                                              OPINION
                                         No. 04-10-00623-CR

                                     Gerardo ECHAVARRIA Jr.,
                                              Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 229th Judicial District Court, Starr County, Texas
                                   Trial Court No. 09-CRS-112
                         Honorable Alex William Gabert, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: December 30, 2011

AFFIRMED

           Gerardo Echavarria Jr. was convicted of murder and sentenced to fifty years in prison.

Echavarria appeals, contending the trial court committed charge error, made erroneous

evidentiary rulings, and allowed the prosecutor to make improper arguments during the

punishment phase of the trial. We affirm the trial court’s judgment.
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                                              FACTS

       During the early morning hours of February 28, 2009, Echavarria shot and killed Juan

Raul Requenez in Rio Grande City, Texas. Echavarria admits he killed Requenez, but testified

he did so because Requenez and Eloy Garcia Jr. had threatened to kill him. Witnesses testified

that Echavarria and his fiancé, Georgina Medina, had been visiting and drinking with several of

Medina’s friends, first at a restaurant, then at a fair in Rio Grande City, and finally at Eloy

Garcia Jr.’s house.   The shooting occurred after everyone except Echavarria, Garcia, and

Requenez had left. Garcia testified the men were outside the house talking, and Echavarria

became angry when Requenez said that Medina was like a sister to him. According to Garcia,

Echavarria put his beer on the ground and challenged Requenez to a fight. Echavarria grabbed at

a beer that Requenez was holding, and Requenez responded by striking Echavarria in the face.

The men exchanged blows until Echavarria finally got Requenez in a chokehold. Garcia testified

he had not intervened in the fight before that time, but when Echavarria started choking

Requenez, Garcia pulled on Echavarria’s arm and told him to let Requenez go. Requenez

managed to get away and began walking to his truck. Echavarria followed him, pulled out a

handgun, and ordered Requenez to kneel down. According to Garcia, Echavarria pointed the

gun “point-blank” at Requenez’s face and pulled the trigger. The gun failed to fire. Requenez

walked away and entered his truck. Echavarria retrieved the ammunition clip for the weapon and

placed it into the weapon as he walked to Requenez’s truck. Garcia testified he saw Echavarria

fire three shots at Requenez, who was sitting in his truck. Echavarria then opened the truck door

and fired several more shots into Requenez.

       Echavarria testified that just before the fight began, Requenez was complaining about

Echavarria’s relationship with Medina. He said Requenez was upset that he could not see



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Medina as often as he wanted because of her relationship with Echavarria. Echavarria testified

he tried to mollify Requenez by putting his arm around his shoulder, but Requenez responded by

hitting Echavarria in the face. Echavarria testified he pushed Requenez and tried to back away,

but Requenez continued to strike him. When Echavarria was able to get a hold on Requenez,

Garcia grabbed Echavarria’s shoulders and knocked him to the ground.              Echavarria and

Requenez continued to wrestle on the ground. Echavarria testified that when he was again able

to get a grip on Requenez, Requenez exclaimed that he would kill Echavarria unless he let go.

Garcia pulled on Echavarria’s arms and Requenez got on top of Echavarria and continued to

strike him about the face. Echavarria testified he was able to pull a pistol from his waistband and

he cocked it. At the sound of the pistol being armed, Garcia and Requenez got up and ran.

Echavarria testified he saw the men running towards different trucks and he feared they were

going to retrieve weapons. Echavarria testified he was going to shoot at Garcia, but could not

see him because of blood pouring into his eye. When Echavarria heard Requenez open the truck

door, he turned and fired several shots at him. Echavarria testified he then turned his weapon on

Garcia, but realized Garcia did not have a weapon in his hands. He lowered his gun and called

911 to report the shooting. Police arrived at the scene and took Echavarria into custody.

       Echavarria gave a recorded statement to the police. In the recorded statement, which was

played for the jury, Echavarria stated he first fired at Garcia while Garcia was running away,

then turned and fired at Requenez. In both the recorded statement and his trial testimony,

Echavarria stated he fired his weapon because he thought the men, who had jointly attacked him,

were going to retrieve weapons and he feared for his life.




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                                           CHARGE ERROR

          The trial court instructed the jury on self-defense, apparent danger, multiple assailants,

and provoking the difficulty. However, Echavarria contends the instructions were insufficient to

properly advise the jury on the law of multiple assailants because the application paragraph of

the charge referred only to Requenez’s actions, rather than to the actions of both Requenez and

Garcia.

          The court’s abstract instructions to the jury on the law of self-defense included the

following paragraph:

                  When a person is attacked with unlawful deadly force, or he reasonably
          believes he is under attack or attempted attack with unlawful deadly force by one
          or more persons, and there is created in the mind of such person a reasonable
          expectation or fear of death or serious bodily injury at the hands of such
          assailants, then the law excuses or justifies such person in resorting to deadly
          force by any means at his command to the degree he reasonably believes
          immediately necessary, viewed from his standpoint at the time, to protect himself
          from such attack or attempted attack, and it is not necessary that there be an actual
          attack or attempted attack, as a person has a right to defend his life and person
          from apparent danger as fully and to the same extent as he would had the danger
          been real, provided that he acted upon a reasonable apprehension of danger, as it
          appeared to him from his standpoint at the time, and that he reasonably believed
          such force was immediately necessary to protect himself against the other
          person’s use or attempted use of deadly force.

The application paragraph on self-defense instructed:

                                                  IX.

                  Now, if you find from the evidence beyond a reasonable doubt that on the
          occasion in question the defendant, GERARDO ECHAVARRIA JR., did
          intentionally or knowingly cause the death of an individual, namely, JUAN
          RAUL REQUENEZ, by shooting JUAN RAUL REQUENEZ with a deadly
          weapon; to wit: a handgun, but you also find from the evidence that, viewed from
          the standpoint of the defendant at the time, from words or conduct of JUAN
          RAUL REQUENEZ that it reasonably appeared to the defendant that his life or
          person was in danger, and there was created in his mind a reasonable expectation
          or fear of death or serious bodily injury from the use of unlawful deadly force at
          the hands of JUAN RAUL REQUENEZ and that acting under such apprehension,
          the Defendant GERARDO ECHAVARRIA JR. reasonably believed that the use

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       of deadly force on his part was immediately necessary to protect him against
       JUAN RAUL REQUENEZ’s use or attempted use of unlawful deadly force, then
       you should acquit the defendant on the grounds of self defense, or if you have
       reasonable doubt as to whether or not the defendant was acting in self-defense
       against JUAN RAUL REQUENEZ’s use or attempted use of unlawful deadly
       force on the occasion and under the circumstances, then you should give the
       Defendant GERARDO ECHAVARRIA JR. the benefit of that doubt and,
       thereafter, find him not guilty of Murder, as alleged in the indictment.

       Echavarria presented his requested instructions to the court, asking that the application

paragraph of the charge instruct the jury that it could acquit if it found Echavarria reasonably

believed he was facing death or serious bodily injury “at the hands of the deceased or other

persons with the deceased, or any of them,” or to protect himself from the deceased’s use or

attempted use of unlawful deadly force or the use or attempted use of such force “by those

persons with the deceased.” The requested instruction also included a closing paragraph:

               You are further instructed that in so acting in self-defense, if he was so
       acting at the time, the defendant had a right to act in self-defense against JUAN
       RAUL REQUENEZ without regard to whether he was also in fear of death or
       serious bodily injury at the hands of ELOY GARCIA JR., and he also had a right
       to act in self-defense against ELOY GARCIA JR. if he was in fear of death or
       serious bodily injury at the hands of either ELOY GARCIA JR. or JUAN RAUL
       REQUENEZ.

The trial court denied the requested instructions and Echavarria objected to the application

paragraph of the charge for failing to refer to the conduct of Eloy Garcia Jr., as well as that of

Requenez.

       A trial court errs when it fails to provide an instruction on multiple assailants and self-

defense if the issue is raised by the evidence. See Frank v. State, 688 S.W.2d 863, 868 (Tex.

Crim. App. 1985). The defendant is entitled to a charge on a defensive issue if raised by the

evidence even if that evidence is weak or contradicted, and regardless of whether the trial court

finds the evidence credible. See id.; Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).

The multiple assailant instruction was explained by one judge as follows:

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               The theory behind the multiple assailants charge is that, when it is clear
       that an attack is being conducted by multiple people as a group, a defendant is
       justified in using force against any member of the group, even if the recipient of
       that force is not engaging in conduct that would, by itself, justify the use of force
       (or deadly force as the case may be). For example, if a defendant were trapped in
       a house with several hostile individuals, some of whom were brandishing firearms
       and threatening the defendant, the defendant may be justified in using deadly
       force against a different person who was blocking an exit that would otherwise be
       a viable path of retreat. The use of deadly force against the person blocking the
       exit would be justified, even though that person possessed no firearms and made
       no threatening moves, because of that person’s complicity with those who
       threatened the defendant’s life. The rule concerning multiple assailants is
       essentially an application of the law of parties to the defendant’s assailants.

Dickey v. State, 22 S.W.3d 490, 493 (Tex. Crim. App. 1999) (J. Keller concurring). Any error in

failing to properly charge on multiple assailants is reversible only if Echavarria was harmed. See

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). Because the

claimed error was preserved, we reverse only if the record shows Echavarria suffered some

actual harm as a result of the trial court’s failure to properly instruct the jury. See id.; Ngo v.

State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005); Dickey, 22 S.W.3d at 492.

       Echavarria’s testimony was sufficient to raise an issue of self-defense against multiple

assailants. He testified Garcia repeatedly grabbed him while Requenez was hitting him, and he

believed both men were attacking him. Echavarria testified Requenez threatened to kill him and

he feared both Requenez and Garcia were running to obtain weapons. Although the court gave

an abstract instruction on multiple assailants, it restricted the jury’s consideration of self-defense

in the application paragraph to only the actions of Requenez. We conclude the trial court erred

by failing to charge the jury in the application paragraph that it could consider the actions of both

Garcia and Requenez in deciding the self-defense issue. However, we also conclude the record

does not show Echavarria suffered actual harm from the error.

       Most of Echavarria’s testimony about why he reasonably believed deadly force was

immediately necessary to protect his life focused on Requenez’s actions. Although Echavarria
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stated once in his testimony that he feared both men were running to their respective trucks to

obtain weapons, Echavarria testified numerous times he shot Requenez because he believed

Requenez was reaching for a weapon. Echavarria told the jury that he first looked for, but did

not see, Garcia. Then he heard Requenez open the truck door and Echavarria focused his

attention on Requenez. If the jury had found Echavarria reasonably believed Requenez was

about to use unlawful deadly force against him, or if the jury had a reasonable doubt about the

reasonableness of Echavarria’s belief, it would have returned a “not guilty” verdict. By its

verdict, the jury found against Echavarria on this issue.

        It is illogical to conclude Echavarria was harmed by the court’s failure to properly

instruct the jury. There was more evidence to support a belief that Requenez was reaching for a

weapon than there was to support a belief that Garcia was going for a weapon. The original fight

was between Echavarria and Requenez. Echavarria testified it was Requenez who threatened to

kill him. And the only evidence Echavarria offered to support his belief that Garcia was going

for a weapon was that he was running in the direction of his truck. Although we conclude there

was sufficient evidence to entitle Echavarria to receive a jury instruction on joint attack, the

record does not show Echavarria suffered actual harm as a result of the charge error, and we

overrule his first issue.

                                            EXPERT TESTIMONY

        In his second issue, Echavarria argues the trial court erred by refusing to permit his expert

witness to testify about the training a Marine receives and how a trained Marine responds to a

threatening situation. 1 During a hearing held outside the presence of the jury, Gunnery Sergeant

Marcus Sugg testified he had been a Marine for eighteen years and possessed specialized

1
  Echavarria testified he enlisted in the Marine Corps in January 2004 and served until December 2006, when he
received an other than honorable discharge. During that time, Echavarria received specialized infantry training and
served eight months in Afghanistan.

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knowledge about how Marines are trained. He explained that boot camp and advanced weapons

training are designed to make Marines “act instinctively.” He stated that Marines are trained to

identify the threat and then eliminate the threat. Echavarria’s attorney argued the evidence was

admissible because:

        the witness . . . has specialized knowledge as to . . . how some of these Marines
        react under stressful situations under, uh, fights and which is the case here and it
        goes to the importance that the jury needs to consider the fact that whether he’s a
        cold-blooded murderer or whether instinct took over because of his training and
        his reaction was nothing more than, uh, not to excuse the act, Your Honor, but to,
        uh, explain to the jury that, uh, basically it was his training that kicked in and for
        that reason we would urge the Court to reconsider and allow Gunnery Sergeant
        Sugg to testify in the case.

The trial court sustained the State’s objection, and refused to permit Gunnery Sergeant Sugg to

testify before the jury.

        We review the trial court’s evidentiary ruling for abuse of discretion, and we uphold the

ruling if it is within the zone of reasonable disagreement. Davis v. State, 329 S.W.3d 798, 813-

14 (Tex. Crim. App. 2010). An expert’s testimony is not admissible unless it will “assist the trier

of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. The party

offering expert testimony must demonstrate by clear and convincing evidence the testimony “‘is

sufficiently reliable and relevant to help the jury in reaching accurate results.’” Tillman v. State,

No. PD-0727-10, 2011 WL 4577675 at *9 (Tex. Crim. App. Oct. 5, 2011) (quoting Kelly v.

State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992)).

        Echavarria argues Sugg’s testimony would have helped the jury understand he killed

Requenez because of his training as a Marine. But this was not an issue before the jury. Under

his defense of self-defense, a defendant’s conduct is excused if he formed a reasonable belief that

deadly force was immediately necessary to protect himself from another’s use or attempted use

of unlawful deadly force. See TEX. PENAL CODE ANN. § 9.32 (West 2011). The reasonableness

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of the belief is measured by the objective standard of an “ordinary and prudent man.” See id.

§ 1.07(42); see also Davis v. State, 104 S.W.3d 177, 181 (Tex. App.—Waco 2003, no pet.)

(“Although the jury employs an objective standard to determine the reasonableness of the

defendant’s belief, it must view the facts from the defendant’s perspective.”). How a trained

Marine instinctively reacts to a perceived threat is not relevant to the issue of whether an

ordinary and prudent man, viewing the circumstances from Echavarria’s viewpoint, would have

formed a reasonable belief that deadly force was immediately necessary to protect himself from

Garcia’s or Requenez’s use or attempted use of unlawful deadly force. The trial court’s decision

to exclude the evidence therefore was not outside the zone of reasonable disagreement. See

Werner v. State, 711 S.W.2d 639, 645 (Tex. Crim. App. 1986) (holding evidence that defendant

may have been influenced by his family’s experience in Holocaust when shooting victim was not

relevant to claim of self-defense because the evidence “only tended to show the possibility

appellant was not an ordinary and prudent man with respect to self-defense,” and this did not

entitle him to “an enlargement of the statutory defense on account of his psychological

peculiarities”).

                                      REMAINING ISSUES

        In his last two issues, Echavarria contends the trial court erred in admitting harmful

evidence of extraneous misconduct and in “allowing” the State to make “improper and

prejudicial” arguments to the jury. However, Echavarria did not object to the evidence or

argument at trial. He therefore failed to preserve any error for appellate review. See TEX. R.

APP. PROC. 33.1; Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).




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                                         CONCLUSION

      The judgment of the trial court is affirmed.



                                                Steven C. Hilbig, Justice


Publish




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