                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-17-00026-CR


                            VICTOR ANTHONY CRUZ, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 372nd District Court
                                    Tarrant County, Texas
               Trial Court No. 1434356D, Honorable David Scott Wisch, Presiding

                                            August 1, 2017

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        Victor Anthony Cruz, appellant, appeals the trial court’s judgment by which he

was convicted of assault with a deadly weapon and sentenced to twenty-five years’

imprisonment. On appeal, he contends that he was entitled to a jury instruction on the

use of deadly force in defense of self. He maintains the trial court erred by refusing to

include such an instruction in its charge to the jury. We affirm as modified.1


        1
           Because this appeal was transferred from the Second Court of Appeals, we are obligated to
apply its precedent when available in the event of a conflict between the precedents of that court and this
court. See TEX. R. APP. P. 41.3.
         Background

         Rudy Cruz is appellant’s uncle. Rudy rented a home to appellant and appellant’s

girlfriend, Summer. After a couple of months, domestic discord between appellant and

Summer led to arguments and disputes about the couple’s continued presence in the

home. After Rudy, Rudy’s girlfriend, and Summer spent an afternoon together, the

family arguments intensified by phone and by text message, and Rudy decided to go

over to the home to talk to appellant. When Rudy arrived at the house, appellant was

waiting on the front porch. Rudy got out of his truck and moved toward the front gate,

and appellant stepped off the porch. Rudy asked appellant, “What the f— is going on

here?”     Appellant replied in kind by reiterating the question, and Rudy asked the

question a third time, “Really, what the f— is going on over here?”

         After the two men established that neither knew what was going on, appellant

drew his gun from his waistband and shot his uncle. The bullet passed through Rudy’s

hand, re-entered his body, and lodged in his liver. Rudy retreated to the far side of his

truck and pleaded with appellant to put the gun away.            As a neighbor summoned

emergency personnel, appellant left on foot and was arrested a short time later without

incident. He was convicted of aggravated assault with a deadly weapon and sentenced

to twenty-five years’ imprisonment. He timely appealed and now presents us the issue

concerning the trial court’s refusal to instruct the jury on self-defense.

         Applicable Law

         When reviewing jury charge error, we first determine if error occurred and, if so,

whether it harmed the appellant. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

App. 2005) (en banc). Furthermore, one is entitled to an instruction on self-defense if



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evidence appears of record supporting the theory, irrespective of whether that “evidence

is weak or strong, unimpeached or contradicted, and regardless of what the trial court

may or may not think about the credibility of the defense.” See Hill v. State, 99 S.W.3d

248, 251 (Tex. App.—Fort Worth 2003, pet. ref’d).      Yet, if the evidence, as viewed in

the light most favorable to the defendant, does not support self-defense, an instruction

is not required. Trammell v. State, 287 S.W.3d 336, 341 (Tex. App.—Fort Worth 2009,

no pet.).

       Use of deadly force against another in self-defense is justified only when the

actor reasonably believes such force is immediately necessary to (1) protect the actor or

a third person from the other’s use or attempted use of deadly force, or (2) prevent the

other’s imminent commission of aggravated kidnapping, murder, sexual assault,

aggravated sexual assault, robbery, or aggravated robbery. TEX. PENAL CODE ANN.

§ 9.32(a)(2)(A), (B) (West 2011). “Deadly force” is “force that is 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) (West 2011).

       Analysis

       Appellant does not contest the evidence that he used deadly force when he shot

Rudy. Neither the record nor appellant suggests that Rudy was attempting to commit

one of the listed offenses in § 9.32(a)(2)(B). We, therefore, must determine whether

there is some evidence that appellant reasonably believed that shooting Rudy was

immediately necessary to protect himself from Rudy’s use or attempted use of deadly

force. See id. § 9.32(a)(2)(A).




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       The record reveals no evidence that Rudy had a weapon. Nor is there any

evidence that Rudy issued any verbal announcement of his intent to use deadly force

against appellant. And, though the evidence suggests that Rudy was angry at having to

deal with the family “drama,” it does not suggest that he made any aggressive motion

toward appellant. Indeed, according to accounts from both Rudy and a witness to the

exchange, the two men were separated by up to seven feet. Between the two was also

a four-foot-high chain link fence. Further, appellant showed no signs of having been in

a struggle of any sort.       Even if Rudy’s initial inquiry could be characterized as

threatening in some way, verbal provocation will not justify use of force.       See id.

§ 9.31(b)(1) (West 2011). So, our review of the record yields no evidence that suggests

a rational factfinder could reasonably conclude appellant reasonably believed (when he

shot Rudy) that he needed to use deadly force to protect himself or others against

Rudy’s purported use or attempted use of deadly force.

       Appellant maintains that the trail of blood along the driver’s side of the truck

suggested the possibility that Rudy could have returned to his truck and stored a

weapon in there after the incident and points out that law enforcement never searched

Rudy’s truck for a weapon. What appellant fails to explain is how the victim’s running to

the truck after being shot could lead someone to believe that the victim was using or

attempting to use force immediately before being shot. The reasonable or logical nexus

escapes us, as it most likely did the trial court.

       Appellant also contends that the fact that the bullet entered the back of Rudy’s

hand and then passed through it to lodge in his liver is evidence of the possibility that

Rudy might have been reaching for or holding a weapon. Again, there was no evidence



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of a weapon on Rudy’s person before, during, or after the shooting. Nor have we been

cited to evidence suggesting that Rudy ever carried a weapon or had violent tendencies

of which appellant knew. Nor have we been cited to evidence that the location of

Rudy’s hand near his general gastrointestinal area when shot arose from a furtive

gesture. Nor have we been cited to evidence indicating that appellant even saw the

location of Rudy’s hand in the general vicinity of his gut. So, this possibility of Rudy

reaching for or holding a deadly weapon simply due to the location of his hand by his

stomach is simply unfounded speculation, and, more importantly, speculation is not

evidence. See Awde v. State, No. 07-16-00164-CR, 2017 Tex. App. LEXIS 4024, at

*11–12 (Tex. App.—Amarillo May 3, 2017, pet. filed) (mem. op., not designated for

publication).

       Even viewing the evidence in the light most favorable to appellant, we cannot say

that the evidence raised the issue of self-defense by deadly force. Thus, the trial court

did not err in refusing to instruct the jury on self-defense, and we overrule the issue.

       One other matter needs our attention.       Appellant was originally charged with

aggravated assault with a deadly weapon on a family member. See TEX. PENAL CODE

ANN. § 22.02(b)(1) (West 2011). The trial court’s judgment reflects that appellant was

convicted of that offense. However, the record reflects that, by agreement, the trial

court amended the indictment to delete the family-member allegation. Appellant asks

that we modify the trial court’s judgment to reflect that he actually was convicted of

aggravated assault with a deadly weapon under § 22.02(a). The State agrees with the

request. Because an appellate court has the authority to modify a judgment to speak

the truth, French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en banc);



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Ramirez v. State, No. 02-13-00540-CR, 2015 Tex. App. LEXIS 8257, at *24 (Tex.

App.—Fort Worth Aug. 6, 2015, pet. ref’d) (mem. op., not designated for publication),

and appellant was not convicted of aggravated assault upon a family member with a

deadly weapon, we hereby modify the trial court’s judgment to reflect he was convicted

only of aggravated assault with a deadly weapon.        See TEX. PENAL CODE ANN.

§ 22.02(a)(2). The judgment is affirmed as modified.




                                                           Brian Quinn
                                                           Chief Justice



Do not publish.




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