                                                                       PD-0538-15
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                      Transmitted 6/1/2015 4:33:30 PM
                                                       Accepted 6/2/2015 11:13:10 AM
                         PDR NO. PD-0538-15                            ABEL ACOSTA
                                                                               CLERK
                COURT OF APPEALS NO. 05-13-01661-CR

                            IN THE TEXAS
                     COURT OF CRIMINAL APPEALS
                          AT AUSTIN, TEXAS

                        JULIO CESAR VILALBA
                             PETITIONER
                                 VS.
                        THE STATE OF TEXAS
                             RESPONDENT

_______________________________________________________
           PETITION FOR DISCRETIONARY REVIEW
                 OF THE OPINION OF THE
               FIFTH COURT OF APPEALS OF
                  DALLAS COUNTY, TEXAS
_______________________________________________________

                        ___________________
                        PETITION FOR REVIEW

                           DANNY D. BURNS
                           115 North Henderson Street
                           Fort Worth, Texas 76102-1040
 June 2, 2015              (817) 870-1544 FAX (817) 870-1589
                           State Bar No. 03443800
                           dburnslaw@sbcglobal.net



TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

     COMES NOW JULIO CESAR VILLALBA, Petitioner and

files this his Petition for Discretionary Review of the

decision of the Fifth Court of Appeals sitting in

Dallas, Dallas County, Texas.
              LIST OF INTERESTED PARTIES

JUDGES:                                 APPELLANT:
Hon. Tammy Kemp                 Julio Cesar Villalba
Judge 204th Judicial District
Court
Dallas, Texas 76196

TRIAL ATTORNEYS
Prosecuting Attorneys:
Hector H. Garza and
Andrew H. Anagnostis
Dallas County District Attorney’s Office
133 N. Riverfront Blvd, 9th Floor
Dallas, Texas 75207

Defense Attorneys:
Ramon Rincon
6060 North Central Expressway, St. 306
Dallas, Texas 75206

Jose P. Noriega
10300 North Central Expressway, St. 235
Dallas, Texas 75231

APPELLATE COUNSEL:
Mike Casillas, Assistant District Attorney
133 N. Riverfront Blvd, 10th Floor
Dallas, Texas 75207 Charles M. Mallin, Assistant

Ronald L. Goranson, Appellant’s Attorney
2828 Routh Street, St. 675
Dallas, Texas 75201

Danny D. Burns, Appellate Counsel for Defense on PDR
115 North Henderson Street
Fort Worth, Texas 76102-1940

/s/ Danny D. Burns
DANNY D. BURNS


                          ii
                     TABLE OF CONTENTS

LIST OF INTERESTED PARTIES............................ii

TABLE OF CONTENTS....................................iii

TABLE OF CASES AND AUTHORITIES.......................iv

STATEMENT REGARDING ORAL ARGUMENT..................... v

STATEMENT OF THE CASE................................. 1

STATEMENT OF JURISDICTION.............................5

PROCEDURAL HISTORY.................................... 5

POINTS FOR REVIEW..................................... 6

REASON FOR REVIEW NUMBER ONE.......................... 7
         THE COURT OF APPEALS HAS DECIDED AN
         IMPORTANT QUESTION OF STATE AND
         FEDERAL LAW WHICH IS CONTRARY TO CASES
         FROM THIS HONORABLE COURT DEALING WITH
         THE STANDARD FOR REVIEW OF A DENIAL OF
         A REQUESTED SELF DEFENSE CHARGE.

REASON FOR REVIEW NUMBER TWO..........................13
         THE COURT OF APPEALS HAS DECIDED AN
         IMPORTANT QUESTION OF STATE LAW WHICH
         IS CONTRARY TO CASES FROM THIS
         HONORABLE COURT DEALING WITH THE
         GIVING OF A CHARGE ON THE LESSER
         INCLUDED OFFENSE OF MANSLAUGHTER.

CONCLUSION AND PRAYER.................................17

CERTIFICATE OF SERVICE................................19

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . .   19

APPENDIX (OPINION)

                            iii
                    TABLE OF CASES

CASES:

Abdnor v. State, 871 S.W.2d 726
    (Tex.Crim.App., 1994). . . . . . . . . . . . .    14

Bell v. State, 693 S.W.2d434
    (Tex.Crim.App., 1985). . . . . . . . . . . . .    15

Ferrel v. State, 55 S.W.3d 586
    (Tex.Crim.App, 2001). . . . . . . . . . . . . . .       8

Hayes v. State, 728 S.W.2d 1987
    (Tex.Crim.App., 1987). . . . . . . . . . .      vi,11

Morales v. State, 357 S.W.3d 1
    (Tex.Crim.App., 2011). . . . . . . . . .     v,10, 11

Shaw v. State, 243 S.W.3d 647
    (Tex.Crim.App., 2007). . . . . . . . . . . . . .        8


AUTHORITIES

Texas Constitution,
    Article 5, Section 5. . . . . . . . . . . . . .     5

TEXAS PENAL CODE,
    Article 1.07(a)(43). . . . . . . . . . . v,7,10-11
    §19.02. . . . . . . . . . . . . . . . . . . vii,14
    §19.04(a). . . . . . . . . . . . . . . . vii,14,15




                          iv
                STATEMENT REGARDING ORAL ARGUMENT

       Petitioner requests the Court to grant oral argument

in this case.         The refusal of the trial court to                      grant

Petitioner      a     charge   on    self        defense      is    contrary    to

clearly established law by this Honorable Court.                               The

Court of Appeals applied a standard of review based upon

a     Penal    Code    definition           of   a      “reasonable     belief”

requiring a reasonable man standard of review.                               TEXAS

PENAL CODE, Article 1.07(a)(43).                       This Honorable Court

has    consistently         required     that        the    belief    that    self

defense is required must be viewed from the standpoint of

the defendant alone.             SEE:       Hayes v. State, 728 S.W.2d

1987 (Tex.Crim.App., 1987)              In this case, defense counsel

objected to the failure to give a charge of self defense.

The    Court    of     Appeals      rejected         the    point    using     the

definition      in    the    Penal   Code        for    “Reasonable     belief”

rather than the standard required for self defense, which

is    viewing    the    evidence        from      the      standpoint    of    the

defendant alone.             This Honorable Court in Morales v.

State, 357 S.W.3d 1, 3 (Tex.Crim.App., 2011) emphasized

that the reasonable belief required in a defense of a

                                        v
third party, the self-defense standard applies that the

defendant “may act against another in defense of a third

person, provided he acted upon a reasonable apprehension

of danger to such third person, as it appeared to him

from his standpoint at the time”.                        The Court of Appeals

reliance       on   a   reasonable           man    standard     deprived      the

Petitioner of a proper charge on self-defense.                            Looking

at the situation from Petitioner Villalba’s standpoint;

going    to    move     his     own    car     after      the    argument,     the

deceased,       without       further        provocation        travels    a   car

length in distance and slams into Petitioner’s vehicle,

with the female in the offending car yelling “Run him..”

would    cause      apprehension        of     death      or    serious    bodily

injury from the driver of the car, who still had the

ability to run over Petitioner Villalba.                        No man is fast

enough    to     out    run     a     car.         The    situation   demanded

immediate action.             This evidence justifies the jury’s

consideration of self-defense.                     The defense was entirely

based upon Petitioner Villalba’s right to defend himself

against some trying to run over him.                      There is nothing in

this    evidence        which       negates        the   necessity    of    self-

                                        vi
defense.    The error was clear, objected to, and harmful.

    The second reason for review involves the failure of

the trial court to give a charge on the lesser included

offense    of    manslaughter.           Manslaughter         is    recklessly

causing the death of an individual.                     TEXAS PENAL CODE,

§19.04(a)        The   charged        offense    of    murder      requires       a

showing that the individual intentionally or knowingly

caused    the death of another individual.                         TEXAS PENAL

CODE, §19.02.      The only difference between the two is the

requisite       mental    state.          Manslaughter        is     a    lesser

included    offense       of    murder.         Petitioner      Julio         Cesar

Villalba was entitled to the charge before the jury.                            The

evidence showed that at the time Petitioner Julio Cesar

Villalba fired what amounted to the fatal shots, he was

randomly    firing       into    the    car.     The    Court      of    Appeals

opinion    points      out     the    evidence       relied   upon       to    show

reckless    conduct.            The    Court    of    Appeals      notes       that

Villalba relied on testimony from Perry that showed it

was “one of them ‘I don’t care moments” and that he was

shooting in the car like “he didn’t give a damn who he

hit.”    (Opinion, p. 8)          Petitioner knew the Katisha Perry

                                       vii
and Troy were in the car.            The evidence was more than a

scintilla of evidence that Villalba did not intend to

kill    but   was    reckless   in    firing   into    the   window.

Petitioner Julio Cesar Villalba did not shoot Troy Fuller

when he was right in front of him, instead he fired into

the ground and into the air.          The evidence clearly raises

a fact issue which could have resulted in a conviction

for the lesser included offense.

       The error was established in each instance and the

harm is obvious.

       Petitioner Julio Cesar Villalba was entitled to both

a   charge    on    self-defense     as   judged   under    the   proper

standard for review, the standpoint of the defendant at

the     time,      and   the    lesser      included       offense    of

manslaughter.

       This Honorable Court should grant review in order to

address these issues.




                                   viii
                         STATEMENT OF THE CASE

    The Petitioner Mr. Julio Cesar Villalba was charged

by indictment with the offense of murder.                  (R., p. 21)

Mr. Julio Cesar Villalba pleaded not guilty.                (R., p. 9)

After   a   full   trial    starting       on   October   29,   2013    and

ending on November 1, 2013, the jury convicted Petitioner

Julio     Cesar    Villalba     of     murder      and    assessed      his

punishment at seventy (70) years in the Institutional

Division of the Texas Department of Criminal Justice.

(R., p. 9, 52, 59-60)

    Petitioner timely and properly filed a Motion for New

Trial   which      was    denied     and    Petitioner     Julio     Cesar

Villalba filed a notice of appeal on November 1, 2013.

    The State called Raymond Fuller, the father of Tory

Fuller.     (R., Vol. 6, p. 17)             He identified his son’s

photographs, both when his son was alive and one of him

after his death.          (R., Vol. 6, p. 22-23)           Tory Fuller

picked up Katisha Perry on August 11, 2012 at 4:00 in the

morning.     Tory and Katisha parked in front of a vacant

lot just two houses down from where Katisha lived.                     (R.,

Vol 6, p. 29)       Katisha said that Petitioner Julio Cesar

                                                                   PAGE 1
Villalba lived two houses down from her house.               (R., Vol.

6, p. 29)     She and Tory were “fooling around” in the back

seat of the car.        (R., Vol. 6, p. 37)           Petitioner Julio

Cesar Villalba started banging             on the car window and

saying “Get the ____ out in front of my house.”                      (R.,

Vol. 6, p. 35)       At first she did not notice that Villalba

had a gun because it was in a zip lock bag and had a

paper    on   it.     (R.,   Vol.   6,    p.    36)    She   said    then

Petitioner     Villalba      took   the   gun   and   knocked   on    the

window again.       Katisha then jumped over the seat and Tory

began pulling up his clothes.             Tory then exited the car

and went to the driver’s side of the vehicle. (R., Vol.

6, p. 37) Petitioner Julio Cesar Villalba again told Tory

to get out from in front of his house.                (R., Vol. 6, p.

40)     Katisha told Petitioner that they were not in front

of his house.       (R., Vol. 6, p. 40)         Katisha did not hear

what was said next between Tory and Petitioner Villalba

but she said Petitioner Villalba started shooting with a

chreome handgun three or four times in the direction of

Tory’s feet.        (R., Vol. 6, p. 37, 39-40, 42-43)           At that

point, Tory got into the driver’s seat and Petitioner

                                                                 PAGE 2
Villalba started waling away.              (R., Vol. 6, p. 43-44)

Katisha stated that Petitioner Julio Cesar Villalba came

back to the car and shot four times into the car.                    (R.,

Vol. 6, p.44, 47)         She said that when Tory was shot, hsi

foot hit the gas pedal but the car was not in gear.                  (R.,

Vol. 6, p. 45)            Katisha testified that Tory had done

nothing to make Petitioner Villalba shoot him and that

Tory    did     not   have   a   weapon.     (R.,   Vol.    6,     p.49)

Petitioner Villalba ran, got into his vehicle and left

the scene.       (R., Vol. 6, p. 50)       While Katisha was trying

to     unlock    Tory’s      telephone,    Petitioner      Julio    Cesar

Villalba’s mother and sister appeared.              (R., Vol. 6, p.

48)     Ruth Villalba, Petitioner Julio Cesar Villalba’s

sister call 911.          Katisha went her house and called 9211

and then returned to help Tory.              (R., Vol. 6, p. 52)

Tory denied during cross-examination that Tory put the

car into reverse and backed into Petitioner’s vehicle.

(R., Vol. 6, p. 62)           She admitted that she and Tory had

parked in the same place and had verbal confrontations

with Petitioner Julio Cesar Villalba each time.                      (R.,

Vol. 6, p. 64)

                                                                   PAGE 3
       Ruth    Villalba   testified      that    she    saw   her   brother

Julio Cesar Villalba standing outside the driver’s side

door of Tory Fuller’s car and they were arguing, not loud

but she hear them arguing.               (R., Vol. 6, 200)            While

Petitioner Villalba was returning to his car so he could

move    it    so   Tory   and    Katisha   could       leave,   she   heard

Katrina yell “Run him..“ and Tory backed one car length

into Petitioner’s car and there was a bump “like a big

hit.”        He hit Petitioner’s car hard enough to move the

car a little bit back.            (R., Vol. 6, p. 200-202)

       The    Dallas   Fire     and   Rescue    paramedic     Wes   Southar

testified that he went to the scene and saw a bullet hole

in the vindow of the Lexus vehicle and a man was slumped

over in the car; the girlfriend was in the passenger

seat.    (R., Vol. 6, p. 79)           The paramedic noted that the

man in the car had been shot in the neck and was “DOA”.

(R., Vol. 6, p. 78-81, 83)




                                                                      PAGE 4
                       STATEMENT OF JURISDICTION

       Jurisdiction is vested in this Honorable Court by the

Texas Constitution, Article 5, Section 5 which directs

that    the    Court    of     Criminal   Appeals    shall    have    final

jurisdiction coextensive with the limits of the state, in

all    criminal       cases    of    whatsoever     grade,    except    for

juvenile cases.          Discretionary Review by the Court of

Criminal Appeals is not a matter of right, but of sound

judicial discretion.



                             PROCEDURAL HISTORY

       The    Fifth    Court    of   Appeals    affirmed     Petitioner's

conviction      and    sentence      in   an   unpublished    opinion    on

March 31, 2015. No Motion for Rehearing was filed.                      The

Petition for Discretionary Review was due to be filed on

or before April 30,             2015.     Petitioner’s new attorney

obtained an extension of time to file the Petition for

Discretionary Review on or before June 1, 2015.




                                                                     PAGE 5
                   POINTS FOR REVIEW

POINT OF ERROR NUMBER ONE. THE TRIAL COURT’S REFUSAL TO
SUBMIT ON THE LAW OF SELF-DEFENSE WAS HARMFUL ERROR.

POINT OF ERROR NUMBER TWO. THE TRIAL COURT’S REFUSAL TO
SUBMIT A JURY CHARGE ON THE LAW OF TRHE LESSER INCLUDED
OFFENSE OF MANSLAUGHTER WAS HARMFUL ERROR.




                                                 PAGE 6
REASON FOR REVIEW NUMBER ONE.               THE COURT OF APPEALS HAS

DECIDED AN IMPORTANT QUESTION OF STATE AND FEDERAL LAW

WHICH IS CONTRARY TO           CASES FROM THIS HONORABLE COURT

DEALING WITH THE STANDARD FOR REVIEW OF A DENIAL OF A

REQUESTED SELF DEFENSE CHARGE.

THE OPINION

     The    Court     of    Appeals     correctly      stated     that     “A

defendant      is    entitled     to    an     instruction      on    every

defensive issue raised by the evidence, regardless of

whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks the

testimony is not worthy of belief.                 (Opinion, p. 5)       The

Court of Appeals held that “the record does not contain

evidece that Villalba reasonably believed deadly force

was immediately necessary to protect himself.”                  The Court

of   Appeals    then       referred    to    the    Texas    Penal       Code

definition     of    reasonable       belief   contained     in      Section

1.07(a)(42).        The Court of Appeals then stated “Villalba

did not testify during the guilt/innocence phase so the

jury did not hear any testimony from him about whether ‘

Fuller’s     driving       behavior     caused      him   any     fear     or

                                                                      PAGE 7
apprehension.     Likewise, Ruth did not provide any such

evidence.      However,   even      if    Villalba   thought    Fuller

intended to cause him harm, Villalba could have simply

walked away.”

    The Court of Appeals found that “Viewing the evidence

in the light most favorable to Villalba, he failed to

meet his burden of showing that some evidence existed to

support each element of his self-defense claim.                Shaw v.

State,   243   S.W.3d   647    at   657    (Tex.Crim.App.,      2007);

Ferrel v. State, 55 S.W.3d 586 at 591 (Tex.Crim.App.,

20010. Accordingly the trial court did not err in denying

his requested instruction.”

LAW AND ARGUMENTS

    Petitioner established the minimum requirements of

self-defense through the evidence presented by the State

and the defense as to the actions of Troy Fuller which

resulted in his death.        The Court of Appeals acknowledged

that the Petitioner Julio Cesar Villalba presented more

than a scintilla of evidence to raise the issue of self-

defense.    The evidence reasonably shows that Troy Fuller,

after Petitioner Julio Cesar Villalba walked away from

                                                                PAGE 8
the argument, put his car in reverse, drove at least a

car    length    backwards     striking       Petitioner      Julio       Cesar

Villalba’s vehicle, beside which Julio Cesar Villalba was

standing, with the female passenger yelling “Run him”.

The jury could reasonably believed from this evidence

that Troy Fuller intended to kill or seriously injure

Petitioner Julio Cesar Villalba with Fuller’s automobile.

Under this testimony, Petitioner Julio Cesar Villalba had

no    opportunity     safely     to    retreat.       Mr.     Villalba      was

attempting      to    walk     away     but    Troy    Fuller       and     his

girlfriend Katisha Perry attempted to run him down.                        This

probability is further justified when considering the

testimony that Fuller and Perry had “parked”                        in that

same location twice before and in each case an argument

ensued.    This time, Fuller and Perry intended to end the

problem    permanently.          A    rational    jury      could   have     so

found.    Had the defensive instruction of self-defense,

raised    by    the   evidence       been   provided     to   the   jury     to

consider, Petitioner Julio Cesar Villalba could have been

acquitted.      The Court of Appeals statement that “there is

no evidence Fuller drove his car in a manner intended or

                                                                      PAGE 9
capable       of    causing        death    or    serious         bodily       injury”

(Opinion, p. 5-6) is not supported by the evidence.                                      A

motor vehicle striking a human being, rather than another

car, even at a relatively slow speed can break bones and

kill     an   individual           run    over    by    the    car.        A    vehicle

striking another vehicle of several thousand pounds will

stop whereas striking an individual as intended as the

evidence supports, would                    simply run over individual,

probably killing him should the wheel run over a vital

part of the body.

       There       is   no    question      but     that      manslaughter         is    a

lesser included offense of murder.                           The only difference

in   the      elements        is    the    mental      state.         Under      proper

instructions            for    self-defense,           the    proper       review       is

whether viewing the evidence from the standpoint of the

defendant alone, there is evidence to justify the use of

deadly force.           SEE:       Morales v. State, 357 S.W.3d 1 (Tex.

Crim.App. 2011)               The Court of Appeals, however, applied

a standard of review based upon a Penal Code definition

of   a   “reasonable           belief”      requiring         a    reasonable       man

standard           of    review.           TEXAS       PENAL       CODE,        Article

                                                                                PAGE 10
1.07(a)(43).         This    Honorable       Court    has     consistently

required that the belief that self defense is required

must   be   viewed    from    the       standpoint    of    the   defendant

alone.       SEE:         Hayes     v.     State,     728     S.W.2d     1987

(Tex.Crim.App., 1987)         In this case, defense counsel made

a timely oral objection to the failure to give a charge

of self defense.          The error was preserved and harm is

clear since the only defense offered at trial was self-

defense. The Court of Appeals rejected the point of error

by using the definition in the Penal Code for “Reasonable

belief”     rather    than    the       standard     required     for    self

defense,     which    is     viewing        the     evidence      from    the

standpoint of the defendant alone.                 This Honorable Court

in Morales v. State, 357 S.W.3d 1, 3 (Tex.Crim.App.,

2011) emphasized that the reasonable belief required in

a defense of a third party, the same standard as required

by the self-defense standard, requires that the defendant

“may act against another in defense of a third person,

provided    he   acted      upon    a    reasonable     apprehension       of

danger to such third person, as it appeared to him from

his    standpoint    at     the    time”.     The     Court     of   Appeals

                                                                     PAGE 11
reliance       on   a   reasonable         man    standard     deprived     the

Petitioner of a proper charge on self-defense.                         Looking

at the situation from Petitioner Villalba’s standpoint;

going    to    move     his    own    car      after   the   argument,      the

deceased,      without        further       provocation      travels    a   car

length in distance and slams into Petitioner’s vehicle,

with the female in the offending car yelling “Run him..”

would    cause      apprehension          of   death   or    serious    bodily

injury from the driver of the car, who still had the

ability to run over Petitioner Villalba.                     No man is fast

enough    to     out    run    a     car.        The   situation   demanded

immediate action.             This evidence justifies the jury’s

consideration of self-defense.                   The defense in this case

was entirely based upon Petitioner Villalba’s right to

defend himself against someone trying to run over him.

There    is    nothing    in       this    evidence    which    negates     the

necessity of self-defense.                The error was clear, objected

to, and harmful.

    This Honorable Court should grant review in this case

both to address the fact that Petitioner established his

entitlement to a self-defense charge and also to address

                                                                       PAGE 12
the   propriety     of   using    a   reasonable         man    standard     to

decide if the evidence shows that a particular defendant

was reasonable in using deadly force when viewing the

evidence from his standpoint alone.



REASON FOR REVIEW NUMBER TWO.             THE COURT OF APPEALS HAS

DECIDED    AN    IMPORTANT   QUESTION         OF   STATE       LAW   WHICH   IS

CONTRARY TO CASES FROM THIS HONORABLE COURT DEALING WITH

THE GIVING OF A CHARGE ON THE LESSER INCLUDED OFFENSE OF

MANSLAUGHTER.

THE OPINION

      The Fifth Court of Appeals held that because the

evidence        presented    at       trial        did    not        establish

manslaughter as a valid, rational, alternative to murder,

the trial court did not err b y denying defense counsel’s

requested instruction.           (Opinion, p. 9)

LAW AND ARGUMENTS

      The trial court refused to give the Petitioner Julio

Cesar Villalba a charge on the lesser included offense of

manslaughter      when the facts and circumstances clearly

raised the issue and trial counsel timely objected to the

                                                                       PAGE 13
failure to charge on manslaughter.            The presence of any

harm,    regardless    of    degree,   is   sufficient    to   require

reversal in this circumstance.              Abdnor v. State, 871

S.W.2d 726 (Tex.Crim.App., 1994)             The Texas Penal Code

defines manslaughter as recklessly causing the death of

an individual.        TEXAS PENAL CODE, §19.04(a)              In this

case, the charged offense of murder requires a showing

that the individual intentionally or knowingly caused the

death of another individual.           TEXAS PENAL CODE, §19.02.

The only difference between the two is the requisite

mental state.    Manslaughter is a lesser included offense

of murder.    In this case, Petitioner Julio Cesar Villalba

was entitled to a charge on manslaughter before the jury

based upon the evidence before the jury.               The evidence

showed    Petitioner    Julio     Cesar     Villalba     intended   no

physical harm to either Fuller or Perry when he first

approached their motor vehicle.              Even when a gun was

fired, it was fired into the air and into the ground.

There was a clear intent to have them leave but there was

no intent to harm.          In fact, the evidence clearly shows

that the Petitioner was going to his motor vehicle when

                                                               PAGE 14
the Fuller put the vehicle in reverse and Perry yelled

“Run him” which signaled to any person that both Fuller

and Perry intended to run down Petitioner Julio Cesar

Villalba with his motor vehicle and was only stopped from

doing so by the fact that in his drunken state, he struck

Petitioner’s       motor     vehicle     instead.        Firing   into    the

window of the motor vehicle, even if it was only to scare

or deter the driver, was reckless as defined by Texas

Penal Code, §19.04(a).           The evidence showed that at the

time Petitioner Julio Cesar Villalba fired what amounted

to the fatal shot, he was randomly firing into the car.

The Court of Appeals opinion points                  out the evidence

relied    upon   to    show    reckless    conduct.        The    Court    of

Appeals    notes      that    Villalba    relied    on    testimony      from

Perry that showed it was “one of them                      ‘I   don’t care

moments” and that he was shooting in the car like “he

didn’t    give   a    damn    who   he   hit.”      (Opinion,      p.     8)

Petitioner knew that Katisha Perry and Troy were in the

car.     The evidence was more than a scintilla of evidence

to support the fact that Villalba did not intend to kill

anyone but was reckless in firing into the window knowing

                                                                   PAGE 15
that people were present.               There was no shooting to kill

but it is a rational view of the evidence that Petitioner

Julio    Cesar    Villalba        was    instinctively         responding       to

Fuller’s    attempt        to    run     over    him.         The    fact     that

Petitioner Julio Cesar Villalba did not shoot Troy Fuller

when he was right in front of him supports a lack of

intent to injure or kill anyone.                   Instead of trying to

show    anyone     earlier,       Petitioner       Julio      Cesar    Villalba

fired into the ground and into the air.                         The evidence

clearly raises a fact issue which could have resulted in

a     conviction     for        the     lesser    included          offense     of

manslaughter if the jury had been allowed to consider the

totality of the evidence presented. Evidence from any

source can raise the requirement for an instruction on a

lesser included offense.               Bell v. State, 693 S.W.2d434 at

473 (Tex.Crim.App., 1985)

       The implication of the Court of Appeals that without

the    Petitioner     Julio       Cesar    Villalba’s         testimony,       the

lesser included offense of manslaughter could never be

raised is simply wrong.               Any person confronted by another

individual       attempting       to    run     over   them    with    a    motor

                                                                        PAGE 16
vehicle   could    be   expected       to    respond    by     creating    a

warning that would deter further violent attempts to run

over them.    The jury had plenty of evidence to consider

the lesser included offense of manslaughter.                    The trial

court’s   refusal     to    allow     that   consideration       deprived

Petitioner Julio Cesar Villalba of a conviction for the

lesser included offense of manslaughter.

    This Honorable Court should grant review in order to

address whether the lesser offense can be raised from the

evidence without testimony from the defendant and whether

Petitioner    Julio        Cesar    Villalba     established          enough

evidence to entitle him to that charge.

                    CONCLUSION AND PRAYER

     Petitioner Julio Cesar Villalba has presented two

good reasons why this Honorable Court should grant review

of the decision of the Fifth Court of Appeals decision

affirming    his   case.       This    Honorable       Court    can    grant

review for either or both reasons.                 Petitioner Julio

Cesar Villalba contends that the error in each instance

was established and the harm is obvious.

    Petitioner Julio Cesar Villalba was entitled to both

                                                                  PAGE 17
a   charge   on   self-defense    as    judged   under    the     proper

standard for review, the standpoint of the defendant at

the time, and was entitled to the lesser included offense

of manslaughter under the evidence presented during the

trial, including the prior relationship of the parties.

     WHEREFORE,      PREMISES    CONSIDERED,     Petitioner        Julio

Cesar Villalba requests this Honorable Court grant review

on each of the issues raised herein, to order further

briefing of the issues, and to grant Petitioner Julio

Cesar   Villalba      a   new   trial    with    the     proper     jury

instructions for self-defense and of a lessor included

offense of manslaughter as is required by the law and the

evidence herein.

                  Respectfully submitted;

                  /s/ Danny D. Burns

                  DANNY D. BURNS
                  Attorney for Petitioner Julio Cesar Villalba
                  115 N. Henderson Street
                  Fort Worth, Texas 76102-1940
                  817-870-1544 Facsimile 817-870-1589
                  dburnslaw@sbcglobal.net




                                                                PAGE 18
                      CERTIFICATE OF SERVICE

    I hereby certify that a true and correct copy of the

foregoing petition for discretionary review was served on

the Honorable Mike Casillas by e-mail and on the                  State

Prosecuting    Attorney,      P.O.   Box    12405,      Austin,   Texas

78711, by e-mail transmission on June 1, 2015.

                      _/s/ Danny D. Burns
                      DANNY D. BURNS




                    CERTIFICATE OF COMPLIANCE

    I certify that the Petition for Discretionary Review

submitted herein complies with 9.4(i) of the Texas Rules

of Appellate Procedure and state that the Petition for

Discretionary       Review   was   typed   with     WordPerfect6      in

Courier New, 14 point font. The Word Count, excluding the

caption, identify of the parties, and counsel, statement

regarding    oral    argument,     table   of    contents,    index   of

authorities, statement of the case, statement of issues

presented,    statement      of    jurisdiction,        statement     of

procedural    history,       signature,         proof    of   service,

                                                               PAGE 19
certification, certificate of compliance, and appendix

consisting    of   the   opinion   from     the   Fifth   Court   of

Appeals,     contains    2,124     words,     contained     in    22

paragraphs, in ninety-four (94) sentences on thirteen

(13) pages.

                          Respectfully submitted;

                         _/s/ Danny D. Burns______________
                         DANNY D. BURNS
                         115 North Henderson Street
                         Fort Worth, Texas 76102-1940
                         (817) 870-1544
                         (817) 870-1589 fax
                         dburnslaw@sbcglobal.net




                                                           PAGE 20
Affirmed and Opinion Filed March 31, 2015




                                              S
                                  Court of Appeals
                                                   In The


                           Fifth District of Texas at Dallas
                                          No. 05-13-01661-CR

                               JULIO CESAR VILLALBA, Appellant
                                             V.
                                 THE STATE OF TEXAS, Appellee

                         On Appeal from the 204th Judicial District Court
                                      Dallas County, Texas
                              Trial Court Cause No. F-1258991-Q

                                MEMORANDUM OPINION
                             Before Justices Bridges, Fillmore, and Brown
                                      Opinion by Justice Bridges
        A jury convicted appellant Julio Cesar Villalba of murder and sentenced him to seventy-

years’ imprisonment. On appeal, he argues the trial court erred by refusing to submit charge

instructions on self-defense and the lesser-included offense of manslaughter.           He further

contends the trial court erred during the punishment phase by refusing to submit a sudden

passion instruction and by admitting a handgun. We affirm the trial court’s judgment.

                                               Background

        In the early morning hours of August 11, 2012, Tory Fuller and Katisha Perry were

parked in front of a vacant lot on Perry’s street. She lived two houses down from the vacant lot

and Villalba lived next to the vacant lot on the other side. At the time, Villalba’s car was parked

in front of his home. If Perry and Fuller needed to leave, they would “have had to back up a

little bit, but not a lot and just pull straight out.”
       Perry testified they were in the back seat of the car “doing girlfriend and boyfriend stuff”

when Villalba knocked on the window with a gun. At first they did not notice the gun because it

was in “like a Ziploc bag, but it had paper on it.” But then he took it out and knocked on the

window again. Villalba told them to “Get the eff out in front of my house,” even though they

were not parked in front of his house. Perry then climbed to the front passenger seat, and Fuller

opened the back door and walked to the driver’s side door. Perry said the men started talking,

but she could not hear the conversation. Villalba then started counting and shooting towards

Fuller’s feet. Fuller jumped in the car, and Perry said she told Fuller, “come on, let’s go to the

store.” Perry thought Villalba fired three or four shots at the ground.

       According to Perry, Villalba then walked four or five steps away from the car, and she

thought the situation had ended. However, Villalba turned around and started shooting at an

angle into the car’s front driver’s side windshield. Perry described it as “one of them ‘I don’t

care’ moments” because Villalba was just shooting in the car like “he didn’t give a damn who he

hit.” It was like “both of y’all can go.”

       Although Fuller had time to turn the car on, Perry testified Villalba started shooting

before Fuller shifted the car into gear to leave. Villalba then fled the scene in his car.

       When paramedics arrived, they found the car in park, the engine revving, and Fuller

sitting in the driver’s seat slumped over. Perry was covered with blood splatter.

       One of the bullets struck Fuller in the neck and severed both his right and left carotid

artery and his jugular vein. He died on the scene, and the medical examiner concluded the cause

of death was a gunshot wound to the neck. Perry was not injured from the gunfire.

       Francisco Gonzales, a crime scene analyst with the Dallas Police Department, testified

scrape marks, consistent with someone shooting into the ground, were present on the cement. He

observed three possible defects in the road near the scene.

                                                 –2–
            Sergeant Leopold Gonzalez served as a detective on the case. He testified neither the

murder weapon1 nor Villalba’s car were ever located. He further testified Villalba turned himself

in three days after the crime.

            Villalba’s sister, Ruth, testified for the defense. She woke up around 3:20 a.m. on August

11, 2012 to yelling and arguing outside her home. She looked out her upstairs bedroom window

and saw Fuller and Perry inside the front seat of the car and Villalba outside the driver’s side

door. She testified Villalba started walking back to move his car so Fuller and Perry could leave.

As Fuller backed his car up, she heard Perry yell, “Run him.” She was certain Fuller backed his

car up because she saw reverse lights. She claimed Fuller hit Villalba’s car, and “it moved a

little bit back.” When Fuller hit Villalba’s car, Villalba was on the driver’s side of his car. She

testified Villalba did not pull a gun until after Fuller hit his car.

            Ruth then saw Villalba walk towards the driver’s side of Fuller’s car, point the gun up,

and fire two shots. Villalba then put the gun down by his side.

            On cross examination, Ruth remembered telling a detective she woke up that morning

and heard a woman say, “Okay, we’re going to leave now.” She also admitted she told Detective

Gonzalez that Villalba first fired two shots up into the air. However, she did not see Villalba

shoot into the windshield because she went to get her mother. She did, however, hear shots

while she was getting her mother. When she came back, she then saw Villalba get into his car

and leave.

            After both sides rested, defense counsel requested an instruction on self-defense because

“through Ruth’s testimony, I think there - - hitting the car - - my client’s car with the client being

nearby, so he can have an apprehension of fear of being threatened by a deadly weapon, a

vehicle.” The trial court denied the request.

    1
        During the punishment hearing, Villalba testified he took the gun apart and threw it in a pond.



                                                                       –3–
       Defense counsel also requested an instruction on the lesser-included offense of

manslaughter. He argued manslaughter was raised through Perry’s testimony “about his angular

shooting,” and because the car’s windows were tinted, “it might be possible that, looking at it

from the actor’s standpoint, he could not see clearly inside the vehicle to see what bodies were

where at the time of the firing.” The trial court denied the request.

       The jury found Villalba guilty of murder. The punishment phase then continued before

the jury.   The State introduced Villalba’s prior convictions, which included two separate

incidents of fleeing and evading arrest, two separate incidents of marijuana possession, and

failure to ID. Villalba also testified and based on his testimony, defense counsel requested an

instruction on sudden passion. The trial court denied the request. The jury sentenced Villalba to

seventy years’ confinement, and this appeal followed.

                                            Self-Defense

       In his first issue, Villalba argues the trial court’s refusal to instruct the jury on self-

defense resulted in harmful error. The State responds nothing in the record raised the issue of

self-defense; therefore, the trial court did not err in denying the requested instruction.

       When reviewing jury charge error, we must first determine whether error actually exists

in the charge, and if we find error, we determine whether it harmed the defendant. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). We review the trial court’s decision not

to include a defensive issue in the jury charge for an abuse of discretion. Love v. State, 199

S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

       The trial court must provide the jury with “a written charge distinctly setting forth the law

applicable to the case; not expressing any opinion as to the weight of the evidence, not summing

up the testimony, discussing the facts or using any argument in his charge calculated to arouse

the sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West


                                                 –4–
2007). This law requires the trial judge to instruct the jury on statutory defenses, affirmative

defenses, and justifications whenever they are raised by the evidence. Walters v. State, 247

S.W.3d 204, 208–09 (Tex. Crim. App. 2007). A defendant is entitled to an instruction on every

defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble,

unimpeached, or contradicted, and even when the trial court thinks the testimony is not worthy of

belief. Id. at 209. On the other hand, if the evidence, viewed in the light most favorable to the

defendant, does not establish self-defense, the defendant is not entitled to an instruction on the

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

       The defendant bears the burden of showing that some evidence exists to support each

element of the defense. Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App. 2007). In this

case, Villalba used deadly force when he shot Fuller with a gun because a gun is capable of

causing death or serious bodily injury. Trammell v. State, 287 S.W.3d 336, 341 (Tex. App.—

Fort Worth 2009, no pet.). Therefore, to be entitled to a self-defense instruction, Villalba was

required to present some evidence demonstrating his reasonable belief that shooting the gun was

immediately necessary to protect himself from Fuller’s use or attempted use of deadly force.

See TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a)(1) (West 2011).

       Villalba relies on Ruth’s testimony in which she stated Fuller backed into Villalba’s car

while he was standing nearby and “running a motor vehicle, a ‘dangerous weapon,’ at someone

is an aggravated assault,” from which he should be permitted to defend himself. However,

Ruth’s testimony does not establish that Villalba was justified in using deadly force to protect

himself. While a car can be a deadly weapon if it is driven so as to endanger lives, it is not a

deadly weapon per se. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003); Parrish v.

State, 647 S.W.2d 8, 10 (Tex. App.—Houston [14th Dist.] 1982, no pet.). In the present case,

there is no evidence Fuller drove his car in a manner intended or capable of causing death or

                                               –5–
serious bodily injury. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2014) (defining

“deadly weapon” as “anything that is in the manner of its use or intended use capable of causing

death or serious bodily injury”). Ruth testified she heard the two men arguing. Then, as Fuller

backed his car up, she heard Perry yell, “Run him.” She claimed Fuller hit Villalba’s car, and “it

moved a little bit back.” When Fuller hit Villalba’s car, Villalba was on the driver’s side of his

car. When viewed in the light most favorable to Villalba, which includes consideration of

Perry’s “Run him” statement, Ruth’s testimony does not establish Fuller made any threatening

remark to Villalba or drove his car in a manner capable of causing death or serious bodily injury.

Ruth did not testify Fuller accelerated backwards in an attempt to hit Villalba. Rather, she

testified the impact moved Villalba’s car “a little bit back.”

       Further, the record does not contain evidence that Villalba reasonably believed deadly

force was immediately necessary to protect himself. A “reasonable belief” is defined as “a belief

that would be held by an ordinary and prudent man in the same circumstances as the actor.” Id.

§ 1.07(a)(42).

       During the charge conference, defense counsel argued that because Villalba was standing

near his car when Fuller allegedly backed up, “he [could] have an apprehension of fear of being

threatened by a deadly a weapon, a vehicle.” Villalba did not testify during the guilt/innocence

phase so the jury did not hear any testimony from him about whether Fuller’s driving behavior

caused him to feel any fear or apprehension. Likewise, Ruth did not provide any such evidence.

However, even if Villalba thought Fuller intended to cause him harm, Villalba could have simply

walked away. The record is clear Fuller did not have a gun or any other deadly weapon in his

possession when Villalba killed him. As such, grabbing a gun from his car and shooting into

Fuller’s windshield was not an immediately necessary response to protect himself from Fuller

backing up his car near Villalba. See, e.g., Trammell, 287 S.W.3d at 341 (holding defendant was

                                                 –6–
not entitled to self-defense instruction despite decedent pointing a knife at defendant earlier in

the evening and even if defendant thought decedent intended to cause him harm, defendant could

have simply driven away from the scene; “shooting the gun was not an immediately necessary

response”).

         Viewing the evidence in the light most favorable to Villalba, he failed to meet his burden

of showing that some evidence existed to support each element of his self-defense claim. Shaw,

243 S.W.3d at 657; Ferrel, 55 S.W.3d at 591. Accordingly, the trial court did not err in denying

his requested instruction. We overrule Villalba’s first issue.

                               Lesser-included Offense Instruction

         In his second issue, Villalba argues the trial court erred by denying his request for an

instruction on the lesser-included offense of manslaughter. The State responds Villalba was not

entitled to such an instruction because there was no evidence he was guilty only of the lesser

offense.

         As previously stated, when reviewing jury charge error, we must first determine whether

error actually exists in the charge, and if we find error, we determine whether it harmed the

defendant. Ngo, 175 S.W.3d at 743. The determination of whether a defendant is entitled to a

lesser-included offense instruction requires a two-step analysis: (1) whether the requested charge

is for a lesser-included offense of the charged offense; and (2) whether there is evidence that

supports giving the instruction to the jury. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App.

2011).

         The first step asks whether the lesser-included offense is included within the proof

necessary to establish the offense charged. Id. This is a question of law and is not dependent on

the evidence produced at trial. Id. The second step of the lesser-included offense analysis is to

determine if there is some evidence in the record that would permit a jury to rationally find that,


                                                –7–
if the defendant is guilty, he is guilty only of the lesser-included offense. Id. The evidence must

establish the lesser-included offense as “a valid, rational alternative to the charged offense.”

Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). The second step is a question of fact

and is based on the evidence presented at trial. Cavazos v. State, 382 S.W.3d 377, 383 (Tex.

Crim. App. 2012).

       Both parties agree manslaughter is a lesser-included offense of murder; therefore, we

focus our analysis on whether the evidence presented at trial would permit a jury to rationally

find that, if Villalba is guilty, he is guilty only of manslaughter. The penal code defines

manslaughter as recklessly causing the death of an individual. TEX. PENAL CODE ANN. §

19.04(a) (West 2011). A person acts reckless with respect to circumstances surrounding his

conduct when he is aware of, but consciously disregards, a substantial and unjustifiable risk that

the circumstances exist or the result will occur. Id. § 6.03(c). The risk must be of such a nature

and degree that its disregard constitutes a gross deviation from the standard of care an ordinary

person would exercise under all circumstances as viewed from the actor’s standpoint. Id.

Further, there must be some affirmative evidence from which a rational juror could infer that

Villalba was aware of but consciously disregarded a substantial risk that death would occur as a

result of his conduct. Cavazos, 382 S.W.3d at 385. While it is true the evidence may be weak or

contradicted, the evidence must still be directly germane to the lesser-included offense. Id.

Meeting this threshold requires more than mere speculation—it requires affirmative evidence

that both raises the lesser-included offense and rebuts or negates an element of the greater

offense. Id.

       Villalba again relies on testimony from Ruth and Perry to support his position. He quotes

Perry’s testimony in which she described the shooting as “one of them ‘I don’t care’ moments”

because Villalba was just shooting in the car like “he didn’t give a damn who he hit.” Villalba

                                               –8–
also cites to Ruth’s testimony in which she described Villalba getting the gun from his car,

pointing the gun up, and firing two shots.

       The evidence Villalba relies on does not affirmatively raise the lesser-included offense of

manslaughter while negating an element of murder. Specifically, the evidence does not support

that Villalba acted only recklessly when he killed Fuller.        Perry explained how Villalba

approached the car, banged on the window with a gun, and shot several times towards the ground

when Fuller tried to get out of the car. Villalba then walked away before turning back around

and shooting into the windshield. While Perry testified Villalba did not seem to care who he

shot, she specifically stated Villalba knew both she and Fuller were inside the car, and he

“pointed that gun at that window.” Thus, this evidence indicates Villalba intended to shoot

someone when he fired his gun into the windshield. His intentional conduct did not turn into a

reckless act because he did not care which person he hit. The evidence does not support a finding

of recklessness and does not rise to the level that would convince a rational jury to find that if

Villalba was guilty, he was guilty only of the lesser-included offense of manslaughter. See, e.g.,

Cavazos, 382 S.W.3d at 385 (holding defendant was not entitled to lesser-included offense

instruction because “pulling a gun, pointing it at someone, pulling the trigger twice, fleeing the

scene, and later telling a friend ‘I didn’t mean to shoot anyone’ does not rationally support an

inference defendant acted recklessly at the moment he fired the shots”).

       Because the evidence presented at trial did not establish manslaughter as a valid, rational

alternative to murder, the trial court did not err by denying defense counsel’s requested

instruction. We overrule Villalba’s second issue.




                                               –9–
                                        Sudden Passion

       In his third issue, Villalba argues the trial court erred during the punishment phase by

denying his request for a sudden passion instruction. The State responds the record does not

support sudden passion or adequate cause.

       During the punishment phase, a defendant may raise the issue of whether he caused the

death under the immediate influence of sudden passion arising from an adequate cause. TEX.

PENAL CODE ANN. § 19.02(d) (West 2011).           “Adequate cause” means “cause that would

commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper,

sufficient to render the mind incapable of cool reflection. Id. § 19.02(a)(1). “Sudden passion”

means “passion directly caused by and arising out of provocation by the individual killed or

another acting with the person killed which passion arises at the time of the offense and is not

solely the result of prior provocation.” Id. § 19.02(a)(2). The defendant has the burden of

production and persuasion with respect to the issue of sudden passion. Wooten v. State, 400

S.W.3d 601, 605 (Tex. Crim. App. 2013).

       To justify a sudden passion instruction, the record must at least minimally support an

inference that: (1) the defendant in fact acted under the immediate influence of a passion such as

terror, anger, rage, or resentment; (2) his sudden passion was in fact induced by some

provocation by the deceased or another acting with him, which provocation would commonly

produce such a passion in a person of ordinary temper; (3) he committed the murder before

regaining his capacity for cool reflection; and (4) a causal connection existed between the

provocation, passion, and homicide. Id. It does not matter that the evidence supporting the

submission of a sudden passion instruction may be weak, impeached, contradicted, or

unbelievable. Id. If the evidence raises the issue from any source, during either phase of trial,




                                              –10–
then the defendant has satisfied his burden of production, and, if requested, the trial court must

submit the issue in the jury charge. Id.

        When reviewing jury charge error, we must first determine whether error actually exists

in the charge, and if we find error, we determine whether it harmed the defendant. Ngo, 175

S.W.3d at 743. If the reviewing court determines the trial court erred by failing to submit a

sudden passion instruction, only then does it analyze whether the error harmed the defendant.

Wooten, 400 S.W.3d at 606.

        Villalba testified that he had seen Fuller with a gun in the past. He also testified he felt

scared and threatened by Fuller because of two previous incidents, one of which involved Fuller

beating him up.

        When questioned about the night of the shooting, Villalba explained he parked right

behind Fuller’s car and then knocked on the window. When no one answered, he went back to

his car and retrieved the gun because “I just felt threatened that - - the first knocks didn’t do

nothing, and nobody’s saying or doing anything so - -.” When he knocked on the window with

the gun, his intent was to get them to leave. “[M]y intentions were not to pull out the gun and try

to do everything that occurred.” Villalba said the two men started arguing, and he got angry

when Fuller started saying things like, “I’m gonna get you back. . . he wanted to probably

retaliate later.”

        Villalba admitted he realized what he was doing was wrong so he walked back to his car

to move it. While he was standing beside his car with the door open, he testified Fuller

“bumped” into his car. Although he first described it as a “threatening bump,” he later admitted

it only moved his car a little. He said, “it kind of frightened me a little that he was gonna come

try to reverse faster.” When he fired the shots into the windshield, he said it was “accidental”




                                               –11–
and that the gun was “real sensitive.” Afterwards, he thought he had missed, and he was hoping

he had not shot Fuller. He ran away because he was scared and panicked.

       Defense counsel requested a sudden passion instruction because of the previous

interactions between Fuller and Villalba and because Fuller bumped Villalba’s vehicle in a

threatening manner. The trial court overruled the request because there was no evidence of

adequate cause or that the shooting was accidental. We agree with the trial court’s ruling.

       First, we cannot consider any previous interactions between Villalba and Fuller because

sudden passion must arise at the time of the offense and cannot result solely from former

provocation. Kelley v. State, No. 05-09-01438-CR, 2012 WL 2628074, at *7 (Tex. App.—

Dallas July 6, 2012, pet. ref’d) (mem. op., not designated for publication). Second, Villalba did

not provide any testimony that Fuller bumping into his car produced a “degree of anger, rage,

resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of

cool reflection.” TEX. PENAL CODE ANN. § 19.02(a)(1) (defining “adequate cause”). Rather,

Villalba testified the bump moved his car a little and it “kind of frightened me a little.” Thus, we

conclude the trial court did not err by finding there was no evidence of adequate cause.

       Further, Villalba described the shooting as accidental, and he hoped he did not hit Fuller.

Although an accident defense does not preclude a sudden-passion instruction, there must be

some evidence to indicate that the appellant acted under the influence of sudden passion, even if

that evidence is contrary to other evidence in the case. McKinney v. State, 179 S.W.3d 565, 571

(Tex. Crim. App. 2005). The record contains no such evidence.

       Accordingly, the trial court properly denied Villalba’s request for a sudden passion

instruction. We overrule his third issue.




                                               –12–
                              Admission of Evidence During Punishment

       In his final issue, Villalba asserts the trial court abused its discretion by admitting a

handgun during the punishment hearing. Specifically, he contends that because no one saw him

with the handgun during the commission of the extraneous offense, “there is no way that a jury

could rationally find that the Appellant was criminally responsible for possessing the handgun.”

The State responds the trial court acted within its discretion in admitting the handgun, and even

if the trial court erred, Villalba was not harmed.

       We review a trial court’s decision to admit punishment evidence under an abuse of

discretion. Davis v. State, 68 S.W.3d 273, 282 (Tex. App.—Dallas 2002, pet. ref’d). The Texas

Code of Criminal Procedure permits trial courts to admit evidence deemed relevant to

sentencing, including evidence of other crimes or bad acts. TEX. CODE CRIM. PROC. ANN. art.

37.07, § 3(a)(1) (West Supp. 2014). During punishment, relevant evidence is that which assists

the fact finder in determining the appropriate sentence given the particular defendant in the

circumstances presented. Davis, 68 S.W.3d at 282–83. When a proper objection is made, the

trial court has the responsibility to determine the threshold issue of whether an extraneous

offense is relevant. Arzaga v. State, 86 S.W.3d 767, 781 (Tex. App.—El Paso 2002, no pet.).

Then the jury, as the exclusive judge of the facts, is to determine whether or not the State has

proved the extraneous offense beyond a reasonable doubt. Id. The trial court satisfies its initial

responsibility by making a determination that a jury could reasonably find beyond a reasonable

doubt that the defendant committed the extraneous offense. Id. This threshold determination is

not a finding by the court that the State has proved an extraneous offense beyond a reasonable

doubt, but instead a finding that sufficient evidence exists from which a jury could reasonably so

find. Id.




                                                –13–
       Deputy Tim Allman testified that on the evening of November 30, 2011, he initiated a

traffic stop after he saw a car driving without its headlights. Villalba was the driver of the car.

When Deputy Allman got out of his car, he dropped his flashlight and when he leaned over to

pick it up, Villalba drove off. Deputy Allman pursued the car through a neighborhood. Villalba

eventually stopped his car in front of a house, got out, and ran away. As Deputy Allen chased

Villalba, he noticed Villalba reaching his hands in the front pockets of his hoodie, “like he was

messing with something as he was running.” Deputy Allman thought Villalba had a gun so he

stopped chasing him. Villalba ran behind a fence into a backyard, and Deputy Allman radioed

for back up. As he talked to the dispatcher, Villalba reappeared with his hands up.

       When Deputy Gray arrived as back up, Deputy Allen already had Villalba in custody.

Deputy Allen shared his suspicion that Villalba threw something in the backyard so Deputy Gray

searched the area. He found a fully loaded magazine in Villalba’s backyard and a gun in the

back of the next door residence. Although Deputy Gray admitted he found no direct evidence

linking the gun to Villalba, he saw fresh footprints in the dew on the grass in the area where the

magazine was found. He further testified the magazine matched the gun.

        Based on this testimony, evidence supported the conclusion that Villalba possessed and

then discarded the gun prior to Deputy Allen arresting him. Accordingly, the trial court did not

abuse its discretion by determining the jury could find beyond a reasonable doubt that Villalba

possessed the gun. Arzaga, 86 S.W.3d at 781. Villalba’s fourth issue is overruled.




                                              –14–
                                           Conclusion

       Having overruled Villalba’s issues, the judgment of the trial court is affirmed.




Do Not Publish                                     /David L. Bridges/
TEX. R. APP. P. 47                                 DAVID L. BRIDGES
131661F.U05                                        JUSTICE




                                              –15–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

JULIO CESAR VILLALBA, Appellant                   On Appeal from the 204th Judicial District
                                                  Court, Dallas County, Texas
No. 05-13-01661-CR       V.                       Trial Court Cause No. F-1258991-Q.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices Fillmore and Brown participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered March 31, 2015.




                                           –16–
