AFFIRM; Opinion Filed November 26, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00836-CR

                         JESUS ANTHONY RODRIGUEZ, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 265th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F16-75239-R

                             MEMORANDUM OPINION
                           Before Justices Lang, Fillmore, and Schenck
                                   Opinion by Justice Schenck
       Jesus Anthony Rodriguez appeals his conviction for murder.            In his first issue, he

challenges the sufficiency of the evidence to disprove his claim he acted in self-defense. In his

second and third issues, he challenges the sufficiency of the evidence to support the jury’s refusal

to find that he acted in sudden passion. We affirm the trial court’s judgment. Because all issues

are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       R.H. was the oldest of seven siblings of whom he was very protective. He was also close

to his mother Claudia Corona. When R.H. was 15 years old, his girlfriend became pregnant, he

dropped out of school, and he went to work laying bricks and cement to help support the family.
Corona had separated from R.H.’s father years before, and the father of her younger two children

had died. R.H. told his mother he would help to support her and his siblings.

       Appellant began dating Corona in October 2015. In January 2016, appellant and his

brother Andres Perez came to live with Corona, 16-year-old R.H., and Corona’s other children.

       On the evening of February 5, 2016, Corona went to take a shower, and appellant

approached her, asking for a bag of cocaine. Corona responded that she had found the bag in

appellant’s drawer and flushed it because she did not want it in the house with her children present.

Appellant became angry with Corona and pushed her. Corona offered to pay for the cocaine after

she got out of the shower. She got dressed and followed appellant outside to the backyard where

she gave him the money. She then went back inside the house. Appellant followed her to her

bedroom where they got into an argument that led to a physical altercation.

       J.H., R.H.’s 14-year old brother, had been playing video games with his younger two

brothers when he heard noises from Corona’s room. He walked in and saw appellant hitting his

mother. J.H. told appellant not to hit his mother, at which point appellant and J.H. began hitting

each other. R.H. then walked into Corona’s room, told appellant not to hit his brother, and began

hitting appellant. During this time, Corona was screaming. Perez heard her screams and went

inside to find R.H. and J.H. hitting appellant on the floor of Corona’s bedroom. Perez helped

Corona break up the fight and then helped R.H. and J.H. escort appellant out of the house. As the

group reached the door to the backyard, appellant pulled out a gun and pointed it at J.H.’s head.

R.H. hit appellant’s arm to move the gun away from his brother’s head. Appellant put the gun

away as J.H., R.H., and Corona pushed him out the back door. No one exited the house with him,

and J.H. waited for appellant to walk away. Instead, appellant remained in the backyard and called

his sister on the phone.




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       Corona went to check on her other children. R.H. went into Corona’s room, got all of

appellant’s belongings, and threw them out the back door, telling appellant, “You’re leaving. I

don’t want you even close to my mom anymore.” Soon after, Corona returned and R.H. was able

to see his mother’s face, which was bruised and bloodied from her earlier altercation with

appellant. R.H. exclaimed to her, “Look what he did to your face,” ran back outside, and began to

fight with appellant in the back yard. J.H. ran out to help R.H. and began hitting and kicking

appellant. Perez and Corona went outside and broke up the fight, which had lasted approximately

two minutes.

       Corona told her two sons to leave appellant alone so he could leave. Appellant began to

walk across the backyard to the unlocked back gate. When he was about four or five feet away

from R.H., appellant turned and pulled his gun from his waist. He quickly fired two shots into the

air and a third into R.H.’s head. Appellant took off and ran out the back gate. R.H. was still

breathing, so J.H. and Perez took R.H. to a hospital where R.H. was pronounced dead.

       Appellant was indicted with one count of murder. His case proceeded to a trial before a

jury who found appellant guilty as charged in the indictment and assessed his punishment at 32

years’ confinement. Appellant filed a motion requesting a new trial, which the trial court denied.

Appellant filed this appeal.

                                          DISCUSSION

I.     Self-Defense

       In his first issue, appellant urges that the evidence was insufficient to disprove his claim

that he shot R.H. in self-defense.

       Self-defense is a defense to prosecution under section 2.03 of the penal code. See TEX.

PENAL CODE ANN. §§ 2.03, 9.02, 9.31, 9.32. A defendant has the burden of producing some

evidence to support a claim of self-defense. London v. State, 325 S.W.3d 197, 202 (Tex. App.—


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Dallas 2008, pet. ref’d). The State has the burden of persuasion in disproving self-defense. Id.

This burden does not require the State to produce evidence refuting the self-defense claim; rather,

the burden requires the State to prove its case beyond a reasonable doubt. Id. Self-defense is an

issue of fact to be determined by the jury. Id. A jury verdict of guilty is an implicit finding

rejecting the defendant’s self-defense theory. Id.

        Because the State bears the burden of persuasion to disprove self-defense by establishing

its case beyond a reasonable doubt, we review both legal and factual sufficiency challenges to the

jury’s rejection of such a defense under the Jackson v. Virginia standard. Smith v. State, 355

S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Under this standard, evidence

is insufficient to support a conviction if, considering all the evidence in the record in the light most

favorable to the verdict, no rational factfinder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. Id. Viewed in the light most favorable

to the verdict, the evidence is insufficient under this standard when either: (1) the record contains

no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2)

the evidence conclusively establishes a reasonable doubt. Id. An appellate court may not re-

evaluate the weight and credibility of the record evidence and thereby substitute its own judgment

for that of the factfinder. Id.

        A person commits murder if he intentionally or knowingly causes the death of an

individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human

life that causes the death of an individual. See PENAL §§ 19.02(b)(1), 19.02(b)(2). The penal code,

however, provides that a person is justified in using force against another when and to the degree

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

other’s use or attempted use of unlawful force. Id. § 9.31(a). Deadly force in self-defense is

justified when a person reasonably believes the force is immediately necessary to protect the actor

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against the other’s use or attempted use of unlawful deadly force or to prevent the other’s imminent

commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery,

or aggravated robbery. Id. § 9.32.

       A “reasonable belief” is defined as one that would be held by “an ordinary and prudent

man in the same circumstances as the actor.” Id. § 1.07(a)(42). “Deadly force” is force “intended

or known by the actor to cause, or in the manner of its use or intended use is capable of causing,

death or serious bodily injury.” Id. § 9.01(3). “Serious bodily injury” is an injury that creates a

“substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46).

       The actor’s belief that the force or deadly force was “immediately necessary” is presumed

to be reasonable if the actor (1) knew or had reason to believe that the person against whom the

force was used was committing or attempting to commit murder; (2) did not provoke the person

against whom the force was used; and (3) was not otherwise engaged in criminal activity. See id.

§§ 9.31(a)(1)(C), (2), (3); 9.31(b)(1)(C),(2),(3). The use of force against another is not justified in

response to verbal provocation alone. See id. § 9.31(b)(1).

       Appellant urges that the record contains the following evidence to support a finding that

he shot R.H. in self-defense: R.H. had been using cocaine; R.H. and his brother J.H. had

simultaneously attacked appellant; R.H. was enraged at appellant and made death threats to

appellant; both R.H. and Corona were praying to the Saint of Death; appellant understood Corona’s

brothers were on their way to the house; appellant reasonably believed R.H. had a gun and was

running towards him; and R.H. continued to run at appellant after he fired two warning shots.

Appellant urges that he was entitled to the presumption that his use of deadly force was

immediately necessary because he knew or had reason to believe that R.H. was attempting to

commit murder based on the evidence that R.H. threatened to kill appellant, ran back into the house

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where appellant knew R.H. kept a weapon, and ran back out of the house appearing to carry

something. He maintains that he did not provoke R.H.; instead, he urges, R.H. provoked appellant.

According to appellant, he was not otherwise engaged in criminal activity by unlawfully carrying

a weapon because there was no evidence that he did not have a concealed handgun license. See

PENAL §§ 9.31(a)(3), 46.02, 46.15(b)(6).

       Appellant testified that R.H. told him to “get the hell out of here,” meaning to leave their

house, but that he remained in the back yard to make a phone call to get a relative to pick him up

and drive him away. After the phone call ended, R.H. and J.H. came back out of the house to fight

with appellant again. Perez and Corona then pulled R.H. and J.H. away from appellant. Appellant

backed away, saying he was going to leave and that he would come back the next day for his

belongings. He testified that R.H. then ran back into the house and returned with some of

appellant’s clothes and threw them out the door and, using “bad words,” told appellant to leave.

According to appellant, he remained outside with Corona and his brother and J.H. arguing about

what was going on when R.H. came back out with another pile of clothes. Appellant stated that at

that point, R.H. told appellant he was going to kill appellant and ran inside the house. Appellant

saw R.H. run back out of the house with something in his hand, he claimed, resembled a handgun.

He testified he knew R.H. possessed a handgun because he had bought the gun with Corona for

R.H., and the trial court admitted photographs of R.H. with a gun. Seeing R.H. run towards him

with what he believed to be a handgun, appellant fired what he testified were two warning shots.

According to appellant, R.H. continued to run towards him for four or five seconds after the first

two shots, so he shot R.H.

       By his own testimony, appellant admits that he intentionally shot R.H. All the other

witnesses, including appellant’s brother, testified that appellant shot R.H. in the head. Thus, the

evidence establishes the elements of murder. See PENAL §§ 19.02(b)(1), 19.02(b)(2).

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           Here, where the evidence relating to the issue of self-defense is largely comprised of

witness testimony, the jury’s decision to reject appellant’s defensive claims ultimately hinges on

the credibility of the witnesses. As the factfinder, the jury is entitled to judge the credibility of

witnesses, and can choose to believe all, some or none of the testimony presented by the parties.

See Smith, 355 S.W.3d at 146. The only evidence in the record that a jury could rely on that

appellant knew or had reason to believe that at that time R.H. was holding a gun was appellant’s

testimony. The evidence in the record also includes the testimony of the State’s witnesses, all of

whom undermined appellant’s defensive claims. Perez, appellant’s brother, testified that R.H. ran

towards appellant and threatened to kill appellant, but that R.H. stopped running and became quiet

after appellant fired the first two shots into the air. None of the witnesses observed R.H. to have

any kind of weapon during the evening in question. The jury heard from J.H., Corona, and M.H.

(R.H.’s sister) that just before appellant shot R.H., appellant was walking away from the house

towards the back gate while R.H. remained standing still. Corona testified she prayed to the Saint

of Death to help calm herself, and she did tell appellant her brothers were on their way to the house

to beat him up, so he had better leave.1 The jury chose not to believe appellant had acted in self-

defense, and appellant’s testimony, in light of the other evidence presented at trial, does not render

the evidence in this case insufficient to support the jury’s verdict. See Smith, 355 S.W.3d at 146.

           We overrule appellant’s first issue.

II.        Sudden Passion

           In his second and third issues, appellant challenges the legal and factual sufficiency of the

evidence supporting the jury’s findings against his invocation of sudden passion during the

punishment phase of trial.


      1
        We note that multiple witnesses, including appellant, testified both Corona and R.H. told appellant to leave Corona’s house, from which a
jury could find that appellant did not have a right to present at the location where the force was used and thus could have considered that appellant
failed to retreat even after R.H. had threatened to kill him and ran back inside the house where appellant believed R.H. kept a gun. See PENAL §
9.31(d), (f).

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       At the punishment stage of a trial for murder, the defendant may raise the issue as to

whether he caused the death under the immediate influence of sudden passion arising from an

adequate cause. PENAL § 19.02(d). If the defendant proves the issue in the affirmative by a

preponderance of the evidence, the offense is reduced from a first-degree to a second-degree

felony. See id. “Sudden passion” means passion directly caused by and arising out of provocation

by the individual killed or another acting with the person killed which passion arises at the time of

the offense and is not solely the result of former provocation. Id. § 19.02(a)(2). “Adequate cause”

means a cause that would commonly produce a degree of anger, rage, resentment, or terror in a

person of ordinary temper, sufficient to render the mind incapable of cool reflection. Id. §

19.02(a)(1).

       In reviewing an appellant’s legal sufficiency challenge to evidence supporting an adverse

finding on which he had the burden of proof, such as sudden passion, we apply the legal-

sufficiency standard utilized in civil cases. See Matlock v. State, 392 S.W.3d 662, 667 & n.14

(Tex. Crim. App. 2013). We first search the record for evidence favorable to the finding,

disregarding all contrary evidence unless a reasonable factfinder could not. Id. at 669. If we find

no evidence supporting the finding, we then determine whether the contrary was established as a

matter of law. Id.

       In examining the record under the first prong of the civil legal sufficiency standard, we

conclude that some evidence exists to support the jury’s negative finding on the issue of sudden

passion. As discussed above, multiple witnesses testified that just before appellant shot R.H.,

appellant was walking away from the house with no one chasing him and R.H. was standing still.

Even if R.H. had been yelling at appellant, such action would not rise to the level of adequate

cause. See McKinney v. State, 179 S.W.3d 565, 570 (Tex. Crim. App. 2005) (yelling and pushing

do not rise to the level of adequate cause). Further, appellant testified that he had the presence of

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mind to fire two warning shots before waiting four or five seconds to fire a third shot at R.H.’s

head. The record satisfies the first prong of civil legal sufficiency standard of review because

some evidence exists that appellant was not under the immediate influence of sudden passion

arising from an adequate cause when he shot R.H. Therefore, we need not address the second

prong. See Moncivais v. State, 425 S.W.3d 403, 408 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d).

          We overrule appellant’s second issue and now turn to address his third issue challenging

the factual sufficiency of the jury’s finding against sudden passion.

          When we review an issue on which the defendant has the burden of proof by a

preponderance of the evidence, we consider all the evidence neutrally to determine if the judgment

is so against the great weight and preponderance of the evidence as to be manifestly unjust.

Moncivais, 425 S.W.3d at 408. We may not, however, intrude on the factfinder’s role as the sole

judge of the weight and credibility of the witnesses’ testimony. Id. at 409.

          Appellant largely relies on his own testimony that he was very afraid in the backyard and

that he wanted to leave, but that every time he tried to leave, “they always tried to get closer.” He

also testified that R.H. was threatening to kill him and was running towards him with what

appellant believed to be a weapon. He testified that when he fired a final shot at R.H., he did so

because he believed R.H. was raising his hand to shoot appellant.

          As the sole judge of the weight and credibility of a witness’s testimony, the jury was

entitled to disbelieve appellant’s testimony. Id. at 409. As discussed above, the jury heard

evidence that appellant was walking away from the house and that R.H. was standing still before

appellant turned and fired two shots above R.H. and a third into R.H.’s head. Witnesses also

testified that appellant’s gun was the only weapon displayed during the fight. See McKinney, 179

S.W.3d at 570 (stating evidence that complainant did not have a gun and only yelled and pushed

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defendant supports finding that defendant was not acting under immediate influence of sudden

passion). While the jury could have decided otherwise, we cannot say based on this evidence that

the jury’s finding of no sudden passion is so against the great weight and preponderance of the

evidence as to be manifestly unjust. See Moncivais, 425 S.W.3d at 409.

       We overrule appellant’s third issue.

                                         CONCLUSION

       We affirm the judgment of the trial court.




                                                    /David J. Schenck/
                                                    DAVID J. SCHENCK
                                                    JUSTICE


DO NOT PUBLISH
TEX. R. APP. P. 47

170836F.U05




                                              –10–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 JESUS ANTHONY RODRIGUEZ,                           On Appeal from the 265th Judicial District
 Appellant                                          Court, Dallas County, Texas
                                                    Trial Court Cause No. F16-75239-R.
 No. 05-17-00836-CR        V.                       Opinion delivered by Justice Schenck,
                                                    Justices Lang and Fillmore participating.
 THE STATE OF TEXAS, Appellee

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


Judgment entered this 26th day of November, 2018.




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