reasonable belief” is “a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42).

       In his brief, Hernandez focuses extensively on his own testimony regarding Jesus

threatening him with a knife and continuing to threaten him when Hernandez followed him inside

the house. Hernandez’s testimony, however, was inconsistent with the testimony of the other

witnesses. First, the other witnesses testified Jesus kept the knife at his side and never threatened

Hernandez or anyone else with the knife. In addition, Jesus testified he dropped the knife on his

way inside the house and was not in possession of the knife when Hernandez shot him.

Furthermore, the jury could have disbelieved Hernandez’s testimony regarding his fear that Victor

or Jesus would retrieve an assault rifle. No other testimony or evidence established an assault rifle

was even in the house, and the jury could have believed Hernandez’s use of a gun to shoot Jesus

was not immediately necessary because he could simply have driven away from the scene rather

than following Jesus inside the house. Several witnesses testified Jesus did not pursue Hernandez

when he walked back to the car to retrieve the shotgun. Finally, Hernandez fled the scene after

the shooting. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (noting a

“factfinder may draw an inference of guilt from the circumstance of flight”); Valverde, 490 S.W.3d

at 529 (noting jury was entitled to consider defendant’s actions in leaving the scene in evaluating

self-defense claim).




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       Having reviewed all of the evidence in the light most favorable to the jury, we hold the

evidence supported the jury’s implicit rejection of Hernandez’s claims of self-defense and defense

of a third person. Hernandez’s second and third issues are overruled.

                                             NECESSITY

       In his final issue, Hernandez contends the evidence is legally insufficient to support the

jury’s implicit rejection of his assertion of the defense of necessity with regard to Jesus’s shooting.

Hernandez relies on the same evidence in support of his defense of necessity as he relies on in

support of his self-defense and defense of a third person arguments. First, he contends the evidence

established he did not leave after retrieving the shotgun because he believed Victor and/or Jesus

“would assassinate him using an automatic weapon before he could drive out of the range of such

a weapon.” Next, he contends the evidence showed his approaching the house “was necessary to

assure that [Jesus] would not get an assault weapon and blow him away.” Finally, he contends the

evidence established that he shot Jesus because Jesus was “brandishing an apparent knife at him”

and he “reasonably feared that [Jesus] would stab him to death.”

       In order to prove the defense of necessity, the evidence must establish that the defendant

reasonably believed his conduct was “immediately necessary to avoid imminent harm.” TEX.

PENAL CODE ANN. § 9.22. “‘Reasonable belief’ means a belief that would be held by an ordinary

and prudent person in the same circumstances as the defendant.” Stefanoff v. State, 78 S.W.3d

496, 501 (Tex. App.—Austin 2002, pet. ref’d). “‘Imminent’ has been defined as ready to take

place, near at hand, impending, hanging threateningly over one’s head, menacingly near.” Henley

v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016) (internal quotation omitted). “Thus, imminent

harm is harm that is ready to take place—harm that is coming in the very near future.” Id. Stated

differently, “[h]arm is imminent when there is an emergency situation and it is ‘immediately

necessary’ to avoid that harm.” Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth


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2001, pet. ref’d). “In other words, a split-second decision is required without time to consider the

law.” Id. “The justification defense of necessity applies when action is needed ‘immediately’ (i.e.,

now) to avoid ‘imminent’ harm (i.e., harm that is near at hand).” Henley, 493 S.W.3d at 89.

       As previously noted, the only evidence that Hernandez believed shooting Jesus was

immediately necessary to avoid imminent harm was Hernandez’s own testimony, and the jury

apparently disbelieved him. The other witnesses testified Jesus did not threaten Hernandez with

the knife or pursue Hernandez when he returned to his car, so nothing prevented Hernandez from

simply driving away. In addition, Jesus testified he dropped the knife when he tripped going inside

the house. Although two knives were located at the scene, Jesus testified he was not holding a

knife when Hernandez shot him. Accordingly, Hernandez’s fourth issue is overruled.

                                          CONCLUSION

       The trial court’s judgments are affirmed.

                                                   Liza A. Rodriguez, Justice

DO NOT PUBLISH




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