                                 MEMORANDUM OPINION
                                        No. 04-10-00387-CR

                                       Erik Vasquez TREJO,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR5084
                       Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 6, 2011

AFFIRMED

           Appellant Erik Vasquez Trejo appeals his conviction for the murder of Freddy Carvajal.

Trejo raises four issues: (1) the evidence was legally insufficient to support his conviction

because he conclusively established self-defense; (2) the trial court erred by instructing the jury

that Trejo’s defensive theory was nullified if he provoked the difficulty; (3) under the rule of

optional completeness, the trial court abused its discretion in excluding his video-recorded

statements to the police; and (4) the State impermissibly commented on his invocation of his
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privilege against self-incrimination during closing argument.     We affirm the trial court’s

judgment.

                                        BACKGROUND

       During the early morning hours of May 24, 2007, Trejo shot Eddie Carvajal twice in the

back of the head from the backseat of Trejo’s white Cadillac. Earlier in the evening, Carvajal

and his girlfriend, Melinda Autobee, were driving in Autobee’s Mustang between Floresville and

San Antonio trying to find methamphetamine for Carvajal’s cousin Jesse, who had given

Carvajal $1,500 to buy the drugs. Carvajal gave the money to another connection, Henry

Cadena, who gave the money to Trejo to make the purchase. Trejo and his purported drug

connection, Angelo Gaona, conspired to steal the $1,500 and not deliver any drugs.

       Later in the evening, Carvajal, Autobee, and Cadena met up with Trejo and Trejo’s friend

Chris McDonald at a car wash in San Antonio.         Carvajal got out of Autobee’s Mustang,

approached Trejo, and told him that he (Carvajal) would need Trejo to either give him his

Cadillac or accompany him back to Jesse to explain what had happened to the money. Carvajal

volunteered to drive Trejo in his Cadillac to go see Jesse. Trejo and McDonald got in the

backseat of the Cadillac, and Autobee and Cadena followed in the Mustang. After a few minutes

of driving on the highway, Carvajal exited, departing from the route to Jesse’s house in

Floresville.

       The two cars stopped on a nearby road. Autobee got out of the Mustang and walked

toward the Cadillac. McDonald got out of the backseat of the Cadillac and took off running. As

Autobee approached the driver’s side of the Cadillac, Carvajal peeled out backward and sped

away. Because the Mustang was almost out of gas, Autobee and Cadena stopped at a nearby gas

station. While getting gas, Autobee received a call from Carvajal. Autobee heard Carvajal say,



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“Melinda, I love you,” and a scuffling sound before the phone went silent. Autobee called back,

but Carvajal’s phone went directly to voicemail.

       The next morning, another motorist found Carvajal’s body in the middle of a street in San

Antonio. Trejo was indicted for the murder of Carvajal and, after a jury trial, was convicted. He

appeals his conviction.

                                       LEGAL SUFFICIENCY

        Trejo raised self-defense at trial. “A jury verdict of guilty is an implicit finding rejecting

the defendant’s self-defense theory.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App.

1991). Because the jury in this case rendered a guilty verdict, it implicitly rejected Trejo’s self-

defense theory. See id. Trejo argues that the evidence at trial was legally insufficient to support

this implicit finding because he conclusively established that he killed Carvajal in self-defense.

A. Standard of Review

       In resolving a legal sufficiency challenge to a jury’s implicit rejection of a defendant’s

claim of self-defense, we must determine whether “any rational trier of fact would have found

the essential elements of murder beyond a reasonable doubt and also would have found against

appellant on the self-defense issue beyond a reasonable doubt.” Id.; see also Miranda v. State,

No. 04-10-00015-CR, 2011 WL 1496539, at *5 (Tex. App.—San Antonio Apr. 20, 2011, no pet.

h.). We “view[] all the evidence in the light most favorable to the prosecution.” Saxton, 804

S.W.2d at 914; see also Miranda, 2011 WL 1496539, at *5. “Defensive evidence which is

merely consistent with the physical evidence at the scene of the alleged offense will not render

the State’s evidence insufficient since the credibility determination of such evidence is solely

within the jury’s province and the jury is free to accept or reject the defensive evidence.”

Saxton, 804 S.W.2d at 914; see also Miranda, 2011 WL 1496539, at *5.



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B. Self-Defense

        Under the law applicable to this case, 1 a person is justified in using deadly force in self-

defense if: (1) a reasonable person in his situation would not retreat; and (2) he reasonably

believes the deadly force is immediately necessary to protect himself against the other’s use or

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

aggravated kidnapping or robbery. See TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a) (West 2003);

Vasquez v. State, 2 S.W.3d 355, 358 (Tex. App.—San Antonio 1999, pet. ref’d). Trejo did not

testify at trial to any of the events that occurred after McDonald jumped out of the Cadillac. He

claims that the evidence of the events leading up to Carvajal’s speeding away with him in the

backseat conclusively establishes both the reasonable belief that deadly force was immediately

necessary and that his failure to retreat was reasonable.

        We disagree. Autobee testified that at various points throughout the night, Carvajal did

not have or obtain a gun. She also testified that Carvajal did not use any force or threaten Trejo

when asking for his Cadillac or his company.                  Similarly, there is no evidence that Trejo

disavowed his responsibility for losing the $1,500 or objected when Carvajal asked Trejo for his

Cadillac or for Trejo to go explain to Jesse what had happened. Moreover, Gaona testified that

he and Trejo conspired to make off with the drug money. Although Trejo asserts that Autobee

testified that there was no time for Trejo to get out of the Cadillac, Autobee never testified to

this. Rather, she testified that McDonald was able to get out of the driver’s side of the backseat

and take off running before she approached the Cadillac and that, when she approached the

driver’s side of the Cadillac and Carvajal peeled out, Trejo was still sitting in the passenger’s

side of the backseat.


1
 The parties agree that the 2005 version of the Texas Penal Code, which required the defendant to not be reasonably
able to retreat, is the applicable law governing this case.

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       A rational jury could have found beyond a reasonable doubt from this evidence, viewed

in the light most favorable to the prosecution, that it would have been reasonable for Trejo to get

out of the Cadillac. A rational jury also could have found that Trejo did not reasonably believe

that shooting Carvajal was immediately necessary to prevent his robbery or kidnapping. See

TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a); Saxton, 804 S.W.2d at 914. We therefore overrule

Trejo’s legal sufficiency challenge.

                                        JURY INSTRUCTION

       Trejo argues that the trial court improperly submitted a jury instruction, over his

objection, regarding his provocation of Carvajal because there was no evidence to support the

instruction. He argues that, as a result, the trial court “stripped him of his defense.”

A. Standard of Review

       A trial court should give an instruction on provoking the difficulty only if “a rational jury

could find every element of provocation beyond a reasonable doubt.” Smith v. State, 965 S.W.2d

509, 514 (Tex. Crim. App. 1998). In viewing the evidence in the light most favorable to the trial

court’s decision to include the instruction, we must determine whether “there was sufficient

evidence from which a rational jury could have found provocation beyond a reasonable doubt.”

Id.

B. Provoking the Difficulty

       A defendant’s use of force in self-defense is not justified if the defendant provoked the

victim’s use of unlawful force. See TEX. PENAL CODE ANN. § 9.31(b)(4) (West 2003). A

provocation instruction is necessary if a rational jury could find beyond a reasonable doubt that:

(1) the defendant’s acts provoked the attack on him; (2) the acts were reasonably calculated to

provoke the attack; and (3) the defendant acted with the purpose and intent that the victim’s



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response attack give him “a pretext for inflicting harm upon the other.” See Smith, 965 S.W.2d

at 513. Each element is a fact question and may be established by circumstantial evidence. Id. at

513–19.

       Trejo contends that he shot Carvajal in response to Carvajal’s alleged attempted robbery

or kidnapping. Autobee testified at trial, and Trejo does not dispute, that Trejo’s loss or theft of

the $1,500 caused Carvajal to ask for Trejo’s Cadillac or for Trejo to accompany him to see

Jesse. Gaona testified that he and Trejo conspired to steal the drug money and faked Gaona’s

robbery to convince Carvajal that Trejo no longer had the money. Ernest Martinez, a man whom

Trejo had called after he shot Carvajal, testified that Trejo told him that he (Trejo) had shot

Carvajal and that “it felt good” to kill him.

       From this evidence, a rational jury could have found beyond a reasonable doubt that

Trejo’s theft of the drug money and telling Carvajal that the drug money had been stolen was

reasonably likely to cause and did cause Carvajal to have Trejo accompany him to see Jesse, and

that Trejo consented to accompanying Carvajal to have a pretext for harming him to further his

attempt to steal the drug money.        Thus, the trial court properly included the provocation

instruction, and we accordingly overrule this issue. See id.

                            VIDEOS OF TREJO’S POLICE STATEMENTS

       Trejo also contends that the trial court erred in excluding video recordings of his police

statement. He argues that although the videos contained hearsay, they were admissible under the

rule of optional completeness.

A. Standard of Review

       We review a trial court’s ruling excluding evidence for an abuse of discretion.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its



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discretion when its ruling lies outside the zone of reasonable disagreement. Cameron v. State,

241 S.W.3d 15, 19 (Tex. Crim. App. 2007).

B. Rule of Optional Completeness

        If a party introduces part of a recorded statement into evidence, then “the whole on the

same subject may be inquired into by the other, and any other act, declaration, writing or

recorded statement which is necessary to make it fully understood or to explain the same may

also be given in evidence.” TEX. R. EVID. 107. This rule sets forth two requirements: (1) some

part of the evidence sought to be admitted in whole must be actually admitted by the opposing

party; and (2) the proponent of the evidence must show that the remainder of the evidence

offered is necessary to fully understand or explain the matter. Mendiola v. State, 61 S.W.3d 541,

545 (Tex. App.—San Antonio 2001, no pet.) (citing Washington v. State, 856 S.W.2d 184, 186

(Tex. Crim. App. 1993)); Araiza v. State, 929 S.W.2d 552, 556 (Tex. App.—San Antonio 1996,

pet. ref’d).

        Trejo argues that the trial court should have admitted the videos because Detective

Manuel Nunoz, who interviewed Trejo twice about the events leading up to Carvajal’s death,

testified that Trejo was nervous and evasive during the first interview but not during the second

interview. However, the State did not admit any part of either video-recorded statement, and

Detective Nunoz did not testify to any particular statements that Trejo made during either

interview.     Moreover, Detective Nunoz’s testimony as to Trejo’s mannerisms during each

interview was elicited by counsel for Trejo during cross-examination; it was not elicited by the

State. Thus, the rule of optional completeness was not invoked. See Araiza, 929 S.W.2d at 556

(explaining that a mere reference to a document does not invoke the rule of optional




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completeness). Because the trial court’s ruling excluding the video recordings was not an abuse

of discretion, we overrule this issue.

                                         MOTION FOR MISTRIAL

       Finally, Trejo contends that the State impermissibly commented on his privilege against

self-incrimination during closing argument.      Specifically, Trejo complains of the following

statement by the prosecutor:

       The other thing to keep in mind, the Defendant knew that he got his car back and
       items of evidence were removed. He knew where the body was. He knew his cell
       phone records tied him to the body. He knew all these things. Didn’t want to
       cooperate with the police. What would a reasonable person do? What did the
       other witnesses do? They all came forward. And he made a big deal about
       Melinda and Jesse not wanting to come in, hey, but they talked and they talked
       pretty close to the day after the murder. Every witness was cooperating, except
       one person.

The State counters that the prosecutor’s statements were directed at Trejo’s pre-arrest silence,

and, even if the comments were directed at Trejo’s post-arrest silence, the error was harmless.

A. Standard of Review

       We review a trial court’s denial of a motion for mistrial under an abuse of discretion

standard. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We may reverse only if

the trial court’s ruling is outside the zone of reasonable disagreement. Wead v. State, 129

S.W.3d 126, 129 (Tex. Crim. App. 2004).

B. Comment on Trejo’s Pre-Arrest Silence

       A prosecutor’s comment in closing arguments on the defendant’s failure to testify

“violates the privilege against self-incrimination and the freedom from being compelled to testify

contained in the Fifth Amendment of the United States Constitution and Article I, § 10, of the

Texas Constitution.” Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). If the

State improperly comments on the defendant’s failure to testify, we analyze: (1) the severity of

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the misconduct; (2) the efficacy of curative measures; and (3) the certainty of whether the

defendant would have been convicted without the misconduct. Martinez v. State, 276 S.W.3d

75, 79 (Tex. App.—San Antonio 2008, pet. ref’d). Relevant to our inquiry is whether the

prosecutor intended her statements to direct the jury’s attention to the defendant’s failure to

testify. Id. at 78–79. Except in the most “blatant” instances, the potential harm caused by a

comment regarding a defendant’s failure to testify ordinarily is remedied by an instruction to

disregard. Moore v. State, 999 S.W.2d 385, 405–06 (Tex. Crim. App. 1999).

       During closing arguments, the State did not directly comment on Trejo’s failure to testify.

Rather, the State referred to Trejo’s initial unwillingness (prior to his arrest) to talk with the

police about the events on the night Trejo shot Carvajal. When Trejo objected to the State’s

comment that Trejo initially refused to cooperate with the investigation, the prosecutor

responded that he made no direct comment on Trejo’s refusal to testify, and that any suggestion

to the contrary was unintentional. The trial court sustained Trejo’s objection to the prosecutor’s

argument and immediately instructed the jury to disregard the prosecutor’s comment. Even

assuming it was improper for the State to comment on Trejo’s pre-arrest lack of cooperation, we

must determine “whether an instruction to disregard would have cured any harm or prejudice

resulting from the improper remark.” Martinez, 276 S.W.3d at 79; see Waldo v. State, 746

S.W.2d 750, 755 (Tex. Crim. App. 1988) (explaining that instruction to disregard can cure harm

caused by comment on pre-arrest silence).

       The alleged misconduct in this case was slight. The comments were made during closing

argument when the prosecutor was providing a summation of admitted evidence. The prosecutor

was pointing out the relative cooperation of other witnesses with the lack of assistance afforded

by Trejo who admitted to shooting Carvajal under a self-defense theory. Detective Nunoz



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testified, without any objection, that the first few times he attempted to contact Trejo, Trejo

avoided him and refused to give a statement. The prosecutor’s comment was brief and not

repeated. The comment did not demonstrate any “willful or calculated effort” on the State’s

behalf to deprive Trejo of a fair and impartial trial. Martinez, 276 S.W.3d at 79. The prosecutor

indicated that there was no intent to comment on the failure of Trejo to testify at trial, and the

trial court provided a curative instruction. Finally, as our previous review of the evidence

indicates, it is not likely that the verdict would have been different had the statement not been

made.

        Because the trial court’s curative instruction would have cured any harm resulting from

the prosecutor’s statement, the trial court did not abuse its discretion in denying the motion for

mistrial. We, therefore, overrule Trejo’s final issue.

                                           CONCLUSION

        Finding no reversible error, we affirm the judgment of the trial court.

                                                   Rebecca Simmons, Justice

DO NOT PUBLISH




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