                             NUMBER 13-13-00319-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

JOSE MACIAS,                                                                Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                       On appeal from the 214th District Court
                             of Nueces County, Texas.


                          MEMORANDUM OPINION
             Before Justices Benavides, Perkes, and Longoria
               Memorandum Opinion by Justice Benavides
       By three issues, appellant Jose Macias appeals his conviction for murder, a

first-degree felony.    See TEX. PENAL CODE ANN. § 19.02(b) (West, Westlaw through

2013 3d C.S.). Macias asserts that the trial court reversibly erred by:     (1) admitting

extraneous-offense evidence during the guilt-innocence phase of his trial; (2) refusing to

submit a jury charge instruction on criminally negligent homicide; and (3) denying
Macias’s request to properly instruct the jury on self-defense and defense of a third

party. We reverse and remand.

                                            I.       BACKGROUND

       A Nueces County grand jury indicted Macias for the 2012 murder of

twenty-one-year-old Casimiro Guerra III.                     Macias pleaded not guilty and was tried

before a jury.      The record reveals the following:

       On the evening of November 18, 2012, Alejandro Aparicio and Macias traveled to

a Stripes convenience store located at the corner of Ayers and Bevecrest in Corpus

Christi to purchase one ounce of marijuana from Homer Martinez.                   The record is clear

that Macias initiated the deal with Martinez by calling him on the telephone. According

to Aparicio, when he and Macias arrived at the Stripes, they entered the store to

purchase a drink.          A short time later, Aparicio and Macias exited the store to meet

Martinez, who was seated in the front-passenger seat of a Dodge vehicle parked next to

the store’s gas pumps. Jose Mondragon accompanied Martinez and sat in the driver’s

seat, while Guerra sat in the rear-passenger-driver’s-side seat.

       Aparicio approached the vehicle and spoke to Martinez while Macias stood in

front of the driver’s side of the vehicle as a “look out.” Aparicio acknowledged that he

only saw Martinez and Mondragon inside of the vehicle that night.                Aparicio testified that

he gave Martinez three hundred dollars in exchange for an ounce of marijuana and that

he observed a “black handgun” inside of the car. Aparicio stated that after he paid

Martinez, Martinez was “fiddling” with Aparicio’s money, and Aparicio told Macias that

“something wasn’t right.” At that point, Aparicio told Macias: “What the fuck? Strap!” 1


       1   Aparicio later clarified that “strap” referred to a gun.

                                                         2
and fell back, when the vehicle tried to “burn out” and leave the Stripes store. Aparicio

heard a single gunshot as the vehicle drove away.                  Aparicio and Macias then fled the

scene to Aparicio’s home.                 Macias told Aparicio that the firing of the gun was an

accident and that it “went off” as he was trying to pull the gun out.                   According to

Aparicio, Macias told him that “he knew something was up with that guy.” 2                       After

learning about Guerra’s death the next day, Aparicio and Macias turned themselves into

police.

          Martinez testified that he had sold drugs to Macias in the past, including the night

of November 18, 2012.                     Martinez corroborated several details from Aparicio’s

testimony, but contrary to Aparicio’s assertion, Martinez testified that he did not possess

a gun that night.           Martinez claims that he and Aparicio completed the drug deal and

then felt like “something [bad] was going to happen.”                      Martinez stated that as

Mondragon “drove off” after the drug deal, a shot was fired.              Martinez testified that after

the gunshot, Mondragon was “scared” and Guerra, who was in the back seat, said “I’ve

been hit.         I think I’m going to die.”           Martinez called 9-1-1, while Mondragon drove

Guerra to the hospital.

          Mondragon also testified and likewise corroborated much of Aparicio and

Martinez’s respective testimonies.                  However, Mondragon denied that anyone in the

vehicle possessed a gun.                 Mondragon recalled that while Martinez was dealing the

marijuana to Aparicio, Macias tried to open the driver’s door of the vehicle and pointed a

pistol at Mondragon’s face.              At that point, Mondragon drove away from the scene in his

vehicle, and “within seconds” Mondragon heard a gunshot and a window shatter.


          2   Aparicio did not specify “that guy[’s]” identity.

                                                            3
According to Mondragon, Guerra played no part in the drug deal, but was simply “going

along for the ride.”

         Martinez and Mondragon each testified that they initially lied to the police and told

detectives that Guerra’s death was the result of a carjacking.       Both said that they lied

because they were “scared.” The following night, however, Martinez and Mondragon

came clean and told police about the drug deal.           Mondragon told the jury that he

“shouldn’t have lied” to the police, but instead “should have told them the truth from the

get-go. . . .”   Macias did not testify.

         The trial court also admitted surveillance video footage taken from different angles

of the Stripes.     A review of the video angle facing the fuel pumps depicts the Dodge

vehicle pulling up to the pumps, and Aparicio and Macias approaching the vehicle a

short time later.      Aparicio walked to the front-passenger side of the vehicle, while

Macias stood near the front driver’s-side tire of the vehicle.        Later, Macias walked

toward the driver’s side of the vehicle, but is hidden by the gas pumps.     The Dodge then

drove away, and Macias fired his gun at the vehicle.         Macias and Aparicio ran away

from the scene after the shooting.

         Daniel Roberts, M.D., testified that he treated Guerra at Memorial Hospital that

night.    According to Dr. Roberts, Guerra was dead on arrival and had a gunshot wound

to his left shoulder down toward his heart.        Nueces County medical examiner Ray

Fernandez, M.D. testified that he later performed an autopsy of Guerra’s body and

opined that Guerra’s cause of death was a gunshot wound to the chest by homicide.

         The jury found Macias guilty of murder, see id., and assessed punishment at fifty

years’ imprisonment with the Texas Department of Criminal Justice’s Institutional


                                               4
Division. This appeal followed.

                               II.      JURY CHARGE INSTRUCTIONS

         By his second and third issues, Macias asserts that the trial court reversibly erred

by failing to instruct the jury on (1) the charge of criminally negligent homicide (second

issue); and (2) self-defense and defense of a third party (third issue).3 We address

each in turn.

A.       Standard of Review

         Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then

analyze that error for harm.         Id.   Preservation of charge error does not become an

issue until we assess harm.          Id. (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex.

Crim. App. 2003)).

         In assessing harm we first examine whether the defendant objected to the

erroneous charge.       Id.    If the defendant did not object, “then he must show that the

error was ‘fundamental’ and that he suffered ‘egregious harm.’”              Reeves v. State, 420

S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1985)). The appellant must show “actual, rather than theoretical,

harm.”     Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).                         Some

examples of egregious harm include those errors that “affect the very basis of the case,”

“deprive the defendant of a valuable right, or vitally affect a defensive theory.”                  Id.




        3 Because we reverse and remand on these two issues, we decline to address Macias’s first issue

regarding the admission of extraneous acts and offenses because disposition of that issue would not
provide Macias greater relief than a remand. See TEX. R. APP. P. 47.4.

                                                  5
(internal quotations and citation omitted). This particular standard is a “high and difficult

standard which must be borne out of by the trial record.”             Reeves, 420 S.W.3d at 816.

        If, however, the defendant properly objected, then he will obtain relief if the record

shows that he suffered “some harm.”            Id. This standard requires us to consider (1) the

jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence,

and (4) other relevant factors revealed by the record as a whole.               Wooten v. State, 400

S.W.3d 601, 606 (Tex. Crim. App. 2013).

B.      Criminally Negligent Homicide

        Macias argues that the trial court erred by denying a jury-charge instruction for

criminally negligent homicide because the evidence reveals that “Macias may not have

known there was a back seat passenger at all.” We disagree.

        Upon the defendant’s request, a lesser-included offense instruction shall be

included in the jury charge if:      (1) the requested charge is for a lesser-included offense

of the charged offense; and (2) there is some evidence that, if the defendant is guilty, he

is guilty only of the lesser offense.       Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim.

App. 2006).

        In this case, the trial court instructed the jury on the offenses of murder and the

lesser-included offense of manslaughter, but not on criminally negligent homicide, as

Macias requested in a written motion and, again, orally during the charge conference.4


        4We note that Macias’s motion entitled “Defendant’s Motion Request for Special Jury Instructions,”
requested the following instruction for criminally negligent homicide:

                Now bearing in mind the foregoing instructions, if you believe from the evidence
        beyond a reasonable doubt, that the defendant, JOSE ANGEL MACIAS, on or about
        November 18, 2012, in the County of Nueces, and State of Texas, as alleged in the
        indictment, did then and there cause the death of an individual, Casimiro Guerra, by
        criminal negligence, to wit: shooting Casimiro Guerra with a firearm, with the intent to

                                                    6
Criminally negligent homicide is a lesser-included offense of manslaughter, and likewise

murder, because it includes all the elements of manslaughter except for manslaughter’s

higher culpable mental state.           Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App.

2013). Manslaughter “involves conscious risk creation, that is, the actor is aware of the

risk surrounding his conduct or the results thereof, but consciously disregards it.”                      Stadt

v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005) (citing Lewis v. State, 529 S.W.2d

550, 553 (Tex. Crim. App. 1975)). Whereas criminally negligent homicide “involves

inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his

conduct or the result thereof [but fails] to perceive the risk.”                 Id. Therefore, because

criminally negligent homicide is a lesser included offense of manslaughter and murder,

the first prong of Guzman is met.

        We now turn to the second prong and determine whether some evidence would

permit a rational jury to find that Macias possessed the culpable mental state of criminal

negligence rather than recklessness.                  See id.       Macias argues that if he either

accidentally fired or fired a shot with the intent to scare, but not to hit anyone, the jury

could have found that he was unaware of the risk of killing Guerra under a theory of

        cause serious bodily injury to an individual, Casimiro Guerra, and that this act was clearly
        dangerous to human life; and that this act caused the death of Casimiro Guerra; you will
        find the defendant guilty of the offense of Criminally Negligent Homicide and so say by your
        verdict . . . .

       This definition is an improper criminally negligent homicide instruction because it includes the
language “with the intent to cause serious bodily injury,” which is one theory to find criminal culpability for
murder. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2013 3d C.S.).

         Regardless of Macias’s error, based on the record, we conclude that Macias properly called the trial
court’s attention to his request for a criminally negligent homicide instruction in writing, as well as orally on
the record. See Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (holding that a
defendant’s requested instruction need not be in “perfect form,” but rather “sufficient to apprise the trial
judge of the objection to the charge.”); see also TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw
through 2013 3d C.S.) (“The requirement that the objections to the court's charge be in writing will be
complied with if the objections are dictated to the court reporter in the presence of the court and the state's
counsel, before the reading of the court's charge to the jury.”).

                                                       7
criminally negligent homicide. We disagree.

           The court of criminal appeals addressed the second prong of this analysis in a

similar case styled Thomas v. State, 699 S.W.2d 845 (Tex. Crim. App. 1985) (en banc).

In Thomas, the defendant was indicted for murder, but was convicted of voluntary

manslaughter and sentenced to fifteen year’s confinement for the shooting death of Roy

Bishop, a restaurant owner, who had fought with Thomas.              On appeal, Thomas

complained that his request for inclusion of the charge of criminally negligent homicide

was erroneously denied by the trial court. In affirming the trial court’s judgment, the

court of criminal appeals reasoned that not every case in which someone points a loaded

gun at another or the allegation of accidental discharge raises the issue of criminally

negligent homicide.       See Thomas, 699 S.W.2d at 850.          Instead, the “attendant

circumstances from which the defendant’s mental state can be inferred must be

collectively examined in light of the definition of criminally negligent conduct.”       Id.

Furthermore, “evidence that a defendant knows a gun is loaded, that he is familiar with

guns and their potential for injury, and that he points a gun at another, indicates a person

who is aware of a risk created by that conduct and disregards the risk.”    Id.

           Here, the State elicited testimony from Officer Tidden and Ivana Bailey that

indicated Macias had familiarity with the gun and had fired the gun a month prior that

matched the ballistics to the one used in Guerra’s death.           Furthermore, firearms

examiner Curtiss testified that if someone pulls the trigger of a gun like one the used in

this case and is able to immediately fire the gun without pulling the chamber back and

forth, it indicates that the shooter had previously “chambered the bullet,” making it ready

to fire.     No evidence was presented to show that Macias pulled the chamber to his


                                              8
firearm prior to firing it at the Stripes on November 18, 2012. This evidence shows that

the level of awareness Macias had concerning the risk of injury or death involved in

pointing a loaded gun with a chambered bullet at someone or at a car with passengers

was such that he perceived the risk of harm that his conduct created.                  See id. at 852.5

Finally, even if a rational jury believed that Macias fired the gun in self-defense or by

accident, this does not show that he possessed the requisite mental state so that if guilty,

he was guilty only of criminally negligent homicide.            See Thomas, 699 S.W.2d at 850;

Guzman, 188 S.W.3d at 188.

        Therefore, because the evidence does not support Macias to a lesser-included

instruction on criminally negligent homicide under the second prong of Guzman, we find

no jury charge error. Macias’s second issue is overruled.

C.      Self Defense and Defense of a Third Party

        Lastly, Macias argues that Aparicio’s testimony shows that (1) Aparicio saw a gun

in Mondragon’s car, (2) “yelled out a warning to Macias,” and (3) caused Macias “to step

forward and, ultimately fire the single shot” obligated the trial court to submit his

requested self-defense and defense of a third party instructions to the jury.

        1. Charge Error

        It is well settled that an accused has the right to an instruction on any defensive

issue raised by the evidence, whether that evidence is weak or strong, unimpeached or


        5  The facts of this case differ from our opinion in Smith v. State, 721 S.W.2d 524, 527–28 (Tex.
App.—Corpus Christi 1986, no pet.). In Smith, this Court reversed and remanded for a new trial based on
the trial court’s failure to provide a criminally negligent homicide instruction on the grounds that the
defendant, who was not wearing his glasses, was “generally familiar with guns,” “unfamiliar with pistols,”
and aimed the “in the general vicinity of the victim but did not know why the gun went off.” Id. We
concluded that the record in Smith raised sufficient evidence to warrant a criminally negligent homicide
instruction. Here, however, those necessary facts found in Smith are not present. Accordingly, we find
Smith distinguishable and inapplicable for purposes of this opinion.

                                                    9
contradicted, and regardless of what the trial court may or may not think about the

credibility of the evidence.   Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).

On the other hand, if the evidence, viewed in the light most favorable to the defendant,

does not establish a defensive theory, the defendant is not entitled to an instruction on

the issue.   See Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Granger, 3

S.W.3d at 38.

       The trial court submitted the following relevant instruction to the jury on the issue

of self-defense:

       Now, if you find from the evidence beyond a reasonable doubt that on the
       occasion in question the defendant, JOSE ANGEL MACIAS, did cause the
       death of Casimiro Guerra by shooting Casimiro Guerra with a firearm, but
       you further find from the evidence, as viewed from the standpoint of the
       defendant at the time, that from the words or conduct, or both, of Casimiro
       Guerra 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
       of Casimiro Guerra, and that acting under such apprehension and
       reasonably believing that the use of deadly force on his part was
       immediately necessary to protect himself against Casimiro Guerra’s use or
       attempted use of unlawful deadly force, and that a reasonable person in
       defendant’s situation would not have retreated, then you should acquit the
       defendant on the grounds of self-defense . . . .

Next, the trial court submitted the following relevant instruction to the jury on the issue of

defense of a third person:

       Now, if you find from the evidence beyond a reasonable doubt that on the
       occasion in question the defendant, JOSE ANGEL MACIAS, did cause the
       death of Casimiro Guerra by shooting Casimiro Guerra with a firearm, but
       you further find from the evidence, as viewed from the standpoint of the
       defendant at the time, that from the words or conduct, or both, of Casimiro
       Guerra it reasonably appeared to the defendant that the life of Alejandro
       Aparicio was in danger and there was created in his mind a reasonable
       expectation or fear of Alejandro Aparicio’s death or serious bodily injury
       from the use of unlawful deadly force by Casimiro Guerra, and that acting
       under such apprehension and reasonably believing that the use of deadly
       force on his part was immediately necessary to protect Alejandro Aparicio

                                             10
        against Casimiro Guerra’s use or attempted use of unlawful deadly force,
        and that a reasonable person in defendant’s situation would not have
        retreated, then you should acquit the defendant on grounds of defense of
        third person . . . .

Macias objected6 to the trial court’s self-defense instruction and requested the following

instruction in its place:

        Now, if you find from the evidence beyond a reasonable doubt that on the
        occasion in question, the Defendant, Jose Angel Macias, did cause the
        death of Casimiro Guerra by shooting Casimiro Guerra with a firearm, but
        you further find from the evidence as viewed from the standpoint of the
        Defendant at the time, that from the words or conduct or both of another it
        reasonably appeared to the Defendant that his life or person was in danger
        and there was creating in his mind a reasonable expectation of fear of
        death or serious bodily injury from the use of unlawful deadly force of
        another and that acting under such apprehension and reasonably believing
        that the use of deadly force on his part was immediately necessary to
        protect himself against another's use or attempted use of unlawful deadly
        force. . . .

Likewise, Macias objected and requested the following instruction on the issue of

defense of a third person:

        Now, if you find from the evidence beyond a reasonable doubt that on the
        occasion in question, the Defendant, Jose Angel Macias, did kill Casimiro
        Guerra by shooting him with a firearm, namely, a gun, as alleged in the
        indictment, but you further find from the evidence as viewed from the
        standpoint of the Defendant at the time, that from the words or conduct or
        both of another, it reasonably appeared to the Defendant that his life or
        person was in danger and there was created in his mind a reasonable
        expectation of fear or death—of fear of death or serious bodily injury from
        the use of unlawful deadly force at the hands of another and that acting
        under such apprehension and reasonably believing that the use of deadly
        force on his part was immediately necessary to protect himself against
        another's use or attempted use of unlawful deadly force, he shot Casimiro
        Guerra with a gun and that a reasonable person in Defendant's situation
        would not have retreated . . . .

        Absent a few exceptions, see TEX. PENAL CODE ANN. § 9.31(b) (West, Westlaw
         6 The State, again, raised the question of whether Macias properly preserved error on this issue.

Like Macias’s second issue, we hold that error was preserved because Macias properly apprised the trial
court of its objections to these portions of the charge, and the trial court noted these objections. See TEX.
CODE CRIM. PROC. ANN. art. 36.14.

                                                    11
through 2013 3d C.S.), a person is justified in using force against another when and to

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

the actor against the other's use or attempted use of unlawful force.          Id. § 9.31(a)

(emphasis added). Furthermore, as applied to this case, section 9.33 of the penal code

provides that “a person is justified in using force or deadly force against another to

protect a third person if” the actor would be justified under section 9.31 “in using force or

deadly force to protect himself against the unlawful force or unlawful deadly force he

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

actor reasonably believes that his intervention is immediately necessary to protect the

third person.” Id. § 9.33 (West, Westlaw through 2013 3d C.S.) (Defense of Third

Person) (emphasis added). The language of these provisions logically implies that “the

other” who uses or attempts to use unlawful force as indicated in subsection (a) of

section 9.31 is “the person against whom the force was used.”      See id. § 9.31(a)(1).

       Applied to this case, “the other” would be the victim, Casimiro Guerra.    However,

the record is devoid of any evidence that would support the defensive instructions

provided to the jury.   Aparicio testified that he saw only Mondragon and Martinez in the

vehicle that evening.    Furthermore, aside from acknowledging that he was present in

the back seat of the vehicle, neither Mondragon nor Martinez testified that Guerra

participated in the drug deal, spoke to Aparicio or Macias, or even made his presence

known during the transaction. We disagree with the trial court’s rationale in overruling

Macias’s objection that the way the charge was worded “track[ed] the law better” and

would remain as submitted to the jury.      Instead, the evidence, specifically Aparicio’s

testimony that he only observed Martinez and Mondragon in the vehicle and that the he


                                             12
yelled out “strap,” supported a defensive instruction that would include Martinez and/or

Mondragon’s name, and not Guerra’s, as the aggressor.

        Additionally, despite the State’s argument7 during the charge conference, the trial

court failed to include a limiting application instruction to the defensive instructions

pursuant to section 9.05 of the penal code if it had found that Macias acted recklessly.

See TEX. PENAL CODE ANN. § 9.05 (West, Westlaw through 2013 3d C.S.) (“Even though

an actor is justified under this chapter in threatening or using force or deadly force

against another, if in doing so he also recklessly injures or kills an innocent third person,

the justification afforded by this chapter is unavailable in a prosecution for the reckless

injury or killing of the innocent third person.”).

        As a result, we conclude that the trial court erred in providing the self-defense and

defense of a third person instruction to the jury because such defensive issues—as

instructed—were not raised by the evidence.                      See Granger, 3 S.W.3d at 38.

Furthermore, the trial court erroneously failed to include the limitation instruction as

provided by Texas Penal Code section 9.05.                Having found charge error, we will now

assess for harm.       See Ngo, 175 S.W.3d at 743.




        7 We note that the State’s appellate counsel—who did not try the case, but argued on behalf of the

State during the charge conference—asserted the following:

        Okay. Yes, Your Honor. I think that they're probably entitled to a self-defense instruction
        on the murder charge, even if it was another party that unintendedly got killed. But the way
        that [penal code section 9.05] reads, if we're proceeding on manslaughter, I think in that
        case, self-defense is inapplicable. I think probably you would want to charge it, charge all
        the sections in the general charge, in the application paragraph, you might want to specify
        that [section 9.05] would exclude self-defense for reckless conduct, whereas the murder
        we're charging intentional or knowing and [section 9.05] has nothing to say about that. So
        I think they're probably right, self-defense would apply to the murder, but not to the
        manslaughter, the lesser.


                                                    13
      2. Harm Analysis

      We will reverse if the record reveals “some harm.”       Reeves, 420 S.W.3d at 816.

Macias argues that he suffered some harm because the error in this case “left [the jury]

with an incorrect filter through which to evaluate the evidence” and consider the

defenses that the evidence supported. We agree.

            a. The Jury Charge

      We begin our analysis by first looking to the charge as a whole.         See Wooten,

400 S.W.3d at 606.      Although the charge, as submitted, contained an instruction on

self-defense and defense of a third person, the application paragraphs of both

instructions are erroneous because both instructions limited Macias’s right to

self-defense and defense of a third party solely as to Guerra’s actions prior to the

shooting.    This error, in effect, caused the jury to shift its focus away entirely from the

actions of the purported aggressors (Martinez and/or Mondragon) to Guerra, the victim,

who played no role in the drug deal and whose presence was unknown to Aparicio or

Macias.

      In further analyzing the charge as a whole, we consider the appellate presumption

that the jury is presumed to have understood and followed the court’s charge absent

evidence to the contrary.    See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App.

1996). Under this presumption, we must presume that the jury followed the erroneous

instruction which authorized a finding of self-defense or defense of a third party only if

the jury believed that “from the words or conduct, or both, of Casimiro Guerra it

reasonably appeared to the defendant” that his life or Aparicio’s life was in danger.

Under this erroneous instruction, the only way the jury could have made these affirmative


                                             14
defensive findings would have been to completely ignore the evidence and record before

it.

         We also note that this error occurred in the application paragraph of the charge.

“The application paragraph is that portion of the charge which authorizes the jury to act.”

Id.    Although the charge generally contained a correct statement of law with regard to

self-defense and defense of a third party, see TEX. PENAL CODE ANN. §§ 9.31, 9.33, the

instruction did not authorize the jury to consider whether Macias was justified under

either defensive theory based upon the “words or conduct, or both,” of Martinez and/or

Mondragon.

         Nothing in the record suggests that the jury did not understand or follow the

court’s charge, and we must presume that it is possible that Macias was convicted by a

jury that may have wanted to, but was not allowed to, take into account Mondragon or

Martinez’s actions when considering Macias’s defensive claims, or how section 9.05

limits the defensive finding on reckless conduct.   See Sparks v. State, 177 S.W.3d 127,

134–35 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

            b. Counsel’s Argument

         Second, we examine the arguments of counsel.       See Wooten, 400 S.W.3d at

606.     During closing arguments, Macias’s lead trial counsel emphasized the defense of

a third person defensive theory for the jury and asked them decide whether Macias’s

action in defending Aparicio were “reasonable” in spite of the “emotional toll” of Guerra’s

death.    Macias’s co-defense counsel focused a majority of his argument on Macias’s

recklessness and argued to the jury to find Macias guilty of the lesser-included offense of

manslaughter rather than the more serious charge of murder.


                                            15
       The State’s lead trial counsel, however, highlighted the erroneous self-defense

instruction and argued the following to the jury:

       In order for you to even consider self-defense, he had to have thought that
       he was gonna get shot or the threat of being shot. But, you know what? I
       want you to pay attention to [paragraph] 15. And, when you put it into
       words, it says: “From the standpoint of him, Jose Macias, from the words or
       conduct or both of Casimiro Guerra, did it reasonably appear to him that his
       life was in danger?” Defense just got up here two seconds ago and said
       there's no testimony that this guy ever said anything. And then, they, also,
       wanna argue, “You know, he didn't even see that guy.” But he was so
       scared of that guy who they're claiming that didn't even know exists, that he
       had to shoot someone. Self-defense does not make sense in this case,
       and when you see the wording of it, I think, you're gonna find that clear.

       Co-counsel for the State also highlighted the erroneous jury charge instruction

and emphasized that no evidence would sustain an affirmative finding of either defensive

theory:

       They talked about self-defense. Self-defense is laughable. If you look at
       the Charge, page seven, it refers to self-defense. And it's—it's wordy, but
       what self-defense says is that, if Casimiro Guerra—it said, "if the words or
       conduct or both of Casimiro Guerra"—and I underlined it three times—that,
       if his actions created in Mr. Macias's mind a reasonable expectation that
       Mr. Macias was in—should be in fear of his death or serious bodily injury
       from the use of the—or unlawful deadly force of Casimiro Guerra? There is
       no indication that Casimiro Guerra did anything. He sat there. He didn't
       have a gun. Nobody said he had a gun. Nobody said—even Mr. Aparicio,
       nobody said Casimiro Guerra had a gun, pulled a gun, shot a gun, said
       anything, did anything at all to Mr. Macias. In fact, Mr. Macias has said, "I
       didn't know he was there." That's—that's what y'all are getting from this,
       that's what his lawyers are telling you guys, is that he doesn't think that
       there's anybody there. There's no indication that Mr. Guerra did anything
       like that.

       And if you look on the next page, we talk about third person, defense of
       third person. I guess, the argument is he was defending Mr. Aparicio.
       There the same thing. Talks about what was the words and conduct of
       Casimiro Guerra and did this man have to defend Aparicio by shooting
       Casimiro Guerra? Well, Casimiro Guerra didn't do anything to Mr. Aparicio,
       either. There's no indication he did. So those are just right out. I don't even
       know why that's in the Jury Charge, but if you ask for it, it's in the Charge,
       so that's in the Charge. But I don't think there's any evidence about that.

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           c. The Evidence

       Next, we look at the state of the evidence, including the contested issues and

weight of probative evidence.    See Wooten, 400 S.W.3d at 606; Almanza, 668 S.W.2d

157, 171 (Tex. Crim. App. 1984) (en banc) (op. on reh’g).    As highlighted previously, the

jury had conflicting testimony from three out of the five individuals who were present the

night of November 18, 2012.      Aparicio testified that he witnessed a gun in the vehicle

and saw Martinez “fiddling with the [drug] money” and remarked to Macias that

“something wasn’t right” before he yelled out “strap” and fell back just before Macias fired

his gun.   Martinez and Mondragon denied that either possessed a gun that night.

Martinez testified that he felt like “something [bad] was going to happen” that night prior

to the shot being fired. Mondragon testified that Macias attempted to open the driver’s

door of his vehicle and shoved a pistol in his face prior to the gunshot.      Martinez and

Mondragon both admitted that they each initially lied to the police about the events that

evening, but later told them the truth.

       The jury also viewed surveillance footage from the Stripes store, which depicted

the entirety of the transaction and heard testimony from the investigating police officers.

Dr. Fernandez, the medical examiner, testified that the gun shot entered Guerra’s upper

left arm, exited his upper left arm, and entered the left-side of his chest.   Furthermore,

Dr. Fernandez testified that if “something” was in between Guerra and the shooter, such

as a window, Guerra’s wounds indicated that the shooter fired from the driver’s side of

the vehicle.

           d. Other Relevant Information

       Finally, we address any other relevant information revealed by the record as a

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whole.     See Wooten, 400 S.W.3d at 606. As noted in footnote 7, the State along with

the defense proposed a self-defense instruction fused with a section 9.05 limitation

instruction. See Sparks, 177 S.W.3d at 133 n.5 (describing the proper way a trial court

should instruct a jury pursuant to penal code section 9.05 along with a self-defense

instruction). The trial court responded to the proposal by stating: “Well, if it's prepared

that way, then we'll probably entertain it and put it—are they doing that right now?” The

State’s prosecutor then replied by stating: “I’ll make sure that they get it that way, Judge.”

A review of the charge, however, shows that despite the State’s assurances on the

section 9.05 limiting instruction, such an instruction was not provided in the charge. We

also find no objection from the State in the record with regard to the self-defense

instruction and a lengthy discussion—with generally no objection from the State—about

the defense of a third person instruction.

            e. Summary

         The trial court’s inclusion of Guerra’s name in the self-defense and defense of a

third party instruction harmed Macias because this error denied Macias an opportunity to

present proper defensive theories that were raised by the evidence.        See Warner, 245

S.W.3d at 461.     Additionally, the charge also did not include the appropriate instruction

that harmonized the defensive theories with section 9.05, as argued by the State and the

defense during the charge conference. This error allowed the jury to find Macias: (1)

guilty of murder or manslaughter; or (2) not guilty based upon legally insufficient

defensive theories.    As such, we conclude that the denial and non-inclusion of his

requested instructions prevented Macias from presenting a proper defensive theory for

the jury to accept or reject, and this harmed Macias. We sustain Macias’s final issue.


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                                  III.   CONCLUSION

       Because Macias was harmed by the trial court’s erroneous jury instruction on the

issues of self-defense and defense of a third person, we reverse the trial court’s

judgment and remand for a new trial.



                                                      /s/ Gina M. Benavides
                                                      GINA M. BENAVIDES,
                                                      Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
12th day of March, 2015.




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