                                                                                     PD-1039-14
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
March 12, 2015                                                    Transmitted 3/11/2015 3:54:30 PM
                                                                    Accepted 3/12/2015 9:11:00 AM
                                                                                      ABEL ACOSTA
                                 PD-1039-14                                                   CLERK




                       Court of Criminal Appeals of Texas


                            Jose Guadalupe Rodriguez Elizondo,
                                        Appellant

                                            v.

                                      State of Texas,
                                         Appellee


        ON APPEAL FROM CAUSE NO. 13-12-00028-CR IN THE THIRTEENTH COURT OF
                                      APPEALS
                        TRIAL COURT CAUSE NO. CR-3485-10-I
             398TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS
               HON. AIDA SALINAS FLORES/HON. LINDA YAÑEZ PRESIDING


                 APPELLANT JOSE GUADALUPE RODRIGUEZ ELIZONDO’S
                   AMENDED PETITION FOR DISCRETIONARY REVIEW


       ORAL ARGUMENT REQUESTED                      Brandy Wingate Voss
                                                    State Bar No. 24037046
                                                    SMITH LAW GROUP, P.C.
                                                    820 E. Hackberry Ave.
                                                    McAllen, TX 78501
                                                    (956) 683-6330
                                                    (956) 225-0406 (fax)
                                                    Counsel for Appellant Jose
                                                    Guadalupe Rodriguez Elizondo
            IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judges                      Hon. Aida Salinas Flores
                                        Hon. Linda Yañez sitting by assignment

Appellant                               Appellate Counsel

Jose Guadalupe Rodriguez Elizondo       Brandy Wingate Voss
                                        Smith Law Group, P.C.
                                        820 E. Hackberry Ave.
                                        McAllen, Texas 78501

                                        Trial Counsel

                                        Santos Maldonado, Jr.
                                        209 E. University Dr.
                                        Edinburg, Texas 78539

Appellee                                Trial Counsel

State of Texas                          Rolando Cantu
                                        Criselda Rincon-Flores
                                        Hidalgo County District Attorney’s
                                        Office
                                        Asst. Criminal District Attorneys
                                        100 N. Closner
                                        Edinburg, Texas 78539

                                        Appellate Counsel

                                        Ted Hake
                                        Michael Morris
                                        Hidalgo County District Attorney’s
                                        Office
                                        Assistant District Attorneys—Appeals
                                        Division
                                        100 N Closner Rm 303
                                        Edinburg, TX 78539
                                    i
                                       TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................................ i

TABLE OF CONTENTS ............................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT................................................. vi

STATEMENT OF THE CASE ................................................................................... vi

STATEMENT OF PROCEDURAL HISTORY ....................................................... viii

GROUNDS FOR REVIEW ........................................................................................ ix

ARGUMENT................................................................................................................ 1

I.       Fleeing to a vehicle nearly 70 yards away from an initial
         altercation should be sufficient abandonment and not a mere
         change of position. ............................................................................................. 1

II.      The court of appeals should have analyzed all the elements
         of Smith v. State before determining that Elizondo
         provoked the second altercation. ....................................................................... 3

III.     The court of appeals affirmed on a jury charge that was
         grossly incorrect by ignoring and then misapplying this Court’s precedent. .... 8

          A.      The court of appeals erroneously refused to review two
                  omissions from the charge, in conflict with this Court’s
                  prior decisions .......................................................................................... 9

          B.      The court of appeals erroneously failed to properly apply
                  the appropriate harm analysis to the other charge errors ..................... 11

                                                             ii
          C.       The jury charge was a garbled mess, and a review of the
                   complete charge and application of the proper harm
                   analyses requires reversal. ...................................................................... 15


CONCLUSION AND PRAYER................................................................................ 19

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e) ....................................... 20

CERTIFICATE OF SERVICE ................................................................................... 21

APPENDIX ................................................................................................................. 22




                                                             iii
                                INDEX OF AUTHORITIES

Cases

Barrera v. State,
   982 S.W.2d 415 (Tex. Crim. App. 1998)....................................................... 10, 11

Brown v. State,
  651 S.W.2d 782 (Tex. Crim. App. 1983) ............................................................... 17

Carlile v. State,
  255 S.W. 990 (Tex. Crim. App. 1923). .................................................................... 2

Cornet v. State,
  417 S.W.3d 446 (Tex. Crim. App. 2013) ............................................................... 14

Elizondo v. State,
   No. 13-12-00028-CR, 2014 WL222834 (Tex. App.—Corpus Christi
   Jan. 16, 2014, pet. filed) (mem. op., not designated for publication) ............. passim

Ervin v. State,
  367 S.W.2d 680 (Tex. Crim. App. 1963) ................................................................. 2

Frank v. State,
  688 S.W.2d 863 (Tex. Crim. App. 1985) ............................................................... 10

Gray v. State,
  388 S.W.2d 710 (Tex. Crim. App. 1964). ................................................................ 2

Lerma v. State,
  807 S.W.2d 599 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) ..................... 10

Mendoza v. State,
 349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d).................................. 6, 17, 19




                                                     iv
Reeves v. State,
  No. 01-10-00395-CR, 2012 WL 5544770 (Tex. App.—Houston
  [1st Dist.] Nov. 15, 2012) (mem. op. on reh’g, not designated for publication)..6, 7

Reeves v. State,
   420 S.W.3d 812 (Tex. Crim. App. 2013) ..................................................... 6, 9, 15

Reynolds v. State,
  371 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ........................... 10

Saxton v. State,
  804 S.W.2d 910 (Tex. Crim. App. 1991) ............................................................... 13

Smith v. State,
  965 S.W.2d 509 (Tex. Crim. App. 1998) .................................................... 3, 4, 6, 7

Vega v. State,
  394 S.W.3d 514 (Tex. Crim. App. 2013) ............................................................... 11


Statutes

TEX. PENAL CODE ANN. § 9.04 ..................................................................................... 9

TEX. PENAL CODE ANN. § 9.31 ..................................................................................... 1

TEX. PENAL CODE ANN. § 9.32 ................................................................................... 12


Secondary Authority

Tex. Pattern Jury Charges, Criminal Defenses, § B14.2 ............................................... 16




                                                        v
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

      Appellant, Jose Guadalupe Rodriguez Elizondo, respectfully requests that this

Court grant his petition for discretionary review and respectfully shows:

              STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would be beneficial in this case because it presents unique

circumstances that should be addressed by this Court. Specifically, this case presents

complicated issues of self-defense, provocation, and abandonment of the difficulty,

and a grossly erroneous jury charge on those defensive issues, with which counsel for

appellant can assist the Court through oral argument.

                           STATEMENT OF THE CASE1

      This case involves complicated isues of self-defense arising from two separate

altercations. After his wife was mistreated by a bouncer at a nightclub, Elizondo—an

off-duty United States Customs officer—was involved in an initial altercation with

the bouncer and several others outside the club.2 Elizondo was outnumbered during

this initial altercation, and he feared for his life.3 The undisputed evidence shows




      1
          The clerk’s record consists of one volume and two supplemental volumes, which will be
      2
          16RR183-192.
      3
          12 RR 178, 180; 16RR191-195; 17 RR 19, 21.
                                               vi
that Elizondo sought to abandon the difficulty by running nearly seventy yards to his

truck and getting inside the vehicle.4

      Nevertheless, the bouncers chased Elizondo all the way to his truck, cursing

and yelling at him to stop running, and then “banging on the windows” of the truck

to force him out.5 Once at the truck, Elizondo was forcefully removed from it and

engaged in a second altercation with the men.6 As part of this second altercation, the

club’s owner, Fermin Limon, Sr., pointed a gun at Elizondo, refused to put the

weapon down after being told to do so by Elizondo, and Elizondo fired his own gun

in self-defense, causing Limon, Sr.’s death.7

      The court of appeals acknowledged this sequence of events but dismissed

Elizondo’s self-defense argument with two short, conclusory paragraphs, glossing

over Elizondo’s arguments distinguishing the two altercations and his assertion that

he abandoned the difficulty. Elizondo v. State, No. 13-12-00028-CR, 2014

WL222834, at *6 (Tex. App.—Corpus Christi Jan. 16, 2014, pet. filed) (mem. op.,

not designated for publication). The court held that an alleged statement by

Elizondo after he had already started to flee the difficulty and after the men initiated
      4
       12RR178, 180; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-137, 233;
16RR113, 197; 21RRDX21.
      5
          13RR149, 179; 14RR104, 105; 15RR41-42, 237; 16RR27-29.
      6
          16RR201-203.
      7
        12RR180-181; 13RR16, 68-69, 134-137, 171-173; 14RR108-109, 250; 15RR15-17, 44-47,
138, 140, 143, 152; 16RR38, 206-207, 214-215.

                                            vii
a chase to his vehicle provoked the second altercation, undermining Elizondo’s self-

defense justification. Id. The court, however, did not analyze the elements of

provocation with respect to these statements. Id.

       Moreover, the jury charge was incomplete and woefully erroneous. The court

of appeals rejected Elizondo’s complaints about the jury charge without analyzing all

of Elizondo’s arguments and without conducting a full harm analysis. Id. Elizondo is

currently serving a 25-year sentence for murder.8

                 STATEMENT OF PROCEDURAL HISTORY

Date and citation to Court of Appeals   The Thirteenth Court of Appeals issued
Opinion:                                its opinion and judgment on January
                                        16, 2014. Elizondo v. State, No. 13-12-
                                        00028-CR, 2014 WL222834 (Tex.
                                        App.—Corpus Christi Jan. 16, 2014, pet.
                                        filed) (mem. op., not designated for
                                        publication).

Motion for Rehearing and                Elizondo timely filed motions for
Reconsideration En Banc:                rehearing and for reconsideration en
                                        banc on March 3, 2014 (the Thirteenth
                                        Court granted an extension of time).

Court of Appeals’ Disposition:          The Thirteenth Court of Appeals
                                        overruled Elizondo’s motions for
                                        rehearing and for reconsideration en
                                        banc on June 30, 2014, and this Court
                                        extended the time to file a petition for
                                        discretionary review.




       8
           CR69-71.

                                           viii
                          GROUNDS FOR REVIEW

      1.     The evidence showed that Elizondo fled nearly 70 yards to his vehicle

and got inside—the only realistic place to run under the circumstances—only to be

chased by his attackers and forcibly removed from the vehicle. Under those

circumstances, did Elizondo sufficiently “abandon the difficulty” to support a self-

defense justification, or was his flight a mere change of position of the parties and a

continuation of the prior altercation?

      2.     The State alleged that after Elizondo fled the initial altercation and after

his attackers began their pursuit, Elizondo made statements that provoked a second

attack. Was the court of appeals required to conduct a full analysis of the elements

of provocation under Smith v. State, including (1) whether the defendant did some

act or used some words which provoked the attack on him; (2) whether the act or

words were reasonably calculated to provoke the attack; and (3) whether the act was

done or the words were used for the purpose and with the intent that the defendant

would have a pretext for inflicting some harm on another? Should the Court reverse

and render a judgment of acquittal when the words allegedly spoken after a pursuit

was already underway could not have possibly provoked a pursuit and a further

attack, and where there is no evidence that the defendant intended to provide a

pretext for inflicting harm?

                                           ix
      3.     The jury charge contained numerous errors and omissions, which the

court of appeals recognized. Yet the court of appeals erroneously (1) held that

omissions from the charge were waived by defense counsel, and (2) failed to apply

the appropriate harm standard to all the errors presented. Should the Court reverse

under these circumstances, where after applying the correct harm analysis, it appears

that the charge as a whole was incomplete, the instructions actually provided were

woefully inaccurate, and the charge failed to protect and preserve Elizondo’s only

defense?




                                         x
                                    ARGUMENT

I.    Fleeing to a vehicle nearly 70 yards away from an initial
      altercation should be sufficient abandonment and not a mere
      change of position.
      Provocation and abandonment are central, complex issues in this case,

involving a multi-part inquiry. The court of appeals below failed to conduct a

thorough analysis, instead essentially ignoring Elizondo’s “abandonment” argument.

As a result, a former United States Customs officer is serving a twenty-five year

murder sentence.

      “[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.” TEX. PENAL CODE ANN.

§ 9.31(a). A defendant, however, is not entitled to use force “if the actor provoked

the other’s use or attempted use of unlawful force, unless: (A) the actor abandons

the encounter, or clearly communicates to the other his intent to do so reasonably

believing he cannot safely abandon the encounter; and (B) the other nevertheless

continues or attempts to use unlawful force against the actor . . . .” Id. § 9.31 (b)(4).

      When there are multiple altercations, courts looking at provocation first

determine if the initial encounter was abandoned. See Carlile v. State, 255 S.W. 990,

991-92 (Tex. Crim. App. 1923). This Court has held that “the abandonment of the

                                            1
difficulty by the defendant does not arise where the difficulty was continuous, the

only change being in the position of the parties during the progress of the

encounter.” Ervin v. State, 367 S.W.2d 680, 683-84 (Tex. Crim. App. 1963). Rather,

it is “necessary that the intention to abandon the difficulty be, in some manner,

communicated by the appellant so as ‘to advise his adversary that his danger had

passed, and make his conduct thereafter the pursuit of vengeance rather than

measures to repel the original assault.’” Id. at 684.

      Logically, flight from an altercation will always be a “change of the position of

the parties,” and this Court has never explained just how much distance is enough

to constitute abandonment. The Court should take the opportunity to clarify that

fleeing to a vehicle—where that is the only reasonable location to retreat—is sufficient

abandonment. See, e.g., Gray v. State, 388 S.W.2d 710, 712 (Tex. Crim. App. 1964).

      Here, it is undisputed that the first altercation occurred at the nightclub’s

door. Regardless of whether Elizondo provoked the initial altercation, he

nevertheless ran almost 70 yards to his vehicle, got inside, and shut the door.9 This

was not a mere “change of position.” Running that far away from an altercation and

getting in a vehicle is abandonment, yet the lower court’s opinion does not address

whether Elizondo’s flight sufficiently communicated his intent. There was no

      9
        11RR95; 12RR178, 180-181; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-
137, 233; 16RR113, 197; 21RRDX21.

                                            2
testimony (1) demonstrating that Elizondo could have fled to any other location, or

(2) that Elizondo should have left his wife and truck at the establishment in order to

abandon the altercation.10 It is unclear what more he could have done. That should

not be the law in Texas, and this Court should grant the petition to clarify the law of

abandonment.

II.   The court of appeals should have analyzed all the elements of
      Smith v. State before determining that Elizondo provoked the
      second altercation.
      The court of appeals found that Elizondo provoked the second altercation, yet

it did so without conducting a full analysis as required in Smith v. State, 965 S.W.2d

509, 512 (Tex. Crim. App. 1998). To invoke the provocation exception to self-

defense, the State must show that

       (1)      that the defendant did some act or used some words which
                provoked the attack on him,

      (2)       that such act or words were reasonably calculated to provoke the
                attack, and

      (3)       that the act was done or the words were used for the purpose
                and with the intent that the defendant would have a pretext for
                inflicting harm upon the other.

Id. The State must show that Elizondo performed some act or used words that

actually provoked the attack, the words or acts were the type that would ordinarily


      10
           See generally RR.
                                            3
provoke an attack, and he intended to provoke an attack to have a pretext for killing

Limon, Sr. See id.

      Elizondo specifically argued that the first and second altercations should be

distinguished based on the timing of the events, the first altercation was abandoned

when he ran to nearly 70 yards and got inside his vehicle, and there was no evidence

he said or did anything as a pretext to kill Limon, Sr. Rejecting Elizondo’s

arguments in one short paragraph, the court below held:

              Elizondo argues, however, that even assuming he provoked the
      initial difficulty, he abandoned this first encounter near the bar by
      running to his pickup truck. This abandonment would thus make him
      eligible for the self-defense affirmative defense. However, we conclude
      that a reasonable jury could have found otherwise. Junior testified that
      when Elizondo left the first difficulty and ran to his pickup truck, he
      was yelling, “Van a ver,” roughly translated as “You will see.” Junior was
      frightened by that statement and believed it constituted a threat to him
      and his co-workers. Further, the jury had Elizondo’s police statement
      wherein he admitted that he “ran towards [his] truck where [he] had
      [his] duty issued H & K 40 Caliber handgun.” This evidence supports
      the jury’s implied finding that Elizondo was running to his truck for his
      firearm, not to abandon or discontinue the fight.

Elizondo, 2014 WL 222834, at *6 (citations omitted).

      Affirming on these grounds, however, the court failed to address all of

Elizondo’s arguments, including:

      a.     The court of appeals relied on Elizondo’s alleged statement “van a

ver”—translated as “you will see”—while running away from the initial altercation. Id.


                                          4
Elizondo argued that these words did not actually provoke the pursuit, which was

already under way, or the continued attack at his truck. Elizondo expressly testified

that he ran to his truck to get away from his attackers and got inside the vehicle.11

The only testimony regarding the initial reason for the chase came from a bouncer

named “Junior,” who claimed that he followed Elizondo to his truck to make sure

he left safely, which is completely consistent with Elizondo’s abandonment of the

difficulty.12 The court of appeals disregarded this uncontradicted testimony.

      Yet, upon arriving at the truck and discovering Elizondo inside, Junior did

not then just make sure that Elizondo left—he admitted to hitting Elizondo’s vehicle,

and other witnesses testified that Junior was also yelling, “Get off, asshole.”13 In fact,

Rodrigo testified that Junior was trying to get Elizondo to come out of his truck.14

      Junior testified that while Elizondo was running away he said the words, “Van

a ver,” or “you’re going to see,” claiming that he took those words as a threat, but

Junior expressly testified that he had already started the pursuit by that time.15 Thus,

those words did not actually provoke the pursuit of Elizondo by Rodrigo, Bryan, and



      11
           16RR113-114, 191-195; 21RRDX21.
      12
           16RR9-10, 25.
      13
           13RR149, 179; 14RR104-105; 15RR41-42; 16RR27-29.
      14
           15RR80.
      15
           15RR234-235.

                                             5
Junior, which was already underway.16 Smith, 965 S.W.2d at 512 (“A defendant may

have a desire that the victim will attack him, or he may seek the victim with the

intent to provoke a difficulty, but the defendant must go further and do or say

something which actually provokes the attack before he will lose his right to self-

defense.”) (emphasis added); Reeves v. State, No. 01-10-00395-CR, 2012 WL

5544770, at *4 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012) (mem. op. on reh’g,

not designated for publication) (“Such threats and conduct could not have provoked

a fight that was already in progress.”), aff’d, 420 S.W.3d 812 (Tex. Crim. App. 2013).

This would be a necessary element of any claim by the State that Elizondo’s words,

while already running away, actually provoked the second altercation, and it is

simply insufficient given the sequence of events. See Mendoza v. State, 349 S.W.3d

273, 280-81 (Tex. App.—Dallas 2011, pet. ref’d).

      b.       The court of appeals likewise did not address whether the words “van a

ver” were reasonably calculated to provoke a pursuit and further attack. In fact, the

opinion does not mention this requirement at all. Elizondo argued there was no

showing that the words were reasonably calculated to provoke an attack or that the

words were used for the purpose and with the intent to provide Elizondo with a

pretext for inflicting harm upon Junior or the ulitmate victim, Limon, Sr. Smith, 965


      16
           15RR234-235.

                                           6
S.W.2d at 512. “Although a jury can rely upon wholly circumstantial evidence to

find provoking acts or words, such evidence must create more than a suspicion

because juries are not permitted to reach speculative conclusions.” Reeves, 2012 WL

5544770, at *5. There was simply no evidence to support a finding that the words,

“Van a ver,” were of the type that were reasonably capable of causing an attack or

had a reasonable tendency to cause an attack. Smith, 965 S.W.2d at 517 (“An act is

reasonably calculated to cause an attack if it is reasonably capable of causing an

attack, or if it has a reasonable tendency to cause an attack. Some provoking acts or

words can by their own nature be legally sufficient to support a jury finding.”).

         In fact, Junior’s own explanation for the pursuit belies any reliance on the

words, “Van a ver,” as the provocation for the second altercation, as he testified he

followed merely to make sure that Elizondo was going to leave and that Elizondo’s

words were spoken after the pursuit was already underway.17 Yet, once he discovered

Elizondo already inside the vehicle, he banged on the window to get him out of the

truck.

         There was nothing presented that showed that Elizondo intended to do

anything other than escape the attack by running to his truck—there is nothing to

support a finding that Elizondo intended his actions to provoke Limon, Sr. into


         17
              15RR234-235; 16RR9-10, 25.
                                           7
pointing a weapon at him as a pretext for killing him. The court of appeals relied on

a statement given to police where Elizondo said that he “ran towards [his] truck

where [he] had [his] duty issued H & K 40 Caliber handgun.” Elizondo, 2014 WL

222834, at *6. The fact that Elizondo ran towards his truck where his gun was

located does not imply that he intended to continue the altercation at the truck or

that he intended to use the altercation as a pretext to kill Limon, Sr.—in fact, the

same statement shows that Elizondo perceived that the men were “attacking” him

and he “just thought [he] needed to get away from them before they take him to the

ground.”18 The statement relied upon by the court of appeals can only support its

decision when taken completely out of context. Elizondo respectfully requests that

this Court grant the petition and conduct the analysis that the court of appeals

should have undertaken.

III. The court of appeals affirmed on a jury charge that was grossly
     incorrect by ignoring and then misapplying this Court’s
     precedent.
      The court of appeals’ opinion demonstrates an inconsistent application of

this Court’s precedent that could lead to erroneous future decisions in an area of




      18
           21RRDX21.

                                         8
law that is already confusing at best. Elizondo raised four19 different charge errors,

which the court of appeals erroneously rejected without applying the proper

preservation and harm standards. Ultimately, Elizondo’s conviction was affirmed on

a jury charge that was an “impenetrable forest of legal ‘argle-bargle.’” Reeves, 420

S.W.3d at 817.

       A.      The court of appeals erroneously refused to review two
               omissions from the charge, in conflict with this Court’s prior
               decisions
       Elizondo argued below that once the trial court undertook to charge the jury

on the law of self-defense, it had the obligation to provide correct and complete

instructions—the self-defense instructions should have included instructions on the

law of multiple assailants and threats as justifiable force.

       The jury charge did not provide an instruction on section 9.04, regarding a

threat of deadly force by production of a weapon. See TEX. PENAL CODE ANN. §

9.04. This was certainly raised by the evidence. Elizondo stated he intended to grab

his gun and his credentials and thought that if he displayed them, the men might




       19
            Elizondo also argued that provocation should not have been submitted to the jury.
Again, the court of appeals failed to properly apply Smith v. State to the evidence and rejected
Elizondo’s charge arguments based on its erroneous finding that Elizondo did not abandon the
first encounter. Elizondo submits that if the court had properly analyzed Smith v. State, the jury
charge should not have included a provocation instruction, and Elizondo respectfully requests the
ability to fully brief this issue if review is granted.

                                                9
stop.20 Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st Dist.] 2012,

no pet.).

       Additionally, the jury charge omitted any reference to the law of multiple

assailants, instead instructing the jury with reference only to Limon, Sr.’s conduct.

This Court, however, has held that when there are multiple assailants, a jury charge

focusing on only one of those assailants is too restrictive. Frank v. State, 688 S.W.2d

863, 868 (Tex. Crim. App. 1985); Lerma v. State, 807 S.W.2d 599, 601 (Tex. App.—

Houston [14th Dist.] 1991, pet. ref’d). There was certainly evidence in the record

that multiple attackers were pursuing Elizondo.21 It was error for the trial court to

limit its instructions to Elizondo’s beliefs as to the “person against [whom] deadly

force was used.”22

       Elizondo argued below that Barrera v. State required treating the omission of

the multiple assailants charge as “error” that the court could properly review under

Almanza. In Barrera, this Court held that when a trial court undertakes to instruct a

jury on a defense raised by the evidence, that defense becomes the law applicable to

the case, and the trial court has a duty to state the law correctly. Barrera v. State, 982

S.W.2d 415, 416 (Tex. Crim. App. 1998). The Court held that where a self-defense

instruction contains an error to which counsel did not object—in that case a
       20
          16RR200-201.
       21
          17RR19, 21.
       22
          2Supp.CR3.
                                           10
complete omission of an application paragraph—the error is subject to review for

egregious harm. Id. at 417.

      This Court later clarified that it does not matter if the defensive instruction

was initially requested by the defendant or sua sponte included by the judge—the

judge bears sole responsibility for errors in the charge:

              However, if the trial judge does charge on a defensive issue
      (regardless of whether he does so sua sponte or upon a party’s request), but fails
      to do so correctly, this is charge error subject to review under Almanza.
      If there was an objection, reversal is required if the accused suffered
      “some harm” from the error. If no proper objection was made at trial, a
      reversal is required only if the error caused “egregious harm.”

Vega v. State, 394 S.W.3d 514, 518-19 (Tex. Crim. App. 2013) (emphasis added).

The court of appeals, however, refused to recognize this precedent and held that

both the “threats as justifiable force” and “multiple assailants” issues were waived by

defense counsel’s failure to request the instructions. Elizondo, 2014 WL 222834, at

*10. The court erroneously refused to review these errors or apply a harm analysis.

      B.     The court of appeals erroneously failed to properly apply the
             appropriate harm analysis to the other charge errors
      Elizondo further pointed out two other errors in the jury charge, which the

court of appeals held were reviewable but then failed to properly analyze under

Almanza.




                                             11
      First, the presumption of reasonableness instruction was incomplete. The jury

was instructed that a presumption of reasonableness would arise if the actor “knew

or had reason to believe that the person against [whom] deadly force was used was

committing or attempting to commit murder.”23 However, Texas Penal Code section

9.32(b) provides that the presumption arises in two other situations raised by the

evidence in this case, where the actor knew or had reason to believe an assailant “(A)

unlawfully and with force entered, or was attempting to enter unlawfully and with

force, the actor’s occupied habitation, vehicle, or place of business or employment;”

and “(B) unlawfully and with force removed, or was attempting to remove unlawfully

and with force, the actor from the actor’s habitation, vehicle, or place of business or

employment.” TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B). Here, the evidence

showed that Elizondo knew or had reason to believe that Junior either unlawfully

and with force entered Elizondo’s vehicle or removed him from the vehicle, or was

attempting to do so.24 Defense counsel did not object to this charge, and while the

court of appeals agreed that the evidence “warranted the inclusion of these

instructions,” it nevertheless found that the error was not egregiously harmful.

Elizondo, 2014 WL 222834, at *9.


      23
           2Supp.CR3.
      24
        12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134; 15RR233; 16RR113,
197; 21RRDX21.

                                          12
      Second, Elizondo argued that the provocation instruction changed the State’s

burden of proof by erroneously telling the jury that if it found provocation, it must

find Elizondo guilty of murder. 25 The jury received this 169-word, unintelligible

instruction:

              So, in this case, if you find and believe from the evidence beyond
      a reasonable doubt that the defendant, Jose Guadalupe Rodriguez
      Elizondo, immediately before the difficultly, then and there did some
      act, or used some language, or did both, as the case may be, with the
      intent on his, the defendant’s, part to produce the occasion for killing
      the deceased, Fermin Limon, and to bring on the difficultly with the
      said deceased, and that such words and conduct on the defendant’s
      part, if there were such, were reasonably calculated to, and did, provoke
      the difficulty, and that on such account the deceased attacked
      defendant with deadly force, or reasonably appeared to defendant to so
      attack him or to be attempting to attack him, and that the defendant
      then killed the said Fermin Limon by use of deadly force, to wit, by
      shooting him with a firearm, in pursuance of his original design, if you
      find there was such design, then you will find the defendant guilty of
      murder.26

The jury should not have been instructed that if it found provocation, it should find

Elizondo guilty—rejection of self-defense does not require a finding of all the

elements of murder. In fact, the jury was required to find all the elements of murder

and reject self-defense in order to convict. Saxton v. State, 804 S.W.2d 910, 914 (Tex.

Crim. App. 1991). While the court of appeals erroneously determined otherwise,



      25
           2Supp.CR6.
      26
           2Supp.CR5-6 (emphasis added).

                                           13
defense counsel did not object to this error.27 The court found no harm, but it did

so without evaluating the Almanza factors. Elizondo, 2014 WL 222834, at *9.

      In addressing these two charge errors, while paying lip service to the

applicable standard of review, the court of appeals did not engage in any analysis at

all. Id. With respect to the presumptions of reasonableness, the court of appeals held

that because the jury “could have found that Elizondo was not entitled to a self-

defense argument because he provoked the initial difficulty and did not abandon the

encounter, . . . these extra instructions would not have affected the outcome.” Id.

But just because the jury could have believed the State’s version of the evidence does

not mean that it was not harmful to submit an incomplete version of Elizondo’s

defense. Cornet v. State, 417 S.W.3d 446, 453 (Tex. Crim. App. 2013) (“We agree

with appellant that a review for sufficiency of the evidence cannot substitute for a

harm analysis.”).

      With respect to the erroneous provocation instruction, the court of appeals

held that “from voir dire to closing arguments, the jury was repeatedly instructed

that it was the State’s burden to prove that Elizondo committed murder.” Elizondo,

2014 WL 222834, at *9. Those “repeated” instructions were completely undermined




      27
           See generally 17 RR.
                                         14
by the instruction that if it rejected provocation, the jury must find Elizondo guilty

of murder, yet the court of appeals did not address that argument.

      C.     The jury charge was a garbled mess, and a review of the
             complete charge and application of the proper harm analyses
             requires reversal.
      Considering the entire jury charge and all the harm factors, it becomes clear

that Elizondo suffered the requisite degree of harm. As this Court recently

explained,

      The trial judge must “distinctly set[ ] forth the law applicable to the
      case” in the jury charge. “It is not the function of the charge merely to
      avoid misleading or confusing the jury: it is the function of the charge
      to lead and to prevent confusion.” While generally, “in the absence of
      evidence to the contrary, we will assume that the jury followed its
      written instructions,” this presupposes that the instructions are
      understandable. Because these instructions were not, “this is not a case
      in which the reviewing court should apply the usual presumption that
      the jury understood and applied the court’s charge in the way it was
      written.”

Reeves, 420 S.W.3d at 819. When the jury charge contains numerous errors,

incomprehensible wording, and essentially robs the defendant of his only defense,

the Court should be extraordinarily careful to analyze the harm, recalling that

neither party has a burden on this issue—the burden of properly analyzing harm falls

squarely on this Court. Id. at 816, 819.




                                           15
       Here, as in Reeves, the jury charge contained numerous errors and was

incomplete. 28 Additionally, the state of the evidence mandates a finding of the

requisite degree of harm. With respect to provocation and the presumption of

reasonableness, the evidence was undisputed that Junior and two others pursued

Elizondo to his vehicle, and Elizondo testified that Junior pulled him out of the

vehicle.29 All the witnesses testified that, at the very least, Junior was beating on

Elizondo’s car and trying to force him to come out. 30 But the jury was never

instructed that, if it believed those facts, a presumption of reasonableness could

arise.31 Instead, in order to raise the presumption, they were instructed that they had


       28
           The charge contained numerous confusing “converse” instructions, which tell the jury
that “if the state met its burden, the juries should find against the defendants on the issue of self
defense,” and which have been criticized by the Texas Pattern Jury Charge committee on Criminal
Defenses:
                The Dallas court of appeals in 1999 appeared sympathetic to a defendant’s
       argument that a converse instruction of the second type is an ‘anachronism in
       Texas law’ that violates the spirit of the prohibition against comment on the
       evidence. Nevertheless, it held that it was bound to precedent establishing that the
       giving of such a converse instruction is not a basis for reversing a conviction. Aldana
       v. State, No. 05-98-00135-CR, 1999 WL 357355, at *6-7 (Tex. App.—Dallas June 4,
       1999, pet. ref’d) (not designated for publication) (relying on Powers v. State, 396
       S.W.2d 389, 391-92 (Tex. Crim. App. 1965)). The Committee concluded that if
       jury instructions on self-defense are properly crafted, so-called converse instructions
       are neither necessary nor desirable. Thus the instruction at section B14.4 below
       does not include them.
Tex. Pattern Jury Charges, Criminal Defenses, § B14.2.9.
       29
        12RR180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134, 233; 16RR113, 197, 201-
203; 21RRDX21.
       30
            13RR149, 179; 14RR104-105; 15RR42, 80, 237; 16RR29.
       31
            2Supp.CR.3.

                                                 16
to find that Elizondo knew or had reason to believe that Limon was committing or

attempting to commit “murder.”32 Compounding this problem was the lack of a

multiple assailants instruction, which would have allowed the jury to consider

Junior’s conduct, as well as the other two assailants.33 Instead, all of the language in

the charge referred to Limon’s conduct alone.34 Under these circumstances, the jury

charge failed to adequately protect Elizondo’s right to argue self-defense. See Brown v.

State, 651 S.W.2d 782, 784 (Tex. Crim. App. 1983).

      Second, any evidence of guilt was not so overwhelming that the jury charge

errors necessarily caused no harm to Elizondo. Mendoza, 349 S.W.3d at 282. But

nevertheless, the jury was not only instructed to disregard Elizondo’s self-defense if it

found provocation, it was instructed to find Elizondo guilty of murder. Cf. id. In other

words, the jury charge implied not only that there was some evidence to support

every element of provocation, but that there was some evidence to support every

element of murder. Cf. id.

      Furthermore, self-defense was the focus of the entire case. 35 Specifically,

Elizondo’s defense centered on the following: (1) he abandoned the difficulty by


      32
           Id.
      33
           Id.
      34
           Id.
      35
           See 17RR82.

                                           17
running to his truck;36 (2) the club’s bouncers chased Elizondo to his truck yelling

obscenities with the intent to continue an attack on Elizondo;37 (3) Junior then

banged on Elizondo’s window to get him out of the truck;38 (4) Elizondo was pulled

out of his truck, and then Limon. Sr. pointed a gun at him. 39 For example,

provoking the difficulty was not a theory that was downplayed or ignored by the

State—provocation was the State’s central argument. Specifically, the State argued

during closing:

             This moment in time is pivotal, because he runs from what he
      says are five or six guys beating on him. That’s what he told Deputy
      Hector Garcia. This moment is pivotal, because this is where he said—
      or Trooper Champion said that he just got kicked in the head. He
      further says that at some point in time, he books it to his car, to his
      truck, and on the way, he is getting hit on the head (knocking).

               ....

             Somewhere along the way, while he’s running, he gets hit on the
      head. In his statement he says, at least twice. He needs you to believe
      that he’s being beaten (indicating).

               ....

             He gets to his truck, first thing he does is pull out a weapon.
      Now, his testimony is that he got into his truck and closed the door.
      Far different from what is in his statement. He grabs the gun—and he

      36
           17RR89.
      37
           17RR90-92.
      38
           17RR95-96.
      39
           17RR98.

                                        18
      decides to grab that gun—and at that point in time when he grabs that
      gun, another escalation. Things just got deadly, and all bets are off.
      Everybody’s life now is in danger.40

Thus, the State did not distinguish between the two altercations, but was allowed to

argue that the first altercation was the provocation that mattered. The self-defense

instructions took up a significant part of the jury charge.41 Mendoza, 349 S.W.3d at

283. Furthermore, the state of the evidence shows egregious harm, given that

Elizondo admitted to shooting Limon. See id.

                          CONCLUSION AND PRAYER

      This Court should grant review, request additional briefing, and render the

judgment that the court of appeals should have rendered. The Court should reverse

the judgment of the lower courts and render a judgment of acquittal or,

alternatively, reverse and remand for further proceedings below.




      40
           17RR112-114.
      41
           See 2Supp.CR5-6.

                                         19
                                      Respectfully submitted,


                                      /s/ Brandy Wingate Voss
                                      Brandy Wingate Voss
                                      State Bar No. 24037046
                                      SMITH LAW GROUP, P.C.
                                      820 E. Hackberry Ave.
                                      McAllen, TX 78501
                                      (956) 683-6330
                                      (956) 225-0406 (fax)
                                      brandy@appealsplus.com
                                      Counsel for Appellant




        CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)

      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), because it contains 4,499 words,

excluding the parts exempted by Rule 9.4.


                                      /s/ Brandy Wingate Voss
                                      Brandy Wingate Voss




                                        20
                        CERTIFICATE OF SERVICE


      On March 11, 2015, in compliance with Texas Rule of Appellate Procedure

9.5, I served a copy of this document upon all other parties to the trial court’s

judgment and the respondent by first-class United States mail, return receipt

requested, properly posted and deliverable as follows:

Ted Hake
Michael Morris
Assistant District Attorney
Appeals Section
Office of Criminal District Attorney
Hidalgo County, Texas
100 N. Closner, Rm 303
Edinburg, Texas 78539
Fax: (956) 380-0407
ted.hake@da.co.hidalgo.tx.us
michael.morris@da.co.hidalgo.tx.us


Lisa C. McMinn
John R. Messinger
State Prosecuting Attorney
Office of State Prosecuting Attorney of Texas
P. O. Box 13046
Austin, Texas 78711-3046
Fax: (512) 463-5724

                                       /s/ Brandy Wingate Voss
                                       Brandy Wingate Voss




                                         21
APPENDIX




   22
Elizondo v. State, Not Reported in S.W.3d (2014)


                                                                  admitted to finishing a six-pack of beer. Maria did not drink at
                                                                  that time. The three then decided to go to Punto 3, a nightclub
                  2014 WL 222834
                                                                  in Mission, Texas. Punto 3 was owned by Fermin Limon, Sr.,
    Only the Westlaw citation is currently available.
                                                                  his wife Nora, his son Fermin Limon, Jr. (Junior), and his
          SEE TX R RAP RULE 47.2 FOR                              daughter Mireya. Elizondo and Maria went home to change
    DESIGNATION AND SIGNING OF OPINIONS.                          and then proceeded to the bar. Juan was picked up by a
                                                                  friend and arrived later. All of the parties were at the bar
           MEMORANDUM OPINION                                     by 12:45 a.m. At this point, the versions of what occurred
      Do not publish. Tex.R.App. P. 47.2(b).                      differ, therefore, we will summarize each relevant witness's
             Court of Appeals of Texas,                           testimony.
             Corpus Christi–Edinburg.

  Jose Guadalupe Rodriguez ELIZONDO, Appellant,                   A. Jose Elizondo
                        v.                                        Elizondo, a customs agent employed by the United States
           The STATE of Texas, Appellee.                          Department of Homeland Security, testified that he arrived at
                                                                  the bar with his wife in his white Dodge pickup. He stated
       No. 13–12–00028–CR.           |    Jan. 16, 2014.          that, as a licensed peace officer for the State of Texas, he
                                                                  has an assigned pistol from U.S. Customs. This pistol was
On appeal from the 398th District Court of Hidalgo County,
                                                                  in the console of his pickup truck, as well as his credentials
Texas.
                                                                  identifying him as a federal agent. Elizondo explained that,
Attorneys and Law Firms                                           under federal law, he is authorized to carry a weapon at all
                                                                  times. He left his pistol and credentials in the car when he and
Brandy M. Wingate, for Jose Guadalupe Rodriguez Elizondo.         his wife entered the club.

Rene A. Guerra, for The State of Texas.                           Elizondo testified that he had gone into the bar and then went
                                                                  outside, when he saw his wife Maria exit the bar looking
Before Chief Justice VALDEZ and Justices BENAVIDES
                                                                  “teary-eyed,” “emotional,” and “in distress.” He asked her
and LONGORIA.
                                                                  what was wrong and she said that someone pushed her “really
                                                                  ugly.” She pointed to the man who had allegedly pushed
                                                                  her, who turned out to be Junior. Elizondo asked Junior why
               MEMORANDUM OPINION                                 he had pushed his wife, and he said Junior was cocky and
                                                                  aggressive towards him. Elizondo claimed that he did not
Memorandum Opinion by Justice BENAVIDES.
                                                                  know Junior worked at the bar because he was wearing a
 *1 Appellant, Jose Guadalupe Rodriguez Elizondo, was             different shirt than the other Punto 3 employees—he thought
convicted of murder and sentenced to twenty-five years            Junior was just another customer. Elizondo called Junior a
in prison at the Texas Department of Criminal Justice—            curse word in Spanish and Junior responded by pushing him.
Institutional Division. By two issues, Elizondo argues that:      Elizondo pushed back. Then, Elizondo claimed that Rigo,
(1) the evidence was legally insufficient to support the jury's   another security employee, punched Elizondo on the right
rejection of his self-defense argument and (2) the jury charge    side of his face. Elizondo punched back, and then became
was erroneous and harmful, requiring reversal. We affirm.         enthralled in a brawl with at least four nightclub employees.
                                                                  Elizondo believed that he could be killed if he fell to the
                                                                  ground, so as soon as he could, he ran to his truck. The
                                                                  distance from the bar to his truck was approximately seventy
                    I. BACKGROUND
                                                                  yards. Elizondo testified that he could not believe it when
The undisputed facts reveal that, on August 8, 2010, appellant    he realized his aggressors were following him. He stated that
Elizondo, his brother Juan, and his wife Maria went to            he heard, “Stop, asshole,” and that the men tried to trip his
a barbeque at Elizondo's mother house. At the barbeque,           boots, but he did not stop running. He ran past a fence to
Elizondo, Juan, and Maria socialized. Elizondo testified that     his car. While running, he pulled out the control to his truck
he drank approximately two beers, while his brother Juan          and unlocked his pickup. He testified that, at that time, he
                                                                  remembered he had his gun in the truck.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Elizondo v. State, Not Reported in S.W.3d (2014)


                                                                  brother's back and began fighting with him. At that point, he
 *2 As soon as he arrived at his pickup, Elizondo testified       heard his brother yell, “U.S. Customs” and “please put the
that he got in, closed the door, and grabbed the gun from his     gun down.” Then he heard two gunshots.
console. He wanted to grab his credentials, too, but he claimed
that Junior reached in and pulled him out of his truck. After
being pulled out, Elizondo claimed he started hitting Junior      C. Maria Elizondo
to protect himself. Then, Elizondo's brother Juan arrived and     Maria Elizondo, Elizondo's wife, confirmed that her husband
pulled Junior off of him. At that point, Elizondo then saw        and brother-in-law Juan had been drinking at their mother's
a man approaching his vehicle with a gun. This person was         home prior to going to Punto 3. After she and her husband
Limon. Elizondo testified that Limon pointed the gun at him       arrived at the Punto 3 nightclub, Juan handed her a margarita.
and did not say anything. Elizondo claimed that he shouted to     Maria and her husband then danced two songs. After dancing,
Limon, “U.S. Customs” and told him to “throw the gun” about       Maria talked to some friends while her husband went with
two times. He claimed that Limon never lowered his gun.           his brother. When Maria saw her husband exiting the bar,
Elizondo fired, claiming he had “no other choice” because he      she started to follow him out. She still had her drink in her
was convinced Limon was going to shoot.                           hand. She testified that, as she approached the exit, a female
                                                                  employee working at the front entrance stated, “This stupid
On cross-examination, the prosecution questioned Elizondo         lady doesn't want to leave her drink behind.” Maria went
with the statement he gave to police the night of the shooting.   back and set her drink down at the bar, but stated that she
Although Elizondo testified that he didn't remember he had        was offended by the woman's words. She testified that as she
his gun in his console until he began running to his truck, his   was walking back towards the entrance, Junior arrived and
statement provided that, “I ran towards my truck where I had      grabbed her. Maria testified that he told her, “I know women
my duty issued H & K 40 Caliber handgun.” The prosecution         like you” and to “get out.” Then, according to Maria, Junior
suggested that Elizondo ran to the truck specifically to          pushed her and took her outside. Junior then went back into
retaliate against the security guards with his gun. Elizondo      the club.
denied this assertion.
                                                                   *3 Maria, upset, began looking for her husband outside. She
                                                                  noticed Junior had returned outside laughing and she thought
B. Juan Elizondo                                                  he was making fun of her. She found her husband, pointed
Juan, appellant's brother, testified that when he arrived at      Junior out to him, and explained that Junior had pushed
Punto 3 with his friend, Elizondo and his wife were already       her inside. Maria stated that Elizondo then asked Junior,
there. Juan said hello to some friends. He then bought a beer     “Why were you pushing my wife?” A fight then ensued.
for himself and his brother, and a mixed drink for his sister-    Maria claims that a security guard punched her husband
in-law Maria. He stated that he saw a fight erupt between two     in the face, and that the men were yelling, grabbing, and
women and that he tried to break up the fight, even though        pushing. She said she yelled at the Punto 3 security guards to
his brother told him “not to get involved.” Juan was escorted     leave her husband alone. Then, she testified that her husband
out of the building by Punto 3 security along with the two        started running towards his truck and that the security guards
fighting women. After explaining the situation to Limon, Sr.,     followed him, yelling, “Stop asshole!” She also testified that
whom he thought was the head of security or a manager, he         they were trying to trip him while he was running.
was allowed back inside the club.
                                                                  Maria ran to her husband's truck, where all the men had
As soon as Juan entered, though, he testified that he noticed     convened. She saw her husband pointing a gun saying,
people running out. He heard a “commotion” and went               “Lower your weapon. Lower your weapon.” She did not hear
outside again, because he did not see his brother inside the      him say that he was a U.S. Customs agent. Then, Maria heard
club. He also thought he heard his sister-in-law Maria yelling.   her husband's gun fire.
When he got outside, Juan saw Maria “crying” and “yelling.”
Juan saw “at least three guys hitting” Elizondo when his
brother started running to his pickup truck. Juan testified       D. Francisco Garcia
that the three security guards followed his brother, so he        Francisco Garcia worked at Punto 3 as a general employee.
ran after them, too. When he arrived at Elizondo's truck, he      His job responsibilities included setting up for the night,
saw Elizondo and Junior struggling. He pulled Junior off his      cleaning, working at the door to check for weapons and proper


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Elizondo v. State, Not Reported in S.W.3d (2014)


age identification, assisting with security, and performing        witnessed Elizondo “looking for something in the console.”
tasks as required by the Limon family. He carried a                Junior “got to the truck and was hitting the window,” telling
walkie-talkie and wore a microphone to be in constant              him to “Get off asshole.” He said that then Juan, Elizondo's
communication with his employers throughout the night.             brother, grabbed Junior from behind. At that point, Elizondo
                                                                   got out and started hitting Junior with a gun on Junior's head
Francisco testified that, at approximately 1:00 a.m. on August     and forehead. When Elizondo brandished his gun, though,
9, 2013, he was summoned by intercom and through his               Rigo left running, thinking he was going to be killed. He
walkie-talkie to report to the bar section because a fight         returned to the club and saw Limon, Sr. approaching the
had broken out. He recalled that he, along with four other         truck with a gun. Rigo said that Limon, Sr. had a gun in
security guards, escorted two men and two women who had            one hand and was making a gesture with the other hand
been fighting to the nightclub's exit. He then returned to his     as though to calm Elizondo down. He heard Elizondo say,
assigned watch area that night, the stage area. Seconds later,     “Get to the ground, son of a bitch. Get to the ground ...
Francisco testified that he and all other security employees       you dog.” According to Rigo, before Limon, Sr. could
were alerted by their walkie-talkies to report outside. Outside,   respond, Elizondo “instantly” fired his weapon. Rigo stated
he noticed a group of people in a fight or “commotion.” He         that Elizondo never identified himself as a federal agent that
witnessed the defendant Elizondo run to a white truck. He          worked for U.S. Customs. Rigo saw Limon, Sr. “walking,
then witnessed some of his fellow employees follow Elizondo        like, if he was in pain like it hurt,” and then fall down.
and then bang on the window of Elizondo's truck. According
to Francisco, Elizondo then got out of his truck and hit Junior.
He then heard a gunshot and someone yelled, “Run. There's          F. Fermin Limon, Junior
a gun.” At that point, Francisco called 911, as he saw his         Junior worked for the family business as a bartender. He
co-workers running from the truck back to the club. He then        testified that, on the night of the incident, his wife, who
saw Limon, Sr. running alongside the fence towards the white       worked at the front counter, informed him that a woman was
truck. At that point, he did not see Limon, Sr. carrying a         trying to leave Punto 3 with an alcoholic drink. This woman
weapon. Once Limon, Sr. got closer to where his son, Junior,       was later identified as Maria, the defendant's wife. Junior
and Elizondo were, he noticed that Limon, Sr. and Elizondo         claimed that he grabbed Maria's arm in an effort to stop her
were pointing guns at each other. He heard Elizondo tell           from leaving the premises with her drink, as the club would
Limon, Sr. to get on the ground, but Limon, Sr. did not.           be fined by the Texas Alcoholic Beverage Commission for
Instead, he saw Limon, Sr. hold the gun with one hand and          allowing that. He escorted her to the door and returned to
make gestures with his other hand as if to calm Elizondo           the bar. At that point, his mother asked him to go outside
down. Francisco then heard more gunshots and saw Limon,            and check on his father, as his father had exited when some
Sr. fall. At that time, Francisco placed his second call to 911.   patrons had been escorted outside.

                                                                   Junior saw his father talking to two men and Maria. Maria,
E. Rodrigo Hernandez Carrion                                       according to Junior, was screaming, calling Junior “pendejo ”
 *4 Rodrigo Hernandez Carrion (Rigo) also worked at Punto          and a “dumb ass.” Her husband, Elizondo, also called Junior
3 as a general employee. On the night of the incident, Rigo        a “pendejo.” Junior took offense to this, and his father Limon,
testified that he was called by walkie-talkie to remove some       Sr. told Elizondo not to insult his son. Limon, Sr. pushed his
women from the premises for fighting. Outside, he saw              son back because Elizondo was being “aggressive.” Junior
Limon, Sr. and Junior talking to two men and a woman. He           testified that other employees, including Rigo and Francisco,
said the woman (presumably Maria) was hysterical and being         were now near the commotion. Junior said that one man,
disrespectful to Junior, calling him “idiot, stupid, sons of       either Elizondo or his brother Juan, then hit his father, Limon,
bitches.” He heard Elizondo tell Junior, “Don't disrespect my      Sr. Junior was shocked at this. Next, according to him, Rigo
woman you son of a bitch” and “Well, son of a bitch, are you       struck the man back with an open hand. After a skirmish,
going to calm down or not?”                                        Elizondo began running, and the club employees followed
                                                                   him. Junior heard Elizondo say, “Van a ver ” 1 while running,
Rigo then testified that fighting started when Elizondo swung      and Junior “got scared” because he felt it was “a threat.”
at Limon, Sr. A brawl ensued. Rigo then witnessed Elizondo         Junior kept following Elizondo because of this threat.
run to his truck, get in, and “close [ ] the door and lock[ ]
it.” Rigo followed, along with his fellow employees. Rodrigo


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Elizondo v. State, Not Reported in S.W.3d (2014)


 *5 When Junior arrived at the truck, Elizondo was “inside           particular offense for which the defendant was tried.” Id. A
the truck ... searching around.” Junior began hitting the            hypothetically correct murder charge in this case would have
driver's side window. While banging on the window, he felt           required the jury to find that Elizondo intentionally caused
someone grab him from behind in a headlock. It was Juan,             the death of Limon by shooting him with his gun. See TEX.
Elizondo's brother. Then, Junior felt punches from both men.         PENAL CODE ANN. § 19.02(b)(1) (West 2011).
He heard a shot fired and then someone screamed that there
was an “officer.” After the shot, the men let him go and he
ran back to the club. He did not see his father until he crossed     B. Applicable Law
the fence. When he saw Limon, Sr. “all bloody on the floor,”         With regard to Elizondo's self-defense argument, “a person
he became hysterical.                                                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.” See id. § 9.31(a) (West
                II. LEGAL SUFFICIENCY                                2011). The actor's belief that the force was immediately
                                                                     necessary is presumed reasonable if the actor knew or had
A. Standard of Review
                                                                     reason to believe that the person against whom the force was
In conducting a legal sufficiency review, we view the
                                                                     used was attempting to commit a felony, like murder in this
evidence in a light most favorable to the verdict and
                                                                     case. Id. § 9.31(a)(1)(C).
ask “whether any rational trier of fact could have
found the essential elements of the crime beyond a
                                                                      *6 The person who is claiming self-defense cannot have
reasonable doubt.” Garcia v. State, 367 S.W.3d 684, 686–87
                                                                     provoked the person against whom the force was used. Id.
(Tex.Crim.App.2012) (citing Jackson v. Virginia, 443 U.S.
                                                                     § 9.31(a)(2). The Texas Court of Criminal Appeals further
307, 319 (1979)). The trier of fact, in this case the jury, is the
                                                                     elaborated on the doctrine of provocation in Smith v. State:
sole judge of the credibility of witnesses and the weight, if
any, to be given to their testimony. Id.; Brooks v. State, 323                    Provoking the difficulty, as the
S.W.3d 893, 899 (Tex.Crim.App.2010) (plurality op.). “The                         doctrine of provocation is commonly
reviewing court must give deference to the responsibility of                      referred to in our jurisprudence, is
the trier of fact to fairly resolve conflict in testimony, to                     a concept in criminal law which
weigh the evidence, and to draw reasonable inferences from                        acts as a limitation or total bar on
basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,                    a defendant's right to self-defense.
13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318–                          The phrase “provoking the difficulty”
19). In a sufficiency review, “circumstantial evidence is as                      is a legal term of art, and more
probative as direct evidence in establishing the guilt of an                      accurately translates in modern usage
actor, and circumstantial evidence alone can be sufficient                        to “provoked the attack.” The rule of
to establish guilt.” Id. “Each fact need not point directly                       law is that if the defendant provoked
and independently to the guilty of the appellant, as long as                      another to make an attack on him, so
the cumulative force of all the incriminating circumstances                       that the defendant would have a pretext
is sufficient to support the conviction.” Id. If the record                       for killing the other under the guise of
supports conflicting inferences, we presume that the fact                         self-defense, the defendant forfeits his
finder resolved the conflict in favor of the verdict. Garcia,                     right of self-defense.
367 S.W.3d at 687; Brooks, 323 S.W.3d at 899.
                                                                     965 S.W.2d 509, 512 (Tex.Crim.App.1998). The use of force
We measure the sufficiency of the evidence supporting a              against another is not justified if the actor provoked the
conviction “by the elements of the offense as defined by             other's use or attempted use of unlawful force, unless the actor
the hypothetically correct jury charge for the case.” Malik          abandons the encounter and the other nevertheless continues
v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). “Such             or attempts to use unlawful force against the actor. TEX.
a charge would be one that accurately sets out the law, is           PENAL CODE ANN. § 9.31(b)(4).
authorized by the indictment, does not unnecessarily increase
the State's burden of proof or unnecessarily restrict the
State's theories of liability, and adequately describes the          C. Discussion



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Elizondo v. State, Not Reported in S.W.3d (2014)


By his first issue, Elizondo complains that the evidence was        necessary for reversal depends on whether the appellant
legally insufficient to support the jury's rejection of his self-   preserved the error by objection. Ngo, 175 S.W.3d at 743.
defense argument. We disagree. A reasonable jury could have         If the defendant properly objected to the erroneous jury
believed that Elizondo provoked the fight, which made the           charge, reversal is required if we find “some harm” to the
self-defense argument unavailable. See Smith, 965 S.W.2d at         defendant's rights. Id. (citing Almanza, 686 S.W.2d at 171).
512. Rigo testified that Elizondo told Junior, “Don't disrespect    If no objection was made, we may only reverse if the record
my woman, you son of a bitch” and “Well, son of a bitch,            shows egregious harm. Id. at 743–44. “Errors that result in
are you going to calm down or not?” Junior stated that              egregious harm are those that affect ‘the very basis of the
Elizondo called him “pendejo ” or “dumbass.” Then, both             case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally
Rigo and Junior testified that Elizondo swung, hitting Limon,       affect a defensive theory.’ “ Cueva v. State, 339 S.W.3d 839,
Sr. Viewing the evidence in the light most favorable to the         858–59 (Tex.App.-Corpus Christi 2011, pet. ref'd).
verdict, we hold that a reasonable jury could have rejected
Elizondo's self-defense argument because they believed that
he provoked the initial difficulty. See id.                         B. Discussion
                                                                    Elizondo argues that the jury charge on self defense was
Elizondo argues, however, that even assuming he provoked            erroneous because it: (1) included a provocation instruction
the initial difficulty, he abandoned this first encounter near      over Elizondo's objection; (2) did not include all of the
the bar by running to his pickup truck. This abandonment            presumptions of reasonable force as provided by section 9.32
would thus make him eligible for the self-defense affirmative       of the penal code; (3) improperly stated the provocation
defense. See TEX. PENAL CODE ANN. § 9.31(b)(4)                      instruction; (4) failed to include an instruction on “threats as
(providing that self-defense is available to a defendant who        justifiable force”; and (5) failed to include any reference to
leaves the altercation but is still pursued). However, we           multiple assailants. We address each point in turn.
conclude that a reasonable jury could have found otherwise.
Junior testified that when Elizondo left the first difficulty and
                                                                    1. Provocation Instruction
ran to his pickup truck, he was yelling, “Van a ver,” roughly
                                                                    Elizondo asserts that the trial court committed error when
translated as “You will see.” Junior was frightened by that
                                                                    it included a provocation instruction to the jury over his
statement and believed it constituted a threat to him and his
                                                                    objection. In Matthews v. State, the Texas Court of Criminal
co-workers. Further, the jury had Elizondo's police statement
                                                                    Appeals held that a provocation charge is proper when:
wherein he admitted that he “ran towards [his] truck where
                                                                    (1) self defense is an issue; (2) there are facts in evidence
[he] had [his] duty issued H & K 40 Caliber handgun.” This
                                                                    which show that the deceased made the first attack on the
evidence supports the jury's implied finding that Elizondo
                                                                    defendant; and (3) the defendant did some act or used some
was running to his truck for his firearm, not to abandon or
                                                                    words intended to and calculated to bring on the difficulty
discontinue the fight.
                                                                    in order to have a pretext for inflicting injury upon the
                                                                    deceased. 708 S.W.2d 835, 837–38 (Tex.Crim.App.1986).
*7 We overrule Elizondo's first issue.
                                                                    The determination to include the instruction “is limited to
                                                                    whether there is any evidence raising the issue.” Id. at 838.
                                                                    “Words alone may provoke the difficulty, thereby justifying
               III. JURY CHARGE ERROR                               a provocation charge.” Id. (citing Morrison v. State, 256
                                                                    S.W.2d 410 (Tex.Crim.App.1953)).
In his second issue, Elizondo contends that the jury charge
contained error.                                                    Here, there was some evidence to show that Elizondo
                                                                    provoked the fight. Rigo testified that Elizondo told Junior,
                                                                    “Don't disrespect my woman, you son of a bitch” and “Well,
A. Standard of Review
                                                                    son of a bitch, are you going to calm down or not?” Junior
In analyzing a jury charge issue, or initial inquiry is
                                                                    stated that Elizondo called him a “pendejo ” or “dumbass.”
whether error exists in the charge submitted to the jury.
                                                                    Then, both Rigo and Junior testified that Elizondo swung,
Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005)
                                                                    hitting Limon, Sr. These words and actions constituted
(en banc); Almanza v. State, 686 S.W.2d 157, 171
                                                                    “some” evidence that Elizondo provoked the first difficulty.
(Tex.Crim.App.1985). If error is found, the degree of harm



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Elizondo v. State, Not Reported in S.W.3d (2014)


 *8 As noted earlier, however, the provocation doctrine           provided by section 9.32 of the penal code. TEX. PENAL
is limited if the defendant abandoned the difficulty. See         CODE ANN. § 9.32. The jury charge only provided that
Smith, 965 S.W.2d at 513 n. 1 (citing TEX. PENAL CODE             a presumption of reasonableness would arise if Elizondo
ANN. § 9.31(b)(4)). Elizondo argues he “abandoned” the            “knew or had reason to believe that the person against
encounter by running from the difficulty outside the bar to       [whom] deadly force was used was committing or attempting
his pickup truck, nearly seventy yards away. Therefore, he        to commit murder.” Id. § 9.32(b)(1)(C). Elizondo argues
contends that the provocation instruction was improper. To        that two additional scenarios should have been added to
achieve the abandonment caveat to the provocation doctrine,       the charge. First, where the actor knew or had reason to
though, it is “necessary that the intention to abandon the        believe an assailant “unlawfully and with force entered,
difficulty be, in some manner, communicated by the appellant      or was attempting to enter unlawfully and with force, the
so as ‘to advise his adversary that his danger has passed,        actor's occupied habitation, vehicle, or place of business
and make his conduct thereafter the pursuit of vengeance          or employment.” Id. § 9.32(b)(1)(A). And second, where
rather than measures to repel the original assault.’ “ Ervin      the actor “(B) unlawfully and with force removed, or was
v. State, 367 S.W.2d 680, 684 (Tex.Crim.App.1963); see            attempting to remove unlawfully and with force, the actor
also TEX. PENAL CODE ANN. § 9.31(b)(4) (providing                 from the actor's habitation, vehicle, or place of business or
that abandonment must be “clearly communicated”). Further,        employment.” Id. § 9.32(b)(1)(B).
“the abandonment of the difficulty by the defendant does not
arise where the difficulty was continuous, the only change         *9 Elizondo complains that he knew or had reason to
being in the position of the parties during the progress of the   believe that Junior unlawfully and with force pulled him out
encounter.” Ervin, 367 S.W.2d at 683–84 (citing Campbell v.       of his pickup truck, or was attempting to do so. He stated
State, 84 Tex.Crim. 89, 91, 206 S.W. 348 (1918)).                 that Junior's banging on Elizondo's driver's side window
                                                                  yelling “Get off asshole” meant that he was entitled to those
While it is undisputed by all of the witnesses that Elizondo      instructions.
ran nearly seventy yards away from the first difficulty, Junior
testified that Elizondo was yelling, “Van a ver,” roughly         We agree that the evidence in the record warranted the
translated as “You will see,” while running. Junior testified     inclusion of these instructions. Accordingly, we hold that
that he believed that Elizondo's words constituted a threat to    the trial court erred by omitting them. Having found error,
the others, which made Junior scared. These words did not         though, we do not find any egregious harm. 2 Ngo, 175
communicate to Junior that the danger had passed. See id. at      S.W.3d at 743–44. Because we previously concluded that
684. Further, the jury was presented with Elizondo's statement    a reasonable jury could have found that Elizondo was not
to the police which provided that he “ran towards [his] truck     entitled to a self-defense argument because he provoked
where [he] had [his] duty issued H & K 40 Caliber handgun.”       the initial difficulty and did not abandon the encounter, see
This evidence supports a rational inference that Elizondo was     section III(B)(1) supra, these extra instructions would not
running to his truck for a weapon, not to escape the fight.       have affected the outcome. See TEX.R.APP. P. 44.2. We
See id. at 683–84 (providing that one does not abandon a          overrule this issue.
difficulty by merely changing positions). Accordingly, we
find that a reasonable jury could have surmised that Elizondo
did not abandon the first encounter, and that the provocation     3. Improper Provocation Instruction
instruction was therefore merited.                                Elizondo also argued that the provocation instruction changed
                                                                  the State's burden of proof by instructing the jury to find
We conclude that the trial court did not err when it submitted    Elizondo guilty of murder if he provoked the difficulty. The
the provocation instruction to the jury because there was         charge provided as follows:
sufficient evidence to raise this issue. Matthews, 708 S.W.2d
at 838. Because we have found no error, no harm analysis is                   So, in this case, if you find and
required. Ngo, 175 S.W.3d at 743. We overrule this issue.                     believe from the evidence beyond a
                                                                              reasonable doubt that the defendant,
                                                                              Jose Guadalupe Rodriguez Elizondo,
2. Presumptions of Reasonable Force                                           immediately before the difficulty, then
Elizondo also argues that the trial court erred when it failed                and there did some act, or used
to include all of the presumptions of reasonable force as                     some language, or did both, as the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          6
Elizondo v. State, Not Reported in S.W.3d (2014)


             case may be, with the intent on                                    bodily injury by the production of a
             his, the defendant's part to produce                               weapon or otherwise, as long as the
             the occasion for killing the deceased,                             actor's purpose is limited to creating an
             Fermin Limon, and to bring on the                                  apprehension that he will use deadly
             difficulty with the said deceased, and                             force if necessary, does not constitute
             that such words and conduct on the                                 the use of deadly force.
             defendant's part, if there were such,
             were reasonably calculated to, and did,               TEX. PENAL CODE ANN. § 9.04. It is undisputed, however,
             provoke the difficulty, and that on                   that Elizondo did not request this instruction. In Posey v.
             such account the deceased attacked                    State, the Texas Court of Criminal Appeals held as follows:
             the defendant with deadly force, or
                                                                                Article 36.14 [of the Texas Code of
             reasonably appeared to defendant to
                                                                                Criminal Procedure] ... mandates that
             so attack him or to be attempting to
                                                                                a trial court submit a charge setting
             attack him, and that the defendant then
                                                                                forth the law “applicable to the case.”
             killed the said Fermin Limon by use
                                                                                The question in this case is whether
             of deadly force, to wit, by shooting
                                                                                this imposes a duty on trial courts
             him with a firearm, in pursuance of
                                                                                to sua sponte instruct the jury on
             his original design, if you find there
                                                                                unrequested defensive issues. We hold
             was such design, then you will find the
                                                                                Article 36.14 imposes no such duty.
             defendant guilty of murder.
                                                                   966 S.W.2d 57, 62 (Tex.Crim.App.1998). “Though the
(Emphasis added). At trial, Elizondo argued that “the jury
                                                                   evidence might raise a defensive issue, it does not necessarily
should have been instructed, however, that if it found
                                                                   follow that a trial court has a duty to sua sponte instruct the
provocation, it should reject self-defense.” We agree and hold
                                                                   jury on that issue when the defendant does not request such
that this instruction was erroneous.
                                                                   an instruction.” Id. Elizondo failed to make this request, so
                                                                   we overrule this issue.
Having found error, we turn to a harm analysis. Almanza,
686 S.W.2d at 171. To determine if Elizondo suffered some
harm by this incorrect instruction, we consider “the entire        5. Failure to Include a Multiple Assailant Instruction
jury charge, the state of the evidence, including the contested    Finally, Elizondo asserts that the trial court erred when it
issues and weight of probative evidence, the argument of           failed to include a multiple assailant instruction in the jury
counsel and any other relevant information revealed by the         charge. The Texas Court of Criminal Appeals “has held that
record of the trial as a whole.” Id. Upon a thorough review        a charge which is confined only to the right of self-defense
of the trial record and jury charge, though, we find no harm.      against the deceased is too restrictive if there is evidence that
From voir dire to closing arguments, the jury was repeatedly       more than one person attacked the defendant.” Frank v. State,
instructed that it was the State's burden to prove that Elizondo   688 S.W.2d 863, 868 (Tex.Crim.App.1985) (citing Sanders v.
committed murder. The jury charge reinforced this tenet. In        State, 632 S.W.2d 346 (Tex.Crim.App.1982)). “Accordingly,
light of the foregoing, we hold that the error was harmless and    a defendant is entitled to a charge on the right of self-defense
overrule this issue.                                               against multiple assailants if there is evidence, viewed from
                                                                   the accused's standpoint, that he was in danger of an unlawful
                                                                   attack or a threatened attack at the hands of more than one
4. Instruction on “Threats as Justifiable Force”
                                                                   assailant.” Id. (internal quotations omitted).
 *10 Elizondo also argues that it was error to fail to include
an instruction on “threats as justifiable force.” Texas Penal
                                                                   Again, however, Elizondo did not ask for this instruction.
Code section 9.04 provides that:
                                                                   Although the evidence at trial raised this issue, with various
             the threat of force is justified when                 witnesses testifying that Elizondo and his brother Juan fought
             the use of force is justified by this                 with at least three Punto 3 employees, the trial court did
             chapter. For purposes of this section,                not have a sua sponte duty to include a multiple assailant
             a threat to cause death or serious



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Elizondo v. State, Not Reported in S.W.3d (2014)


                                                                         Having overruled all of Elizondo's issues, we affirm the trial
instruction when it was not requested. See Posey, 966 S.W.2d
                                                                         court's judgment.
at 62. We overrule this issue.



                     IV. CONCLUSION



Footnotes
1      Literal translation: “you all will see.”
2      Elizondo's counsel failed to object to the omissions in this instruction.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   8
