                            NUMBER 13-11-00185-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


MARTIN OBREGON,                                                                    Appellant,

                                                v.

THE STATE OF TEXAS,                                                                Appellee.


                     On appeal from the 183rd District Court
                           of Harris County, Texas.


                             MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Longoria
                Memorandum Opinion by Justice Rodriguez
       Appellant Martin Obregon was charged with the murder of Jorge Medrano.1 See

TEX. PENAL CODE ANN. § 19.02 (West 2011). Obregon pleaded “not guilty” to the charge.


       1
          This case is before the Court on transfer from the Fourteenth Court of Appeals in Houston
pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).
After a jury trial, Obregon was found guilty of the lesser-included offense of manslaughter,

a second-degree felony.           See id. § 19.04 (West 2011).              The trial court assessed

punishment at fifteen years’ confinement in the Texas Department of Criminal

Justice—Institutional Division.         By five issues which we have renumbered as three,

Obregon contends that (1) the evidence was sufficient to prove self-defense; (2) the trial

court erred in failing to instruct the jury on the law of self-defense against multiple

assailants and in instructing the jury incorrectly on the meaning of “beyond a reasonable

doubt”; and (3) during the State’s closing argument, the prosecutor misstated the law of

self-defense, the trial court erred in sustaining the prosecutor’s objection to Obregon’s

statement on defense burdens, and the prosecutor’s arguments and the trial court’s

comments diminished the presumption of innocence. We affirm.

                                         I.      BACKGROUND

        The testimony at trial established that two groups of men exchanged words in front

of homes where some of the men lived and others were visiting; Obregon was in one

group, and Jorge Medrano and his brother, Artemio Medrano, were in the other.2 After

the men exchanged words, Obregon and the Medrano brothers fought each other in the

street. Then someone arrived with a gun, and the Medranos headed to their truck.

Obregon and two other defense witnesses testified that before the Medrano brothers ran

to the truck, one of them said that they were going to get their guns.

        As the Medranos drove away, Obregon, who had grabbed the gun, aimed it at the

truck, and fired a single shot. The bullet struck Jorge in the back of his head and,
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
according to the medical examiner’s report, caused his death. Obregon fled to Mexico.

United States Marshals arrested him six or seven months later.

                           II.     SUFFICIENCY OF THE EVIDENCE

       By his first issue, Obregon contends that the evidence was sufficient to prove

self-defense and to entitle him to an acquittal. The State responds that this issue lacks

merit because any rational jury could have found against Obregon on the self-defense

issue. We agree with the State.

A.     Applicable Law and Standard of Review

       On a self-defense claim, the defendant has the burden of production and must

bring forth some evidence to support the particular defense. Zuliani v. State, 97 S.W.3d

589, 594 (Tex. Crim. App. 2003). Once the defense is raised, the State bears the burden

of persuasion to disprove the defense; however, such a burden requires only that the

State prove its case beyond a reasonable doubt. Id. The State is not required to

produce additional evidence rebutting self-defense. Id. The issue of self-defense is a

fact issue the jury determines, and the jury is free to accept or reject any defensive

evidence on the issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991) (en

banc). When a jury finds the defendant guilty, there is an implicit finding against the

defensive theory. Zuliani, 97 S.W.3d at 594.

       Because the State bears the ultimate burden of persuasion to disprove the

defensive theories, we review the sufficiency of the evidence under the Jackson v.

Virginia standard. Smith v. State, 355 S.W.3d 138, 144–45 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d) (applying the Jackson v. Virginia standard to a jury’s rejection of a

self-defense claim) (citing Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)
                                              3
(plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307, 319 (1979))); Saxton, 804

S.W.2d at 914 (distinguishing the standard of review with regard to defensive claims in

which the State bears the burden of persuasion and affirmative defenses in which the

defendant bears the burden of proof). In reviewing a legal sufficiency challenge on the

issue of self-defense, a reviewing court views the evidence in the light most favorable to

the verdict to see if any rational trier of fact could have found (1) the essential elements of

manslaughter beyond a reasonable doubt, and (2) against appellant on the self-defense

issue beyond a reasonable doubt. See Hernandez v. State, 309 S.W.3d 661, 665 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Saxton, 804 S.W.2d at 914).

       In our review, we defer to the jury's credibility and weight determinations because

the jury is the sole judge of the witnesses' credibility and the weight to be given their

testimony. See Jackson, 443 U.S. at 326; Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991) (en banc). The jury “can choose to believe all, some, or none of

the testimony presented by the parties.”          Chambers, 805 S.W.2d at 461.            The

statements of the defendant and his witnesses do not conclusively prove a claim of

self-defense. See Denman v. State, 193 S.W. 3d 129, 132–33 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref'd) (finding that the evidence was sufficient to support a conviction for

aggravated assault under the Jackson v. Virginia standard despite defendant's claim of

self-defense, which was based on the testimony of the defendant and other witnesses

who stated that the complainant had assaulted or threatened defendant on prior

occasions).

       We measure the sufficiency of the evidence against the hypothetically correct jury

charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v.
                                              4
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A person commits manslaughter if

he "recklessly causes the death of an individual." TEX. PENAL CODE ANN. § 19.04(a).

      A person acts recklessly, or is reckless, with respect to circumstances
      surrounding his conduct or the result of his conduct when he is aware of but
      consciously disregards a substantial and unjustifiable risk that the
      circumstances exist or the result will occur. The risk must be of such a
      nature and degree that its disregard constitutes a gross deviation from the
      standard of care that an ordinary person would exercise under all the
      circumstances as viewed from the actor's standpoint.

Id. § 6.03(c) (West 2011). In short, reckless conduct is the conscious disregard of the

risk created by the actor’s conduct. Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim.

App. 2007). 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." TEX. PENAL CODE ANN. § 9.31(a) (West 2011). 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) (West 2011).

B.    Discussion

      1.     Jury Found Essential         Elements     of   Manslaughter    Beyond     a
             Reasonable Doubt

      Obregon does not specifically challenge the first prong of Hernandez, that any

rational trier of fact could have found the essential elements of manslaughter beyond a

reasonable doubt. See 309 S.W.3d at 665. Rather, Obregon concedes that he “does

not dispute that he fired the weapon that resulted in the death of Jorge.” See TEX. PENAL

CODE ANN. §§ 6.03(c), 19.04(a); Williams, 235 S.W.3d at 751. And the evidence shows

that after the men fought, Obregon took a gun from someone and pointed it at the

                                           5
Medrano brothers as they were running toward their truck. They were driving away

when Obregon fired a shot at the truck. The bullet struck and killed Jorge.

       Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational trier of fact could have found that Obregon recklessly caused Jorge’s death, i.e.,

that he had a conscious disregard of the risk created by his conduct. See TEX. PENAL

CODE ANN. §§ 6.03(c), 19.04(a); Williams, 235 S.W.3d at 751. The first prong of the

Hernandez test has been satisfied. See Hernandez, 309 S.W.3d at 665; see also TEX.

R. APP. P. 47.1, 47.4.

       2.     Jury Found Against Obregon on Self-defense Issue Beyond
              Reasonable Doubt

       Obregon does maintain that he shot Jorge in self-defense and that the evidence

did not establish the second prong of Hernandez, that a rational trier of fact could have

found against him on the self-defense issue beyond a reasonable doubt.           See 309

S.W.3d at 665. Obregon contends that the evidence shows that his action in firing the

handgun was the result of the Medrano brothers’ attack on him and their threat to retrieve

guns. Obregon claims that he acted in self-defense from the apparent danger created by

the attack and by the Medranos’ alleged threat.

       The evidence shows that Obregon and the Medrano brothers, among others,

exchanged words about rival gang-related activities, specifically activities between

“Tango Blast” and “Houstone.”       A fistfight followed.    The fighting stopped when

someone arrived with a gun. Obregon, his girlfriend, and his sister testified that they

overheard the Medrano brothers say, “Let’s go get the guns,” as they began running

toward their vehicle. Houston Police Department Officer Sgt. Jeremiah Rubio testified

                                            6
that he was familiar with the Houstones and would take a threat by a Houstone member

seriously. Obregon’s brother-in-law Andy Flores, who was with Obregon, testified that

he was worried about “[the Medrano brothers] coming and messing up my house and

messing with my family. You got to take people seriously when people do things, you

know.” Yet neither Jorge nor his brother had a gun that day, and the fighting had

stopped. They were driving away when Obregon fired the shot that hit Jorge in the back

of his head and killed him.

       Viewing the evidence in the light most favorable to the verdict, a rational trier of fact

could have found against Obregon on the self-defense issue beyond a reasonable doubt.

See id. The jury chose not to believe that Obregon acted in self-defense because of the

earlier fight or the threat of retrieving guns. See Zuliani, 97 S.W.3d at 594. And the jury

may have chosen not to believe Obregon and the defense witnesses’ testimony regarding

the Medranos saying that they were going to retrieve their guns. See Chambers, 805

S.W.2d at 461. The jury could have concluded that Obregon was not justified in shooting

Jorge because he could not have reasonably believed that force was immediately

necessary to protect himself against the Medranos' use or attempted use of force. See

TEX. PENAL CODE ANN. § 9.31(a). Based on the other evidence, the jury could have

instead reasonably concluded that Obregon's conduct in firing a gun at the Medrano

brothers after the fighting had ended and as the brothers were driving away was

inconsistent with his defensive claims. See Cleveland v. State, 177 S.W.3d 374, 387

(Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (finding that jury could have reasonably

concluded that defendant's conduct in continuing to stab his wife's back as she lay

bleeding on floor was inconsistent with his claim of self-defense). The second prong of
                                               7
the Hernandez test has been satisfied. See Hernandez, 309 S.W.3d at 665.

         In sum, the jury rationally could have found that each element of the charged

offense was proven beyond a reasonable doubt and rationally could have rejected

Obregon's claims of self-defense. See Jackson, 443 U.S. at 319; Zuliani, 97 S.W.3d at

594; Saxton, 804 S.W.2d at 914; Hernandez, 309 S.W.3d at 665. Accordingly, we hold

that the evidence was sufficient to support Obregon's conviction for manslaughter. We

overrule Obregon’s first issue.

                                     III.   CHARGE ERROR

         By his second issue, Obregon contends that the trial court erred when it failed to

instruct the jury on the law of self-defense against multiple assailants. He also asserts

charge error because the trial court instructed the jury incorrectly on the meaning of

“beyond a reasonable doubt.”

A.       Self-Defense Against Multiple Assailants Instruction

         Obregon complains that although the trial court instructed the jury on self-defense,

apparent danger, and provoking the difficulty, the instructions were insufficient to advise

the jury properly on the law of self-defense against multiple assailants because the

application paragraph of the charge referred only to Jorge’s actions, rather than the

actions of both Jorge and his brother. Obregon appears to be arguing that the trial court

erred when it failed to sua sponte provide an instruction on self-defense against multiple

assailants because the issue was raised by the evidence.

         In analyzing a jury-charge issue, it must first be determined if error occurred and, if

so, whether harm was suffered. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005).     Defensive instructions must be requested by the defense in order for the
                                                8
instruction to be considered applicable to the case. Bennett v. State, 236 S.W.3d 241,

243 & n.9 (Tex. Crim. App. 2007). A trial court has no duty to sua sponte instruct the jury

on defensive issues, even when those issues are raised by the evidence. Vega v. State,

394 S.W.2d 514, 519 (Tex. Crim. App. 2013) (citing Posey v. State, 966 S.W.2d 57, 62

(Tex. Crim. App. 1998) (en banc)); Jackson v. State, 288 S.W.3d 60, 63 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d). So generally no error exists in the charge

when a defensive issue was not requested or otherwise brought to the court’s attention.

Posey, 966 S.W.2d at 61–62.

       Obregon relies on Taylor v. State as his supporting authority. See 332 S.W.3d

483, 486 (Tex. Crim. App. 2011). In Taylor, the court of criminal appeals set out the

following regarding the trial court’s sua sponte duty to instruct the jury:

       Code of Criminal Procedure Article 36.14 details the requirements and
       procedures for the delivery of the court's charge to the jury. TEX. CODE
       CRIM. PROC. ANN. art. 36.14. It states, "the judge shall . . . deliver to the
       jury . . . a written charge distinctly setting forth the law applicable to the
       case." Id. Article 36.14 also provides that, before the charge is read to
       the jury, "the defendant or his counsel shall have a reasonable time to
       examine the same and he shall present his objections." Id. However, the
       judge's duty to instruct the jury on the law applicable to the case exists even
       when defense counsel fails to object to inclusions or exclusions in the
       charge; this may require the judge to sua sponte provide the jury with the
       law applicable to the case, under Article 36.14. So, even in the absence of
       action on the part of Appellant's defense counsel, if an 8.07(b) instruction
       were the law applicable to this case, the trial judge was required, under
       Article 36.14, to include it in the jury charges. We must assess whether the
       jury charges set forth the law applicable to the case, and specifically,
       whether an 8.07(b) instruction belonged in the jury charges. [See TEX.
       PENAL CODE ANN. § 8.07(b) (West 2011) (providing "a person may not be
       prosecuted for or convicted of any offense committed before reaching 17
       years of age," with exceptions).].

Taylor, 332 S.W.3d at 486–87. But the Taylor Court also reminded the reader of the

following: “We have previously held that Article 36.14 imposes no duty on trial courts to
                                              9
sua sponte instruct the jury on unrequested defensive issues.              An unrequested

defensive issue is not the law applicable to the case.” Id. at 487 (citing Posey, 966

S.W.2d at 62). The law set out in Posey and noted in Taylor is the law that controls our

analysis in this case. See Posey, 966 S.W.2d at 61–62; see also Taylor, 332 S.W.3d at

486–87.

       Obregon stated that he had no objection to the trial court’s jury charge. There is

nothing in the record to indicate that he proffered a jury charge containing an instruction

for the defensive issue of self-defense against multiple assailants.          Because this

instruction is a defensive issue and because Obregon failed to request its submission, the

trial court had no sua sponte duty to place it in the charge. See Posey, 966 S.W.2d at

61–62; see also Taylor, 332 S.W.3d at 486–87.          “A defendant cannot complain on

appeal about the trial judge’s failure to include a defensive instruction that he did not

preserve by request or objection: he has procedurally defaulted any such complaint.”

Vega, 394 S.W.3d at 519 (citing Posey, 966 S.W.2d at 61). The trial court therefore did

not err in failing to instruct the jury on self-defense against multiple assailants. See Ngo,

175 S.W.3d at 743.

B.     Reasonable Doubt Instruction

       Obregon also asserts by his second issue that the “trial court erred in its

instructions to the jury on the law of ‘proof beyond a reasonable doubt.’”    To the extent

Obregon is complaining about a jury charge definition of “beyond a reasonable doubt,” we

find no such definition in the jury charge. The jury charge instructed the jury that they

were required to find all of the elements beyond reasonable doubt; however, the

instructions did not define “beyond a reasonable doubt.” And the trial court did not err in
                                             10
this regard. See Ngo, 175 S.W.3d at 743.

        If Obregon is complaining about the trial court’s comments regarding the definition

of “beyond a reasonable doubt” that it made to the jury during voir dire, he has failed to

preserve this issue for our review. Obregon made no objection to the court’s statements.

See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999) (holding that Fuentes

waived his complaint about the trial court’s explanation of the reasonable-doubt standard

during voir dire by failing to renew his objection when the trial court repeated its

explanation); see also TEX. R. APP. P. 33.1(a). Instead, Obregon made substantially

similar comments during his own voir dire of the jury panel. We conclude that Obregon

waived error to the extent his arguments are directed at the comments made by the trial

court during voir dire. See Fuentes, 991 S.W.2d at 273; see also TEX. R. APP. P. 33.1(a).

        We overrule Obregon’s second issue.

                                       IV.      CLOSING ARGUMENT

        In his third issue, Obregon claims that he was deprived of a fair trial when the

prosecutor allegedly misstated the law of self-defense during closing argument.

Obregon also argues that the trial court erred in sustaining the prosecutor’s objection to a

statement made by defense counsel during his final argument regarding self-defense and

the State’s burden.3 Finally, Obregon contends that the prosecutor and the trial court

diminished the presumption of innocence by arguments and comments made during final




        3
            The defense attempted to argue during final summation that the State had the burden of proving
the lack of self-defense. The trial court did not sustain the State’s objection, as Obregon claims. Instead,
it instructed Obregon’s counsel to “[r]ephrase,” and “[s]tay on the record, please.” The trial court also
instructed the jury that it would give the jury the law in the charge and that was the law to follow in this case.

                                                       11
argument.4

        The general rule is that a party must request the desired relief to preserve a

complaint on appeal. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) (en

banc). To preserve error for our review on these contentions, Obregon was required to

show that he made a timely objection to the trial court, stated the specific grounds for the

objection, and obtained a ruling. See TEX. R. APP. P. 33.1(a); Jacoby v. State, 227

S.W.3d 128, 130 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Even constitutional

errors may be waived by the failure to object at trial. See Briggs v. State, 789 S.W.2d

918, 924 (Tex. Crim. App. 1990) (en banc); Trevino v. State, 174 S.W.3d 925, 927 (Tex.

App.—Corpus Christi 2005, pet. ref’d) (citing Smith v. State, 721 S.W.2d 844, 855 (Tex.

Crim. App. 1986)).         Because Obregon failed to object specifically to any of the

complained-of statements made during closing argument, he has waived error for our

review. We overrule Obregon’s third issue.

                                         V.      CONCLUSION

        We affirm the judgment of the trial court.



                                                                         NELDA V. RODRIGUEZ
                                                                         Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 5th
day of September, 2013.



        4
          Obregon also asserts that the trial court’s comments during voir dire diminished the presumption
of innocence. We discussed Obregon’s contentions regarding voir dire in his second issue and need not
address them further. See id. 47.1.
                                                   12
