       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-18-00221-CR


                                 Federico Trejo, Jr., Appellant

                                                v.

                                  The State of Texas, Appellee




               FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
        NO. CR2016-020, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted Federico Trejo of murder, assessing punishment at fifty-five

years’ imprisonment.    See Tex. Penal Code § 19.02(b)(1).        The district court rendered its

judgment of conviction consistent with the jury’s verdict. On appeal, Trejo complains that the

district court’s charge erroneously included: (1) an instruction on provocation; (2) an instruction

limiting self-defense while carrying a weapon and seeking an explanation; and (3) instructions

that improperly merged provocation and seeking an explanation while carrying a weapon

unlawfully. We will affirm the judgment of conviction.


                                        BACKGROUND

               Trejo was charged with murdering Domingo Perez, Jr. by shooting him during an

early-morning confrontation at a gas station. Trejo first met Perez about three weeks before the

murder. They were not on good terms after Perez initiated an affair with Trejo’s wife, Jessica
Trejo.1 Trejo, Jessica, and their three children lived with his mother, Dora, and his father at the

Vista del Sol Apartments in New Braunfels.

               A video of Trejo’s statement to police was admitted into evidence. Trejo stated

that in the hours before the murder, Trejo, Jessica, their children, and some friends were

barbequing at the nearby Linde Apartments. Jessica drove to Walmart in an Avalanche truck to

get some bread for the barbeque. Trejo became suspicious that Jessica was taking too long, and

he rode his bicycle to the Walmart parking lot where he found Perez next to the truck Jessica was

in. Trejo threw his bicycle in the back of the truck, and he and Jessica left.

               During the drive, Trejo and Jessica got into an argument about her suspected

infidelity, which she denied. Jessica became upset, got out of the truck, and walked away. Trejo

drove back to the Linde Apartments, picked up his children, and returned home to the Vista Del

Sol Apartments.

               Meanwhile, Jessica called Perez’s cell phone asking him to pick her up from

Walmart. A police detective who reviewed Walmart’s surveillance footage testified that Perez’s

vehicle, a red Cutlass, arrived at about midnight in the Walmart parking lot. The detective stated

that a female that looked like Jessica walked over to Perez’s vehicle and got inside, and they

drove away. Jessica subsequently confirmed to police that she and Perez were having an affair.

               After Trejo was home, he made a phone call to Perez asking why Perez was

“doing all this,” and what Trejo ever “did to [him].” Perez told Trejo that Jessica was with him.

Trejo got “mad” and asked Dora to drive him around to look for Jessica.




       1  We refer to Federico Trejo’s wife and to his mother by their first names because they
share the same last name.
                                                  2
                Perez made a nighttime phone call to his wife sometime before the murder. She

testified that Perez said, “Somebody is just talking mess to me.” She told him to “[j]ust come

home,” but he did not.

                Trejo used Dora’s phone to make two calls to 911 before the murder, one at 12:40

a.m. and the other at 1:24 a.m. Recordings of the 911 calls were admitted into evidence and

played for the jury. In the first call, Trejo identified himself as “Jacob Sandoval” and reported

that “Mingo” was driving around in a red Cutlass with two loaded guns and “pointing guns out

of the car, just out of nowhere.” Trejo said that he had last seen him at the entrance to “the

Lindes” and that “he could be at Solms by Walmart or somewhere ‘round here in town parked

somewhere.” Trejo told the 911 dispatcher that “Mingo” was “really upset.” In the second call,

Trejo stated that he was calling because he heard a tip about a Cutlass that he had called about

earlier. Trejo stated that “this Cutlass, he was driving the back roads going toward 725, or going

toward 725 to his house.” Trejo also stated that “this guy is real dangerous.”

                Dora testified that Trejo asked her to go to Walmart to look for Jessica. Dora

drove Trejo to Walmart, but Jessica was not there, and they returned home. Around midnight,

Trejo asked Dora to take him to Jessica’s father’s house. Trejo put on a big jacket and concealed

his gun in the pocket. Dora denied seeing her son with a gun at any point. She testified that it

was “not really cold” enough for Trejo to wear the jacket that he did, and she asked him, “Why

are you wearing that?”2 Dora then drove Trejo in her van.

                Dora recalled that she was not going to the gas station, but Trejo directed her

there. Before she pulled into the driveway of the gas station, Trejo jumped out of her van. She




       2   The record does not reflect whether Trejo responded to her question.
                                                 3
saw him “running like crazy” toward a car in the parking lot.3 The car started to move after her

son started running toward it. Dora testified that she “heard a big noise” and thought that her son

had broken the car’s window. Dora decided to leave because she feared whoever was driving the

car would retaliate by hitting her van or that “he was going to come and get [her].” Trejo got

back into the van and they went back home.

               Trejo told police that while at a light at Ruckle Road, he saw Perez parked on the

side of a Shell gas station. Trejo said that he wanted to talk to Perez, and he described how he

approached Perez’s vehicle while gesturing with his arms and hands and yelling, “What’s going

on? Why are you doing all this?” Trejo stated that he fired one round from the passenger side of

Perez’s car. Trejo saw Perez’s car come to a stop as Trejo was leaving in the van.

               Surveillance video from the gas station and convenience store showed some

movements of Dora’s van and Perez’s car, but did not capture the shooting itself. Only twenty-

one seconds elapsed from the time that Dora’s van took a turnaround to get to the gas station to

the time that Perez’s vehicle rolled to a stop after the shooting. A forensic analyst who reviewed

the video evidence testified that the only time the victim’s car was “off camera” and in a “blind

spot” was during a 2.2-second interval when the shooting occurred. Various angles of the

admitted timestamped video show Perez exiting the convenience store and entering a parked red

car; the lights of Dora’s van approaching the car; both vehicles moving out of the camera’s view

at 1:57:49; the car reappearing at 1:57:51 and stopping diagonal to a set of gas pumps; and the

van driving across the convenience store’s parking spaces while leaving the gas station at

1:58:03.


       3 A brief portion of Dora’s videorecorded statement to police was admitted into evidence
for impeachment purposes and played for the jury.
                                                4
               A police officer testified he and another officer were on patrol when he observed

a car parked at a gas station at a “weird angle” between the air pumps and gas pumps that would

not allow access to either. He thought that the driver might need assistance or be passed out

drunk. The officers approached the vehicle on both sides. The windows were down, and the

officers reached inside to wake the driver—later identified as Perez—who was slumped across

the passenger seat of the vehicle. Medics were summoned after an officer detected a faint pulse

in Perez’s neck. The officers then removed Perez from the car. One officer began CPR and

noticed a bloodstream running down Perez’s side.          When officers rolled Perez over, they

discovered what appeared to be a gunshot wound.

               A forensic pathologist testified that Perez’s cause of death was a gunshot wound

to the back. She testified that the bullet entered Perez’s back on the right side, traveling slightly

upward as it passed through his lungs, aorta, and spleen and fracturing a rib before lodging in the

soft tissue of his body. She determined that when Perez was shot, the gun was fired from two or

more feet away from him.

               Trejo fled New Braunfels and was later apprehended by the Bell County

Organized Crime Unit in Harker Heights. In his statement to police, Trejo said that he shot

Perez accidentally when “shooting at the car” as Perez drove toward him. Trejo also told police

that he made several calls to 911 “because he [Perez] had pulled a gun on me at Lindes.”

               However, Dora testified that Trejo did not tell her anything about someone

pointing a gun at him earlier in the evening or that someone in a red car had threatened him.

Dora stated that Trejo told her, “I used a gun,” and that “he might have killed somebody.” She

denied that Trejo ever told her that what happened at the gas station was an accident.



                                                 5
                  After the parties rested their cases, the jury received the court’s charge addressing

the law of self-defense, provocation, and use of deadly force. See Tex. Penal Code §§ 9.31(a)

(self-defense), (b)(4) (provocation), 9.32 (use of deadly force). Trejo made no objections to the

court’s charge.

                  The jury returned a verdict finding Trejo guilty of murder.             During the

punishment phase of trial, the jury found that Trejo did not commit the murder under the

influence of sudden passion, and the jury assessed punishment at fifty-five years’ imprisonment.

The district court rendered judgment in accordance with the jury’s verdict. Trejo filed a motion

for new trial that was denied by operation of law. This appeal followed.


                                            DISCUSSION

                  All Trejo’s appellate issues complain of errors in the jury charge. The trial court

must deliver to the jury a written charge distinctly setting forth the law applicable to the case.

Tex. Code Crim. Proc. art. 36.14. Jury instructions must apply the law to the facts adduced at

trial and conform to allegations in the indictment. Sanchez v. State, 376 S.W.3d 767, 773 (Tex.

Crim. App. 2012). We review alleged jury-charge error in two steps: first, we determine whether

error exists; and if so, we evaluate whether any harm resulting from such error requires reversal.

See Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Price v. State, 457 S.W.3d

437, 440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g)); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).


Issue 1: Inclusion of instruction on provocation

                  In his first issue, Trejo complains that the district court’s charge improperly

included an instruction on provocation, a limitation on a claim of self-defense.

                                                    6
               Texas law provides that a person is justified in using deadly force against another

when, among other things, 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.

Tex. Penal Code § 9.32(a)(1), (2)(A). But “a defendant may forfeit his right to self-defense if he

provokes the attack.” Elizondo v. State, 487 S.W.3d 185, 197 (Tex. Crim. App. 2016); see Tex.

Penal Code § 9.31(b)(4).

               A jury instruction on provocation is required when there is sufficient evidence for

a rational jury to find beyond a reasonable doubt that: (1) the defendant did some act or used

some words that provoked the attack on him; (2) such act or words were reasonably calculated to

provoke the attack; and (3) 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. Elizondo, 487

S.W.3d at 197 (citing Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998)). Under this

standard, the trial court must determine whether “evidence has been presented that could support

a jury’s finding on all three elements of provocation beyond a reasonable doubt.” Id. (emphasis

in original); see Gomez v. State, No. 05-04-01272-CR, 2006 Tex. App. LEXIS 163, at *13 (Tex.

App.—Dallas Jan. 10, 2006, pet. ref’d) (mem. op., not designated for publication) (noting that it

is not reviewing court’s role to decide whether evidence actually established that defendant

provoked difficulty with intent to harm victim; rather, if evidence is sufficient to submit

provocation issue to jury, that question is within province of jury as factfinder and judge of

credibility). When reviewing a trial court’s decision to include a provocation instruction in a

jury charge, we view the evidence in the light most favorable to giving the instruction. Elizondo,

487 S.W.3d at 197.



                                                7
               The parties agree that the first two factors supporting a jury instruction on

provocation are met, i.e., the parties acknowledge that there was sufficient evidence for a rational

jury to find beyond a reasonable doubt that Trejo did some act or used some words that provoked

the attack on him and that such act or words were reasonably calculated to provoke the attack.4

See id. But the parties join issue as to the third and final factor, whether “the act was done or the

words were used for the purpose and with the intent that the defendant would have a pretext for

inflicting harm on the other.” See id. Situations where the jury is prevented from considering

the question of what the defendant’s intent was in provoking an attack from the deceased victim

are “exceptional and extraordinary.” Smith, 965 S.W.2d at 519.

               Here, the evidence at trial indicated that Trejo acted or spoke with the intent that

he would have pretext for inflicting harm on Perez. The jury heard recordings of 911 calls Trejo

made—identifying himself as “Jacob Sandoval”—reporting that “Mingo” was driving around in

a red Cutlass with loaded guns and “pointing guns out of nowhere.” Trejo also told the 911

dispatcher that “Mingo” was “really upset” and “this guy is real dangerous.” Trejo told police

that he made several calls to 911 “because he [Perez] had pulled a gun on me at Lindes.” But

Dora testified that Trejo did not tell her anything about someone pointing a gun at him earlier in

the evening or that someone in a red car had threatened him. Moreover, the forensic pathologist

testified that Perez was shot in the back. Based on this evidence, the jury could have reasonably

found that Trejo made statements to 911 and police to suggest that Perez was acting aggressively

and that Perez was the instigator of the events that occurred later at the gas station.




       4 Trejo’s brief states, “Mr. Trejo concedes that a rational jury may have found the first
two Smith elements of provocation, as Mr. Trejo did get out of his vehicle and go toward the
deceased’s vehicle while gesturing with his hands.”
                                                  8
               Further, a forensic analyst who reviewed the gas station’s video testified that the

only time the victim’s car was “off camera” and in a “blind spot” was during a 2.2-second

interval when the shooting occurred.       Various angles of the video show Perez exiting the

convenience store and entering a parked red car; the lights of Dora’s van approaching the car;

both vehicles moving out of the camera’s view at 1:57:49; the car reappearing at 1:57:51 but

stopping diagonal to a set of gas pumps; and the van driving across the convenience store’s

parking spaces while leaving the gas station at 1:58:03. Based on the video evidence and the

forensic analyst’s testimony, the jury could have reasonably found that Trejo pulled his gun and

shot Perez within seconds of confronting him at the gas station.

               Having considered the evidence at trial in the light most favorable to giving the

instruction, we conclude that the district court could have determined that such evidence would

support a rational jury’s finding beyond a reasonable doubt that Trejo acted or spoke with the

intent that he would have pretext for inflicting harm on Perez. See Elizondo, 487 S.W.3d at 197.

Accordingly, the district court did not err by including the provocation instruction in the jury

charge. We overrule Trejo’s first issue.


Issue 2: Inclusion of instruction on “seeking an explanation while carrying a weapon”

               In his second issue, Trejo contends that the district court’s charge improperly

included an instruction on “seeking an explanation [or discussion] while carrying a weapon,” a

limitation on his claim of self-defense that he says was not warranted by the evidence at trial.

               Texas law provides that the use of force against another in self-defense is not

justified if the actor sought an explanation from or discussion with the other person concerning

the actor’s differences with the other person while the actor was carrying a weapon unlawfully.


                                                 9
Tex. Penal Code § 9.31(b)(5)(A) (referencing unlawful carrying of weapons in section 46.02 of

Penal Code); see id. § 46.02. If there is evidence raising this issue, an instruction should be

submitted. Lee v. State, 259 S.W.3d 785, 790 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).

We consider the evidence in the light most favorable to giving the instruction to determine

whether there was sufficient evidence from which a rational jury could have found two elements:

(1) that Trejo sought an explanation from or discussion with Perez and (2) that Trejo was

unlawfully carrying a weapon. See Fink v. State, 97 S.W.3d 739, 743 (Tex. App.—Austin 2003,

pet. ref’d). Trejo challenges only the first element, contending that there is no evidence that he

sought out Perez and no evidence that he initiated any verbal dialogue with Perez at the gas

station to engage him in discussion or ask for an explanation. We disagree.

               The jury heard evidence that before the shooting, Trejo called Perez, who stated

that Jessica was with him. This made Trejo “mad.” Trejo put on a big jacket and concealed his

gun inside a pocket. Trejo asked Dora to drive him in her van, not the truck that Perez had seen

him driving earlier. Trejo told police that while at the light at Ruckle Road, he saw Perez parked

on the side of a Shell gas station. Trejo said that he wanted to talk to Perez, and Trejo described

to police how he approached Perez’s vehicle while gesturing with his arms and hands and

yelling, “What’s going on? Why are you doing all this?”

               Based on this evidence, a rational jury could have found that Trejo went looking

for Perez after confirming that Jessica was with him, and that when Trejo spotted Perez’s car at

the gas station, Trejo approached wanting to talk to Perez and seeking an explanation from him

about what “was going on” and why Perez “was doing all this.” Because there was evidence

raising the issue, we conclude that the trial court did not err by including an instruction in the

charge on seeking an explanation from or discussion with another person concerning the

                                                10
defendant’s differences with the other person while unlawfully carrying a weapon. See Lee, 259

S.W.3d at 790; Fink, 97 S.W.3d at 744; see also Tex. Penal Code § 9.31(b)(5)(A). We overrule

Trejo’s second issue.


Issue 3:   Merged instructions on provocation and seeking explanation while carrying
           weapon

              In his third issue, Trejo complains that the district court’s charge improperly

merged the jury instructions on provocation and “seeking an explanation while carrying a

weapon,” which improperly limited his claim of self-defense. Trejo contends that the instruction

on “Provoking the Use or Attempted Use of Force” misled the jury because “if they believed that

[he] merely approached the deceased’s vehicle without seeking an explanation,” this alone could

constitute provocation sufficient to rebut Trejo’s self-defense claim. Trejo also complains that

the application paragraph was erroneous because it omitted any language on seeking an

explanation or discussion while unlawfully armed. We disagree.

              The relevant portion of the complained-of charge states:


       Provoking the Use or Attempted Use of Force

       To prove that the defendant provoked the other, the state must show all of the
       following:

           1. The defendant did some acts or used some words that caused the other
              person to attack the defendant; and

           2. The acts or words by the defendant were reasonably calculated to provoke
              the attack; and

           3. The defendant did the acts or used the words for the purpose and with the
              intent that the defendant would have a pretext for killing the other person
              or inflicting serious bodily injury on him.



                                              11
However, a person who seeks an explanation from or a discussion with another
person concerning differences between them cannot use force in self-defense
while the person is carrying a weapon in violation of section 46.02 of the Texas
Penal Code.

Section 46.02 of the Texas Penal Code prohibits a person from intentionally,
knowingly, or recklessly carrying on or about the person a handgun, illegal knife,
or club if the person is neither—

   1. on the person’s own premises or premises under the person’s control; or

   2. inside of or directly en route to a motor vehicle or watercraft that is owned
      by the person or under the person’s control.

You must consider whether the state has proved, beyond a reasonable doubt, that
the defendant approached another person for the purpose of seeking an
explanation from or a discussion with that other person concerning their
differences while in violation of the Penal Code. If the state has proved this, you
should not apply a general rule that approaching another person, even while
armed, for the purpose of seeking an explanation from or a discussion with that
other person concerning their differences does not constitute provocation as
would deprive the person of the right to defend himself.

You must still determine whether the state has proved, beyond a reasonable doubt,
that the defendant provoked the other person. In making this determination,
however, you are not to assume that the defendant’s approach to the other person
is necessarily not provocation.

Burden of Proof

The defendant is not required to prove self-defense. Rather, the state must prove,
beyond a reasonable doubt, that self-defense does not apply to the defendant’s
conduct.

Definitions

“Reasonable belief” means a belief that an ordinary and prudent person would
have held in the same circumstances as the defendant.

“Deadly force” means force that is intended or known by the person using it to
cause death or serious bodily injury or force that in the manner of its use or
intended use is capable of causing death or serious bodily injury.




                                        12
       Application of Law to Facts

       If you have found that the state has proved the offense beyond a reasonable doubt,
       you must next decide whether the state has proved that the defendant’s conduct
       was not justified by self-defense.

       To decide the issue of self-defense, you must determine whether the state has
       proved, beyond a reasonable doubt, one of the following:

           1. The defendant did not believe his conduct was immediately necessary to
              protect himself against Domingo Perez, Jr.’s use or attempted use of
              unlawful deadly force; or

           2. The defendant’s belief was not reasonable; or

           3. The defendant provoked Domingo Perez, Jr.’s use or attempted use of
              unlawful deadly force.

       You must all agree that the state has proved, beyond a reasonable doubt, either
       element 1, 2, or 3 listed above. You need not agree on which of these elements
       the state has proved.

       If you find that the state has failed to prove, beyond a reasonable doubt, either
       element 1, 2, or 3 listed above, you must find the defendant “not guilty.”

       If you all agree the state has proved, beyond a reasonable doubt, each of the
       elements of the offense of Murder, and you all agree the state has proved, beyond
       a reasonable doubt, either element 1, 2, or 3 listed above, you must find the
       defendant “guilty.”


This charge tracks the instructions and definitions set forth in the Texas Criminal Pattern Jury

Charges as to a defendant’s claim of self-defense for an offense involving the use of deadly force

that also presents issues of provocation and approaching another while unlawfully armed. See

Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury Charges:

Criminal Defenses CPJC 31.17 & cmt., 32.3 & cmt. (2015).             These pattern jury charges

incorporate relevant sections of the Penal Code and provide a correct statement of the law. See

Tex. Penal Code §§ 1.07(a)(42) (defining “reasonable belief”), 9.01(3) (defining “deadly force”),


                                               13
9.31(a) (addressing self-defense), (b)(4) (addressing provocation), 9.32 (addressing use of deadly

force), 46.02(a) (addressing unlawful carrying of weapons). Further, the record of the charge

conference reflects that the district court and trial counsel for both parties specifically drafted this

charge to follow the criminal pattern jury charges.

               Accordingly, we are not persuaded by Trejo’s contentions that the district court

erred by providing a charge that “misled the jury” and “improperly limited his claim of self-

defense” through a merging of jury instructions on provocation and seeking an explanation while

carrying a weapon. See Lerma v. State, No. 03-18-00578-CR, 2019 Tex. App. LEXIS 7086, at

*8 (Tex. App.—Austin Aug. 14, 2019, no pet. h.) (mem. op., not designated for publication)

(rejecting defendant’s contention that court’s charge that tracked applicable criminal pattern jury

charges was erroneous); Preston v. State, No. 03-16-00573-CR, 2018 Tex. App. LEXIS 5412, at

*35 (Tex. App.—Austin July 18, 2018, no pet.) (mem. op., not designated for publication)

(concluding that defendant was not egregiously harmed by inclusion of self-defense instruction

that tracked instruction from criminal pattern jury charge); see also Reeves v. State, 420 S.W.3d

812, 818 n.30 (Tex. Crim. App. 2013) (noting that instructions from criminal pattern jury

charges on provocation “subdivide the various issues into short lists that jurors may read and

understand without undue difficulty”). We overrule Trejo’s third issue.




                                                  14
                                       CONCLUSION

              We affirm the district court’s judgment of conviction.



                                            __________________________________________
                                            Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed

Filed: March 20, 2020

Do Not Publish




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