             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00073-CR
     ___________________________

 RICARDO LARA MARTINEZ, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 362nd District Court
          Denton County, Texas
      Trial Court No. F17-1599-362


  Before Kerr, Pittman, and Womack, JJ.
 Memorandum Opinion by Justice Womack
                            MEMORANDUM OPINION

                                  I. INTRODUCTION

      A jury convicted Ricardo Lara Martinez of murdering Juanita,1 the mother of

their child, and assessed his punishment at fifty years’ confinement. The trial court

sentenced Martinez accordingly. In two issues, Martinez contends that his conviction

is not supported by sufficient evidence and that the trial court erroneously denied a

self-defense instruction.   We conclude that the evidence is sufficient to support

Martinez’s murder conviction and that Martinez was not entitled to a jury instruction

on self-defense. Additionally, if the trial court’s failure to instruct the jury on self-

defense was error, we conclude the error was harmless. We affirm the trial court’s

judgment.

                                  II. BACKGROUND

      Martinez and Juanita met in 2008, and in 2010, Juanita gave birth to their son,

A.L. Their relationship ended when A.L. was three years’ old, but Martinez had

possession of A.L. as he desired, which was almost every weekend.




      1
       We use aliases to refer to the decedent, her child, and select witnesses to
protect the identities of minors. See Tex. R. App. P. 9.10(a)(3); Daggett v. State,
187 S.W.3d 444, 446 n.3 (Tex. Crim. App. 2005); Wilson v. State, 442 S.W.3d 779, 782
n.1 (Tex. App.—Fort Worth 2014, pet. ref’d).


                                           2
      By October 2014,2 Juanita intended to seek sole custody of A.L. She filed a

custody petition in which she expressed concern about the possible international

abduction of A.L. and specifically sought to enjoin Martinez from removing A.L.

from the United States to Mexico.

      Toward the end of November, Martinez told friends that he and A.L. were

going to Mexico because Martinez’s father was sick. He also sold his personal

belongings, including his green motorcycle, for which he had asked payment of

“$3300 obo” and advertised, “NEED TO SELL ASAP.”3 As requested, Oscar

Lopez4 helped Martinez send $3,400 on December 7, 2014, and $3,500 on December

11, 2014, to Martinez’s father in Mexico.

      In October or November 2014, Juanita began dating Carlos Hernandez. By

early December 2014, Juanita planned to move in with Carlos in January 2015 and

was going to take A.L. to live there as well.

      On Thursday, December 11, 2014, Martinez made arrangements with Oscar

Rivera to transport him and A.L. to Mexico. Lopez recalled that Martinez spoke to

Rivera about driving to Mexico a few weeks before he departed and initially

      2
          Juanita initially filed suit in 2011.
      3
       At trial, the Craigslist posting admitted in evidence had been printed on
December 15, 2014, and contained a notation that the posting had been updated
“16 days ago.”

      We refer to Oscar Lopez and another witness, Oscar Rivera, by their last
      4

names for clarity.


                                                  3
understood that Martinez would be traveling alone. However, one or two days before

departing for Mexico, Martinez told Lopez that Juanita had authorized him to take

A.L. with him and said she would pick up and return A.L. to the United States after

one week.

      On that same Thursday evening, Carlos and Juanita were scheduled to attend

an opera in Dallas, but Juanita continually changed their meeting location. When they

finally met, Juanita cried and told Carlos that she was concerned that Martinez had

been selling his personal items. Juanita also suggested that she and Carlos stop seeing

each other, which surprised Carlos. However, on Friday, Juanita informed Carlos that

she had signed the lease agreement, and they could live together.

      Juanita worked for an insurance business in Denton, and Maria Morales was

her coworker. Maria worked from 9:00 a.m. to 2:00 p.m., and Juanita worked from

2:00 p.m. to 6:00 p.m., but they did not see each other on Friday, December 12, 2014.

Juanita had made two bank deposits for the company at 2:03 p.m. and printed the

daily report at 5:56 p.m. Juanita did not reply to Maria’s text message that was sent

between 5:30 p.m. and 6:00 p.m. and failed to respond to Carlos’s attempts to

communicate with her, which was unusual and concerned him. Carlos knew that

Juanita and A.L. were supposed to meet with Martinez on Friday evening, and he

knew that Juanita feared Martinez.

      Bobby Hare lives in a house directly across from the insurance company, and

he sat on his front porch and drank two beers before 3:30 p.m. on Friday,

                                          4
December 12, 2014. Bobby had previously met a Hispanic woman and her young son

at the insurance company, and he observed the woman leave the insurance office at

about 3:30 p.m., walk alone to a nearby taqueria, and return alone. The taqueria

employee saw Juanita pick up food after 2:00 p.m. or 3:00 p.m. without her son.

       Bobby never saw the woman after she returned to work that day. However, at

about 5:30 p.m., he noticed that the woman’s white car had been moved from the

front of the business and was parked at a nearby laundromat. Between 5:30 p.m. and

6:00 p.m., Bobby observed the woman’s young son leave the insurance company with

a man that Bobby had seen on prior occasions. In the past, the man had been driving

a green motorcycle.     The man and boy held hands as they walked toward the

laundromat and proceeded around the corner. The boy seemed comfortable with the

man.    Bobby noticed that the woman’s vehicle was still at the laundromat at

10:30 p.m. and at 8:00 a.m. the following morning.           Although Bobby initially

identified a person other than Martinez in a police photo lineup, at trial he identified

Martinez as the person he had seen walking around the corner with the young boy.

       At about 5:30 p.m. on Friday, Martinez asked Gustavo Olivares to lend him his

blue Ford Ranger so that he could retrieve a letter from Juanita that would permit

A.L. to travel with him. Gustavo testified that A.L. stayed with him and played with

neighbors while Martinez was gone. Martinez was driving Gustavo’s truck when he

arrived at Rivera’s house between 5:00 p.m. and 5:30 p.m. to drop off three pieces of



                                           5
luggage. When Martinez returned to Gustavo’s forty minutes later, Gustavo saw

Martinez throw something in the dumpster. Martinez seemed serious.

      Martinez’s neighbor, Veronica Gomez, observed him leave at about 4:30 p.m.

on Friday in a Ford truck and saw him return with A.L. in the truck between 5:40 p.m.

and 5:50 p.m. When he returned, Martinez almost collided with Veronica as she was

leaving. Unlike earlier in the day, Martinez looked bothered and upset, and his face

was pale, almost white, as if he had seen a ghost. Veronica also saw Martinez throw

something in the dumpster. On another occasion, Martinez had told Veronica that he

would like his parents to know his son, but he did not state that he would take A.L. to

Mexico for that purpose.

      As requested, Gustavo thereafter drove Martinez and A.L. to Rivera’s house,

and they arrived at 7:00 p.m. Rivera and his passengers, including his seventeen-year-

old daughter, Myra, Martinez, A.L., and two other men, left for Mexico at

approximately 8:15 p.m. on Friday evening. Martinez did not make plans to return

from Mexico and told Rivera that A.L.’s mother would pick him up at the border in

several weeks. After arriving in Mexico on Saturday, December 13, 2014, someone

told Rivera that he had observed scratches on Martinez’s neck and arms.

      On Saturday morning, Juanita was scheduled to work from 10:00 a.m. to

5:00 p.m. Carlos attempted to contact Juanita after she failed to meet him at 8:00 a.m.

as planned. Juanita did not respond to his text messages and phone calls.



                                          6
      After customers called Maria on Saturday morning and reported that they were

unable to enter the insurance office and make payments, Maria and her husband,

Robert, arrived at the business between 3:00 p.m. and 4:00 p.m. and noticed that

Juanita’s white car was parked at the laundromat, which was unusual. After Maria

opened the office, Robert discovered Juanita’s cold body on the restroom floor.

Juanita’s face was bloody, purple, and swollen, and blood was everywhere. The

recording of Robert’s 911 call was published to the jury. Maria and a police officer

observed no signs of forced entry into the business.

      Early Sunday morning, Myra notified her father that A.L. was the subject of an

Amber Alert and that Martinez had kidnapped his son. Myra and Rivera spoke with

police after returning to Denton from Mexico.

      According to crime scene investigator Donna Krouskup, Juanita suffered

trauma and bruising to her neck, which also showed many marks that may have been

self-inflicted as Juanita attempted to remove something from her neck. Krouskup

explained that those injuries could not have been caused by mere covering of Juanita’s

mouth, and Denton Police Sergeant Keith Martin testified that based on his training

and experience, the injuries to Juanita’s face and neck were consistent with the use of

a person’s hands or an object. Juanita suffered trauma to her left eye and had

defensive wounds on her hands. In addition to the other injuries, one or more of

Juanita’s teeth had been chipped or knocked out. Krouskup testified that the scene

where Juanita’s body was found indicated that Juanita’s attacker wanted her to die.

                                          7
Texas Ranger Claire Barnes noted that the scene reflected a lot of aggression or

passion.

       Martinez was extradited from Mexico in 2017. During his return flight to the

United States, Martinez volunteered that he had learned that DNA was present under

“the person’s”5 fingernails. Martinez stated that “the person” had slapped him and

suggested that was the reason DNA may have been present under “the person’s”

fingernails.   He additionally noted that “the person[’s]” boyfriend should be

investigated as a suspect because the boyfriend had found out about Martinez’s

relationship with “the person.” However, Carlos had been cleared as a suspect in

Juanita’s death.   DNA testing showed that neither Martinez, nor his patrilineal

relatives such as A.L., could be excluded as a contributor of the Y chromosome DNA

retrieved from Juanita’s fingernails and hand swabs.

       During his recorded custodial interview, Martinez gave an account of his last

encounter with Juanita. Martinez said that Juanita had agreed to permit him to take

A.L. to Mexico for a month or so to spend time with his family during Christmas, and

he went to Juanita’s workplace at noon to pick up A.L. After he left his suitcases with

Rivera, Martinez returned to Juanita’s workplace at approximately 5:30 p.m. or

6:00 p.m. to say good-bye to Juanita. A.L. slept in Gustavo’s truck while Martinez

retrieved A.L’s belongings from Juanita. Juanita provided him A.L.’s birth certificate


       5
        Martinez never referred to Juanita by name.


                                          8
for inspection at the border, and she agreed to pick up A.L. in Mexico afterward.

Juanita became angry because she knew Martinez was going to Mexico without her.

Juanita slapped Martinez, and he reacted by hitting her. Later, Martinez stated that

Juanita “wanted to scream for someone [to] help her and for me not to be hitting her

but I did not hit her[.]” Martinez subsequently said his instinct was to hit Juanita, and

he hit her, and then Juanita “hit herself,” fell, and screamed. Juanita’s screaming

scared Martinez. Because he did not want Juanita to scream, Martinez covered

Juanita’s mouth until she did not move and he then realized “it was too late.”

Martinez declared that when they were a couple, Juanita had agreed that they would

travel to Mexico as a family to permit A.L. to learn Spanish during a one-to-two year

period and that Juanita would then bring A.L. back to the United States.

      Juanita’s niece, Blanca, and Juanita’s employer, Leticia Sanchez, testified that

Juanita had never planned to go to Mexico, either alone or with A.L. Barnes testified

that if one person slaps another, the self-defense laws of Texas do not permit the

slapped person to respond by brutally beating and strangling that person and that

there must be a very good reason for killing a person in self-defense.

                                   III. DISCUSSION

      A.     Sufficiency of the Evidence
      We first address Martinez’s second issue in which he contends that the

evidence is insufficient to support his conviction. In support of this contention,




                                           9
Martinez notes, without argument, that a key element of the charged offense of

murder is that a person intentionally or knowingly causes the death of an individual.

             1.     Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). In reviewing all the

evidence, we consider both properly and improperly admitted evidence. Jenkins v.

State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

      This standard gives full play to the factfinder’s responsibility to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman, 520 S.W.3d at 622. The factfinder alone judges the evidence’s weight and

credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622.

Thus, when performing an evidentiary-sufficiency review, we may not re-evaluate the

evidence’s weight and credibility and substitute our judgment for the factfinder’s.

Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences

are reasonable based on the evidence’s cumulative force when viewed in the light

                                          10
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court

conducting a sufficiency review must not engage in a ‘divide and conquer’ strategy but

must consider the cumulative force of all the evidence.”). We must presume that the

factfinder resolved any conflicting inferences in favor of the verdict, and we must

defer to that resolution. Murray, 457 S.W.3d at 448–49.

      The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins,

493 S.W.3d at 599. Motive and opportunity are not elements of a criminal offense but

can be circumstances that indicate guilt, and we may properly consider them in

conducting a review for evidentiary sufficiency. Temple v. State, 390 S.W.3d 341, 360

(Tex. Crim. App. 2013). “Having the opportunity to murder someone and then

fleeing the crime scene is a circumstance of guilt.” Ingerson v. State, 559 S.W.3d 501,

510 (Tex. Crim. App. 2018).

             2.     Hypothetically Correct Jury Charge

      To determine whether the State has met its Jackson burden to prove a

defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as

defined by the hypothetically correct jury charge to the evidence adduced at trial. See

Jenkins, 493 S.W.3d at 599. A hypothetically correct jury charge reflects the governing

law, the indictment, the State’s burden of proof and theories of liability, and an

adequate description of the offense for the particular case.          Hernandez v. State,

                                           11
556 S.W.3d 308, 315 (Tex. Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)); see Jenkins, 493 S.W.3d at 599 (stating that a

hypothetically correct charge accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or restrict its

theories of liability, and adequately describes the particular offense for which the

defendant was tried, and that the “law as authorized by the indictment” means the

statutory elements of the charged offense as modified by the factual details and legal

theories contained in the charging instrument); see also Rabb v. State, 434 S.W.3d 613,

616 (Tex. Crim. App. 2014) (“When the State pleads a specific element of a penal

offense that has statutory alternatives for that element, the sufficiency of the evidence

will be measured by the element that was actually pleaded, and not any alternative

statutory elements.”).

      In Texas, a person commits the criminal offense of murder if the person:

      (1) intentionally or knowingly causes the death of an individual;

      (2) intends to cause serious bodily injury and commits an act clearly
          dangerous to human life that causes the death of an individual; or

      (3) commits or attempts to commit a felony, other than manslaughter,
          and in the course of and in furtherance of the commission or
          attempt, or in immediate flight from the commission or attempt, he
          commits or attempts to commit an act clearly dangerous to human
          life that causes the death of an individual.

Tex. Penal Code Ann. § 19.02(b). A person acts intentionally, or with intent, with

respect to the nature of his conduct or to a result of his conduct when it is his


                                           12
conscious objective or desire to engage in the conduct or cause the result.            Id.

§ 6.03(a). A person acts knowingly, or with knowledge, with respect to the nature of

his conduct or to circumstances surrounding his conduct when he is aware of the

nature of his conduct or that the circumstances exist. Id. § 6.03(b). A person acts

knowingly, or with knowledge, with respect to a result of his conduct when he is

aware that his conduct is reasonably certain to cause the result. Id. The term “serious

bodily injury” means bodily injury that creates a substantial risk of death or that causes

death, serious permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ. Id. § 1.07(a)(46).

      The amended indictment specified that Martinez:

      on or about the 12th day of December, 2014 and anterior to the
      presentment of this Indictment, in [Denton] county and state [of Texas],
      did then and there intentionally or knowingly cause the death of an
      individual, namely, [Juanita], by strangling [Juanita] with defendant’s
      hand or unknown object, or by striking [Juanita] with defendant’s hand,
      or by striking [Juanita] with an unknown object;

      And . . . on or about the 12th day of December, 2014, and anterior to
      the presentment of this Indictment, in the county of Denton and State
      of Texas, did then and there, with intent to cause serious bodily injury to
      an individual, namely, [Juanita], commit an act clearly dangerous to
      human life that caused the death of [Juanita], by strangling [Juanita] with
      defendant’s hand or unknown object, or by striking [Juanita] with
      defendant’s hand, or by striking [Juanita] with an unknown object;
      against the peace and dignity of the State.

      Therefore, under a hypothetically correct jury charge, the State was required to

prove beyond a reasonable doubt that on or about December 12, 2014, Martinez

murdered Juanita by intentionally or knowingly causing her death by strangling Juanita

                                           13
with his hand or an unknown object, or by striking Juanita with his hand or with an

unknown object, or with intent to cause serious bodily injury to Juanita, committed an

act clearly dangerous to life that caused Juanita’s death by strangling Juanita with his

hand or an unknown object, or by striking Juanita with his hand or an unknown

object. Hernandez, 556 S.W.3d at 315 (citing Malik v. State, 953 S.W.2d at 240). A

culpable mental state must generally be inferred from the circumstances. Nisbett v.

State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018).

             3.     Analysis

      After a thorough review of the record, and giving proper deference to the jury’s

verdict, we conclude that the evidence is sufficient to support Martinez’s murder

conviction. Temple, 390 S.W.3d at 360. Although he specifically complains that the

State’s evidence was not sufficient to establish beyond a reasonable doubt that he

intentionally and knowingly murdered Juanita, Martinez acknowledges on appeal that

it was the jury’s prerogative to weigh the evidence and accept or reject any witness

testimony.

      During his custodial interview, Martinez acknowledged that he went to

Juanita’s workplace in Denton on December 12, 2014, at approximately 5:30 p.m.,

alleged that Juanita slapped him, and admitted that after he began hitting Juanita and

she screamed, he placed his hand over Juanita’s mouth until “it was too late.” While

Martinez implicitly suggests that he did not act intentionally or knowingly in killing

Juanita, other evidence supports the jury’s finding that he did.

                                           14
       The culpable mental state for murder can be inferred from a defendant’s

motive. Nisbett, 552 S.W.3d at 267. There was evidence that Martinez had a motive

to act as he did. Various witnesses testified that Martinez wanted to take his son to

Mexico, and contrary to his assertion that Juanita had agreed to this, the jury had

before it evidence that Juanita was afraid that Martinez would abscond to Mexico with

their son and had instituted custody proceedings to foreclose that possibility.

       Other evidence showed that Martinez began his preparations to take A.L. to

Mexico weeks earlier by selling his personal belongings and wiring money to Mexico.

Although the evidence of A.L.’s location at the time Juanita was killed is

contradictory, there was some evidence that Martinez left A.L. with Gustavo while he

went to retrieve A.L.’s travel papers from Juanita. Within a day of killing Juanita,

Martinez was in Mexico with their son. In this case, the evidence of Martinez’s

preparations to flee with A.L. supported the inference that the jury could have found

as to the requisite intent, arising from his motive, to kill Juanita.

       A defendant’s culpable mental state may also be inferred from the extent of the

victim’s injuries. Nisbett, 552 S.W.3d at 267. The forensic evidence regarding Juanita’s

injuries and death supports a finding that Martinez acted intentionally and knowingly

in causing Juanita’s death.

       Tarrant County Medical Examiner Dr. Susan Roe testified that Juanita suffered

asphyxia trauma. Juanita’s neck bore hemorrhages due to trauma, as well as bilateral



                                             15
fractures of the cricoid ring.6 The abrasions and bruising on Juanita’s neck were

consistent with manual asphyxiation by hand, the underlying injury to her airway was

consistent with pressure on that area, and the injuries reflected that there may have

been a component of ligature by an object, something perhaps as simple as the

clothing present on Juanita’s body. There were also injuries toward the back of

Juanita’s neck, possibly from encircling hands.         Multiple markers of asphyxia,

including subdural dot hemorrhages known as petechiae, were present in various parts

of her body and in her eyes. Asphyxia, the lack of oxygen, may be achieved by

manual and ligature strangulations, and Roe expounded that if “quite a bit” of

pressure is applied long enough to the airway, which includes the hyoid bone, thyroid

gland, trachea, and cricoid cartilage, as well as blood vessels and nerves, a person will

lose consciousness, and may sustain damage to the underlying structure.              Roe

explained that the process of death from manual or ligature strangulation is not quick

and “takes a fair . . . number of minutes.” This testimony casts doubt on Martinez’s

suggestion that he accidentally killed Juanita.




       6
        Dr. Dana Austin, a forensic anthropologist, examined Juanita’s cricoid, which
is nestled under the thyroid cartilage. Juanita’s cricoid was broken on both sides,
indicating that a squeezing pressure caused the fracture. It is possible for the injury to
be inflicted by hand, by ligature, or by anything that compresses the neck. However,
Austin explained that such fractures do not occur accidentally in the absence of a lot
of force, such as a fall, and Austin explained that simply placing one’s hand over a
nose and mouth would not be sufficient to fracture Juanita’s cricoid.


                                            16
      Roe’s examination also revealed that Juanita suffered blunt force trauma

resulting in subgaleal, subdural, and subarachnoid hemorrhages in her brain and skull

area; contusions or bruises in the temporal and inferior frontal lobes of her brain; and

a fracture in the back of her skull. The contusions indicate that Juanita either fell or

was pushed or that her head was slammed with sufficient force that her brain was in

motion when her skull fractured. Juanita’s face was either “struck into something or

something was struck into her face[,]” such as a hand or an object. Roe noted that

Juanita’s skull fracture was significant because it is a marker of the amount of force

applied to the area, and creating a fracture in that area that radiates down into the

posterior fossa, as in this case, required a significant amount of force such as a severe

slamming into a floor or an area with a hard surface.

      Juanita also suffered fractured ribs and hemorrhages within her abdominal

cavity and in the area around her left kidney and damage to her adrenal gland. The

upper pole of Juanita’s left kidney was also torn, an injury that requires a significant

amount of force because the kidneys are deep and well-protected.

      Roe explained that the blunt force injuries to Juanita’s brain and skull could

have been lethal alone, that the asphyxia injuries could have been lethal, and that the

combination of the blunt force and asphyxia injuries were lethal and caused Juanita’s

death. She determined that Juanita’s manner of death was homicide.

      From the evidence about the severity of Juanita’s injuries, the jury was

permitted to infer that Martinez intentionally and knowingly killed Juanita. Viewed in

                                           17
the light most favorable to the jury’s verdict, a rational juror could have found

Martinez guilty of all elements of the crime beyond a reasonable doubt. Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622. Therefore, the

evidence is sufficient to show that Martinez acted intentionally and knowingly and

caused the death of Juanita. And even if the evidence had not been sufficient to

prove the mens rea element that Martinez intentionally and knowingly caused Juanita’s

death, the evidence was sufficient to show that Martinez intended to cause serious

bodily injury and committed acts that were clearly dangerous to human life and killed

Juanita. See Tex. Penal Code Ann. § 19.02(b)(2). Because the evidence is sufficient to

support the jury’s verdict, we overrule Martinez’s second issue.

      B.     Self-Defense Instruction

      In his first issue, Martinez contends that the trial court erroneously denied him

a jury instruction on self-defense. We disagree.

             1.     Standard of Review

      We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In

reviewing a jury charge, we first determine whether error occurred; if not, our analysis

ends. Id. A trial court must charge the jury on a defensive theory to the charged

offense when properly requested and raised by any evidence, regardless of its

substantive character. Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997)

(discussing jury charge on voluntariness). We must analyze a trial court’s refusal to

                                          18
give such an instruction for harm. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim.

App. 2013) (“Harm does not emanate from the mere failure to include the requested

instruction.”); Payne v. State, 11 S.W.3d 231, 232–33 (Tex. Crim. App. 2000).

             2.      Applicable Law

                     a.    Self-Defense Instruction

      The defendant’s testimony alone may suffice to raise a defensive theory

requiring an instruction in the charge. Brown, 955 S.W.2d at 279. If the confession

and avoidance doctrine applies, the defendant must admit to the conduct—both act

and culpable mental state—of the charged offense to be entitled to the instruction.

Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010) (“The confession and

avoidance doctrine applies to the necessity defense.”). The doctrine does not apply

when the defensive issue, by its terms, negates the culpable mental state. Id. at 402.

      Self-defense is a justification defense that arises only when “the defendant’s

defensive evidence essentially admits to every element of the offense including the

culpable mental state but interposes the justification to excuse the otherwise criminal

conduct.” Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007); see Tex. Penal

Code Ann. §§ 9.02, 9.31(a); Ex parte Nailor, 149 S.W.3d 125, 132–34 (Tex. Crim. App.

2004). Restated, a defendant must first admit that he committed the offense, offering

self-defense as a justification, to be entitled to a self-defense instruction. See Nailor,

149 S.W.3d at 133.



                                             19
       To qualify for a self-defense instruction, the defendant must meet the

requirements set out in sections 9.31 and 9.32 of the Texas Penal Code. Tex. Penal

Code Ann. §§ 9.31, 9.32. Section 9.31(a) justifies the use of force “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. § 9.31(a).

Section 9.32 justifies the use of deadly force “if the actor would be justified in using

force against the other under Section 9.31[,] and when and to the degree the actor

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

against the other’s use or attempted use of unlawful deadly force.” Id. § 9.32(a)(1),

(2)(A). “Deadly force” is defined as “force that is intended or known by the actor to

cause, or in the manner of its use or intended use is capable of causing, death or

serious bodily injury.” Tex. Penal Code § 9.01(3); See Ferrel v. State, 55 S.W.3d 586,

592 (Tex. Crim. App. 2001) (stating that force that results in serious bodily injury or

death is, by definition, deadly force).

                     b.     Deadly Force Justification

       To be justified in using deadly force in self-defense, the Penal Code does not

require that a defendant intend the death of an attacker.7 Alonzo v. State, 353 S.W.3d

778, 782–83 (Tex. Crim. App. 2011). Instead, the self-defense provisions focus on


       7
        Juanita died from her injuries. Accordingly, because Martinez used deadly
force, he was not entitled to a self-defense instruction on non-deadly force. See
Denman v. State, 193 S.W.3d 129, 135 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d).

                                              20
the actor’s motives and on the level of force used, not on the outcome of that use of

force. Id. at 783. If the defendant reasonably believed that the force was necessary to

protect himself against another’s unlawful use of force, and the amount of force

actually used was permitted by the circumstances, sections 9.31 and 9.32 apply,

regardless of the actual result of the force used. Id.

       The statute necessarily contemplates that the force used by a defendant must

be reasonable as contemplated from the defendant’s point of view. Reed v. State,

703 S.W.2d 380, 384 (Tex. App.—Dallas 1986, pet. ref’d) (per curiam). The record

therefore must contain some evidence of the defendant’s state of mind or observable

manifestations of the defendant’s state of mind at the time of the alleged act of self-

defense. Id. at 385. That evidence must show the defendant had “some immediate

apprehension or fear of being the recipient of the unlawful use of force by the

complainant.” Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984); Garcia v.

State, No. 05-12-01693-CR, 2014 WL 1022348, at *6 (Tex. App.—Dallas Mar. 13,

2014, pet. ref’d) (mem. op., not designated for publication) (“When the force used is

deadly force, as in this case, the defendant must show he believed he was in

immediate apprehension or fear that the deceased was about to kill or seriously injure

him.”).




                                            21
              3.     Analysis

                     a.   Evidence of Belief of Immediate Apprehension or Fear

       We examine the record to determine whether there was some evidence to show

that Martinez reasonably believed that his use of deadly force was immediately

necessary to protect himself against Juanita’s possible use of unlawful deadly force.

Id.   In his recorded interview, Martinez admitted that he hit Juanita after she

ostensibly slapped him first. He explained that he covered Juanita’s mouth until she

stopped moving because she was screaming after he hit her, and Juanita’s screaming

scared him.

       However, a blow to the face with an open or closed hand does not justify

deadly force. Ogas v. State, 655 S.W.2d 322, 324 (Tex. App.—Amarillo 1983, no pet.);

see Smith v. State, 638 S.W.2d 208, 210 (Tex. App.—Fort Worth 1982, no pet.) (holding

that appellant was not justified in using deadly force against the decedent because use

of deadly force could not have reasonably been believed to be immediately necessary to

protect himself against decedent who struck defendant and pulled a gun but did not

advance). This evidence does not show that Martinez hit Juanita or covered her

mouth because he believed he was in immediate apprehension or fear that Juanita was

about to kill or seriously injure him. See Ogas, 655 S.W.2d at 324; see also Smith,

638 S.W.2d at 210.

       Forensic testing showed that Martinez could not be excluded as a contributor

of DNA evidence retrieved from Juanita’s fingernails. Although Martinez asserted

                                           22
that Juanita slapped him, and there was evidence that Juanita may have fought

Martinez, there is also evidence that Juanita’s hands bore defensive wounds, which

permitted the jury to infer that she may have fought Martinez while defending herself.

Many of the marks on Juanita’s neck were described as possibly self-inflicted from her

attempts to remove something from her neck. Rivera testified that someone told him

that Martinez was seen with scratches on his body the day after Juanita was killed.

However, this evidence does not show that Martinez reasonably believed that he was

in immediate apprehension or fear that Juanita was about to kill or seriously injure

him.

       While there was some evidence that Juanita’s skull and brain injuries were

consistent with a fall, the extent and brutality of those and other injuries were

significant and may have resulted from a hand or an object striking Juanita’s face or

from her face striking a hand or object. Juanita’s asphyxia and the markings and

injuries to her neck and throat were consistent with manual strangulation, which

required constant pressure for minutes. Juanita suffered trauma to her face; broken

ribs; significant internal injuries including hemorrhages, a torn kidney pole, and a

broken cricoid; and blunt force trauma to her head and body.

       Viewed in the light most favorable to him, we are unable to conclude that

Martinez’s evidence establishes that he used deadly force because he believed he was

in immediate apprehension or fear that Juanita was about to kill or seriously injure

him. See Ferrel, 55 S.W.3d at 591; Garcia, 2014 WL 1022348, at *6. Because no

                                         23
evidence supports granting Martinez’s requested self-defense instruction, the trial

court did not err by denying the instruction.

                     b.     Harmless Error for Failing to Instruct on Self-Defense

       But even assuming that the trial court erred by not including a self-defense

instruction in its charge to the jury, we conclude that the lack of instruction was

harmless.

       Error in the charge, if timely objected to in the trial court, requires reversal if

the error was “calculated to injure the rights of [the] defendant,” which means no

more than that there must be some harm to the accused from the error. Tex. Code

Crim. Proc. Ann. art. 36.19; Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App.

1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see

also Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In other words, a

properly preserved error, unless harmless, requires reversal. Almanza, 686 S.W.2d at

171. A reviewing court must consider and analyze: (1) the jury charge as a whole;

(2) the arguments of counsel; (3) the entirety of the evidence; and (4) other relevant

factors present in the record. Reeves, 420 S.W.3d at 816; see Almanza, 686 S.W.2d at

171 (“[T]he actual degree of harm must be assayed in light of 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.”).



                                             24
       Assuming that Martinez’s statement that Juanita slapped him first warranted a

self-defense instruction, and assuming that the trial court erred by failing to give the

requested instruction, we look first to the jury charge as a whole in analyzing whether

Martinez suffered some harm. In addition to its instructions regarding Martinez’s

presumption of innocence, his plea of not guilty, the State’s burden of proof, requisite

definitions and application paragraphs, and instructions on other matters, in its charge

the trial court instructed the jury on the elements of murder, manslaughter, and

criminally negligent homicide. As a whole, the jury charge permitted the jury to acquit

Martinez, or if it believed the State had established the elements of the respective

offense beyond a reasonable doubt, to find Martinez guilty of murder, manslaughter,

or criminally negligent homicide.

       We next look to “other relevant factors in the record.” Reeves, 420 S.W.3d at

816.    Both Martinez and the State addressed self-defense during voir dire.

Collectively, those discussions comprised a total of nine pages of the 220 pages of

voir dire. Noting that self-defense is an issue that may be raised during a murder trial,

the State explained that to assert self-defense, a person must not provoke an action

and must hold a reasonable belief that a use of force is immediately necessary to

protect himself from unlawful force being used against him, and the responding force

must be proportional. Defense counsel noted that a person is justified in using force

against another person if the amount of force is reasonable, and the person perceives

that someone is going to use force against him. Defense counsel further explained

                                           25
that the defendant is responsible for presenting and proving that self-defense was

immediately necessary and clarified that there is no duty to retreat. Potential jurors

answered the State’s and defense counsel’s questions to demonstrate an understanding

of those requirements.

      Martinez’s recorded statement that Juanita had slapped him and that he hit her

was published to the jury. Graves also testified that in Texas, a slapped person cannot

brutally beat and strangle a person who slaps him and that a person who kills in self-

defense must have a very good reason to do so.

      During closing arguments, the State made a single reference to Juanita’s

purported slap.   The State contended that during his police interview, Martinez

minimized what he had done to Juanita. It asserted that if Juanita had slapped

Martinez, he had not beaten and strangled her as a result of being scared when she

screamed after he beat her. Rather, the State argued, Martinez entered Juanita’s

workplace with the intent to kill and repeatedly struck Juanita out of anger and

covered her mouth and nose to prevent her from screaming. These violent acts, the

State argued, were not accidental or reckless, but were intentional as evidenced by

Martinez’s strangling Juanita for minutes until she took her last breath. The State

urged the jury to not be confused by language in the charge regarding recklessness and

criminal negligence, because the cause of Juanita’s death was not accidental.

      Defense counsel argued that the case was not about Martinez or Juanita but

instead was about A.L. and admitted that Martinez’s acts were neither accidental nor

                                          26
intentional but were reckless, an element which is required to support a manslaughter

conviction. See Tex. Penal Code Ann. § 19.04. Defense counsel acknowledged that

Martinez pushed Juanita with such force that her skull fractured when striking a

doorknob, that the bruising on her face was possibly caused by striking the toilet, and

that her neck bore strangle marks. Counsel argued that Martinez “meant” but did not

intend what he did. Rhetorically asking what could cause a person to be so brutal and

violent, defense counsel answered that on learning that he might lose full access to his

son, either by being denied full custody or permission to travel with him, and that his

son might never meet his purportedly ill grandfather and would be living with Juanita

and Carlos, Martinez’s passion and love for his son caused him to behave recklessly in

an angry, brutal, and violent manner toward Juanita. At worst, defense counsel

argued, Martinez was guilty of manslaughter because of his reckless conduct. Defense

counsel made no reference during closing argument to Juanita’s alleged act of slapping

Martinez, did not suggest that a slap triggered Martinez’s subsequent violent acts, and

did not argue that Martinez acted in self-defense.

      Neither Martinez’s evidence nor the evidence as a whole shows that Martinez

believed he was in immediate apprehension or fear that Juanita was about to kill or

seriously injure him such that his use of deadly force against Juanita would be

permitted in self-defense. See Ferrel, 55 S.W.3d at 591; Smith, 676 S.W.2d at 585. The

jury was permitted to find Martinez guilty of other lesser culpable charges but instead

determined that Martinez intentionally and knowingly killed Juanita, and in doing so,

                                          27
found that it was Martinez’s conscious objective or desire to kill Juanita or that he was

aware that his conduct was reasonably certain to cause her death. See Tex. Penal Code

Ann. § 6.03(a), (b).

       Looking at the entirety of the evidence, Martinez’s self-defense theory was

undermined throughout trial.      Significant evidence showed, among other things:

(1) that Martinez made travel arrangements to leave the country with A.L., sold his

motorcycle and personal belongings, and transferred the money to his father; (2) that

Juanita was fearful of Martinez and was seeking sole custody of A.L. and would be

moving with him to live with Carlos; (3) that Martinez did not park on December 12,

2014, in front of Juanita’s workplace, which was discovered locked with Juanita inside,

and that Juanita’s car was moved and parked away from her workplace on the day she

died; and (4) that after Martinez met with Juanita at her office, he did, in fact, leave

the country with A.L. as he had planned. This and other evidence, along with

evidence of Juanita’s brutal injuries and death, do not show that Martinez acted in

self-defense, and it is unlikely that a jury would have found that Martinez acted in self-

defense after rejecting the lesser-included charges of manslaughter and criminally

negligent homicide and finding him guilty of murder.

       Under this harm analysis, any error in failing to give the requested self-defense

instruction was not “calculated to injure the rights of [Martinez],” and we conclude

that Martinez suffered no harm from the trial court’s failure, if error, to grant the



                                           28
requested self-defense instruction. See Tex. Code Crim. Proc. Ann. art. 36.19; Abdnor,

871 S.W.2d at 732. We overrule Martinez’s first issue.

                                 IV. CONCLUSION

      Having overruled both of Martinez’s issues, we affirm the trial court’s

judgment.

                                                     /s/ Dana Womack

                                                     Dana Womack
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: May 16, 2019




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