                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 FREDDY GONZALEZ,                                 §
                                                                  No. 08-11-00147-CR
                              Appellant,          §
                                                                    Appeal from the
 v.                                               §
                                                                  120th District Court
 THE STATE OF TEXAS,                              §
                                                                of El Paso County, Texas
                              Appellee.           §
                                                                  (TC# 20100D03505)
                                                  §


                                           OPINION

       Freddy Gonzalez appeals the trial court’s judgment convicting him of murder and

sentencing him to 35 years’ imprisonment. Raising two issues on appeal, Gonzalez argues that

the trial court failed to apply the law of self-defense correctly in the jury charge and erroneously

admitted extraneous offense evidence. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Gonzalez killed his brother-in-law, Hector Saul Cifuentes, by stabbing him in the heart

with a knife. Indicted and tried for murder, Gonzalez testified that he did not know how Cifuentes

was stabbed, but that it must have occurred when Cifuentes was pulling Gonzalez’s knife from his

right-front pocket while they both struggled for its control. The trial court’s charge instructed the

jury on the law of self-defense and the use of deadly force in self-defense. One of the application

paragraphs in the charge concerning the law of self-defense read:

              You are further instructed, however, that if you believe from the evidence
       beyond a reasonable doubt that at the time and place in question, . . . CIFUENTES,
       was not using or attempting to use unlawful force on the Defendant, or if you
       believe beyond a reasonable doubt that the State has proven that the facts giving
       rise to the presumption of reasonable belief that force was immediately necessary
       do not exist, then you will find against the Defendant on his plea of self-defense,
       and say by your verdict ‘guilty’ (Verdict Form ‘A,’), and not consider any other
       charges below.

Although Gonzalez objected to other parts of the charge, he did not object to this paragraph. The

jury convicted Gonzalez of murder.

                               SELF-DEFENSE INSTRUCTION

       In his first issue, Gonzalez argues that the application paragraph identified above was

erroneous because it “affirmatively instructed the jury to convict [him] without finding first that he

had not acted in self-defense,” thereby egregiously harming him by “depriv[ing] [him] altogether

of the self-defense theory which was best supported by his version of the events.” According to

Gonzalez, the self-defense theory that best supported his version of events was “his belief that

[Cifuentes] was attacking him with deadly force[;] . . . [a] belief ar[ising] from the fact that

[Cifuentes] pulled a knife from his pocket during their struggle;” it was not the statutory

presumption that his belief was reasonable. Gonzalez thus contends that the trial court erred by

instructing the jury to convict him if the jury found that the State had disproved the statutory

presumption without requiring the jury to find first that his subjective belief was not reasonable.

                                        Standard of Review

       We review charge error on appeal by determining whether error occurred, and if so,

whether that error caused sufficient harm to require reversal. Ngo v. State, 175 S.W.3d 738, 744

(Tex.Crim.App. 2005). The degree of harm required for reversal depends on whether the

defendant preserved error at trial. Ngo, 175 S.W.3d at 743. When the defendant preserves error

at trial by timely objection, the record must establish only “some harm” to obtain reversal. Id.

By contrast, when, as here, the defendant fails to preserve error at trial, the record must

                                                  2
demonstrate “egregious harm” to obtain reversal.1 Id. at 743-44. Egregious harm is defined as

harm that affects the very basis of the case, deprives the defendant of a valuable right, vitally

affects the defensive theory, or makes a case for conviction clearly and significantly more

persuasive. Id. at 750. In other words, egregious harm denies the defendant a fair and impartial

trial. Id. In determining whether the defendant suffered actual harm, not just theoretical harm,

we review: (1) the entire charge; (2) the state of the evidence, including the contested issues and

the weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant

information revealed by the record. Id. at 750 n.48.

                                                       Discussion

         Assuming, without deciding, that the trial court failed to apply the law of self-defense

correctly, Gonzalez has nevertheless failed to demonstrate egregious harm as a result of the alleged

charge error.2



                                                1. The Jury Charge

         Considering the relationship between the abstract portion of the charge and all of its

application paragraphs, the jury charge ameliorated the purportedly erroneous application

paragraph of which Gonzalez complains and did not, as a whole, misinform the jury on the law of
1
  As noted above, Gonzalez failed to object to the application paragraph contained in the trial court’s charge and set
forth above. This is the same application paragraph that he now complains of on appeal.
2
  Because the trial court’s inclusion of a defensive issue in the charge signals to the jury that such a defense is “‘the
law applicable to the case’[,] . . . any flaw in the charge [regarding the defense] amounts to an error in the charge . . . .”
Barrera v. State, 982 S.W.2d 415, 416 (Tex.Crim.App. 1998). A defendant is entitled to use deadly force in
self-defense if he or she: (1) would be justified in using non-deadly force as established by Section 9.31 of the Penal
Code; and (2) reasonably believes that deadly force is immediately necessary to protect him against unlawful deadly
force or to prevent the imminent commission of specified violent crimes. See TEX. PENAL CODE ANN. § 9.32(a)
(West 2011). A defendant’s entitlement to use deadly force against an assailant is based upon what he reasonably
believed the danger was, as he reasonably apprehended it, not upon whether his assailant was actually using or
attempting to use unlawful deadly force. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996); Semaire v.
State, 612 S.W.2d 528, 530 (Tex.Crim.App. 1980); Jones v. State, 544 S.W.2d 139, 142 (Tex.Crim.App. 1976).
                                                              3
self-defense. Accordingly, the jury charge as whole supports the conclusion that Gonzalez was

not egregiously harmed as a result of the alleged error.

        Gonzalez concludes that he suffered egregious harm, but fails to identify what that harm is.

The State contends that the charge, when viewed as a whole and not in isolation, “sufficiently and

correctly informed the jury of the conditions under which [it] [was] to find [Gonzalez] not

guilty[.]”

        In so arguing, the State directs our attention to two separate parts of the charge. The first

is the abstract portion of the charge, which correctly defines self-defense and the use of deadly

force in self-defense. With respect to this portion of the charge, Gonzalez concedes that “the

basic law of self-defense was correctly defined in the abstract as to the use both of ordinary force

and of deadly force.” He further concedes that “[i]n most respects, the court’s charge was

unobjectionable.” The second is the first application paragraph in the charge, which correctly

applies the law of self-defense to the facts of the case by informing the jury that it was required to

find Gonzalez not guilty if it believed that he had a reasonable belief that deadly force was

immediately necessary to protect himself from Cifuentes. In its entirety, this paragraph read:

                But [if] you further find from the evidence, or have a reasonable doubt
        thereof, that . . . GONZALEZ reasonably believed or is presumed to have
        reasonably believed as viewed from his standpoint alone that deadly force when
        and to the degree used, if it was, was immediately necessary to protect himself
        against the use or attempted use of unlawful deadly force by . . . CIFUENTES, you
        will acquit . . . GONZALEZ and say by your verdict ‘not guilty’ . . . .

With respect to this paragraph, Gonzalez admits that he would have had “no real cause [for]

complaint” had the trial court stopped its application of the law to the facts at this juncture and not

continued.

                    2. The Contested Issues/Weight of Probative Evidence

                                                  4
       The weight of the probative evidence that the State developed at trial refuting Gonzalez’s

claim of self-defense was such that, notwithstanding the purportedly erroneous application

paragraph of which Gonzalez complains, the jury could have found beyond a reasonable doubt that

Gonzalez did not have a reasonable belief that deadly force was required. This factor therefore

supports the conclusion that Gonzalez was not egregiously harmed as a result of the alleged error.

       Although Gonzalez testified to his version of events regarding how Cifuentes was stabbed,

his testimony was uncorroborated, and, more importantly, was contradicted by evidence the State

developed at trial. The State’s evidence included the testimony of two unbiased witnesses. Jose

Luis Medina, a next-door neighbor of the Gonzalez family who did not know the family well,

testified that he saw Cifuentes and Gonzalez arguing in the backyard and then begin boxing. He

did not testify that they were grappling with one another, as Gonzalez and his brother, Luis

Gonzalez, testified, nor did he testify that he saw Gonzalez and Cifuentes struggling over a knife,

as Gonzalez testified. Likewise, Manuel Francisco Mendoza-Castillo, a friend of Gonzalez and

his brothers who drank with them and Cifuentes that day, testified that Gonzalez and Cifuentes

came to blows after arguing and did not struggle over a knife as Gonzalez testified.

       According to Medina, when Cifuentes and Gonzalez stopped boxing and separated,

Gonzalez reached toward his right-front pocket, moved his hand toward Cifuentes’s chest, and

“poke[d]” Cifuentes. Although Medina testified that he did not witness Gonzalez pull a knife

from his pocket, he testified that he saw Gonzalez holding a knife after he had poked Cifuentes in

the chest. Similarly, Mendoza-Castillo did not testify that he saw Gonzalez stab Cifuentes.

Rather, he testified that Cifuentes stumbled away bleeding after the fight stopped, and, when

Cifuentes so stumbled, he saw Gonzalez holding a bloody kitchen knife in his hand.


                                                5
           Although Mendoza-Castillo testified that he did not know how Gonzalez came to possess

the knife because Gonzalez never told or showed anyone he had a knife, both he and Medina

testified that Cifuentes did not have a gun, knife, or rock in his hands while fighting Gonzalez.3

Luis Gonzalez testified that he did not see his brother or Cifuentes with a knife that day.

           On appeal, Gonzalez argues that the State’s strategy at trial was to rebut “the facts from

which the jury would be required to presume the reasonableness of [his] apprehension, rather than

to prove that he did not actually have a reasonable apprehension of danger.” Accordingly,

Gonzalez focuses exclusively on his argument that “whenever the prosecuting attorneys

specifically argued the legal consequence of the facts, it was the presumption they attacked, not

[his] claim that he actually feared for his life or that such fear was reasonable under his version of

the events.” Gonzalez then summarily asserts that he was nonetheless entitled to acquittal “if,

when [Cifuentes] reached for the knife in his pocket, he [Gonzalez] reasonably believed that the

action he then took . . . was immediately necessary to protect himself against [Cifuentes’s]

unlawful use of deadly force.”

           However, as the fact finder, the jury was free to disbelieve the testimony of Gonzalez and

of his brother – a convicted felon – that Cifuentes was stabbed accidently, and believe instead the

testimony of Mendoza-Castillo and Medina – two unbiased witnesses – that Gonzalez

intentionally stabbed Cifuentes. See Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App. 2010)

(noting that jurors are the exclusive judges of the facts, the credibility of the witnesses, and the

weight to be given to the testimony); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.

2000), overruled on other grounds, Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009)(noting

that a jury may accept one version of the facts and reject another, and it may reject any part of a
3
    Mendoza-Castillo testified that Cifuentes did not have any type of weapon in his hand.
                                                           6
witness’s testimony). Thus, the jury could have decided that Gonzalez did not have a reasonable

belief that deadly force was immediately necessary to protect himself from Cifuentes. By

rejecting Gonzalez’s claim of self-defense and convicting him of murder, the jury clearly did so.

                                           3. The Jury Argument

        When considered as a whole, the jurors’ understanding of the law of self-defense was

enhanced, rather than diminished, by the trial court’s definition of the law of self-defense, its

instruction to the jury that it should find Gonzalez not guilty if the jury believed or had a

reasonable doubt as to whether or not Gonzalez acted in self-defense, and the parties’ closing

arguments. The parties’ closing arguments to the jury support the conclusion that Gonzalez was

not egregiously harmed by the alleged error.

        Although the prosecutors and defense counsel focused mainly on convincing the jury that

the evidence adduced at trial supported their version of events, they both discussed self-defense.

The prosecution, however, devoted more effort to the issue. While the defense briefly pointed out

that the State bore the burden of disproving Gonzalez’s claims of self-defense and involuntariness

beyond a reasonable doubt, the State spent considerably more time arguing that Gonzales was not

entitled to assert self-defense. In disputing Gonzalez’s claim that he acted in self-defense, the

prosecutors argued that the physical and blood-spatter evidence and Gonzalez’s own in-court

demonstration proved that he was lying and that he was not justified in using deadly force given

that Cifuentes did not have a weapon while they were fighting.4 In so arguing, the prosecutors

highlighted Medina’s and Mendoza-Castillo’s testimony that they never saw Cifuentes with a

knife or weapon of any kind, much less one that could cause serious bodily injury.


4
 The prosecutors also argued that Gonzalez was not justified in using deadly force because the knife used to stab
Cifuentes was longer than five and one-half inches.
                                                         7
                           4. Other Relevant Information: Voir Dire

         As is the case with the parties’ closing arguments, the parties’ arguments to the jury during

voir dire enhanced, rather than diminished, the jurors’ understanding of the law of self-defense.

This factor also supports the conclusion that Gonzalez was not egregiously harmed by the alleged

error.

         The prosecutors explained to the jury that the State’s burden was to prove the commission

of the offense beyond a reasonable doubt and that if the evidence raised the issue of self-defense,

the trial court was required to provide it with the law on self-defense, “even if the evidence the

defense brought was unbelievable.” In expounding upon the issue of self-defense, the

prosecutors explained to the jury that a defendant was justified in using deadly force only if he

reasonably believed that the use of such force was immediately necessary. Similarly, the defense

explained to the jury that a defendant was justified in using deadly force only if he reasonably

believed that the use of such force is immediately necessary. Defense counsel also emphasized

that the State had to disprove self-defense beyond a reasonable doubt, and, if the jurors “ha[d] a

question as to whether or not self-defense existed, [they had to] vote not guilty.”

                                               5. Summary

         Considering the jury charge, the weight of the contested evidence, arguments of counsel,

and voir dire, we hold that Gonzalez has failed to show that he was egregiously harmed as a result

of the alleged jury-charge error. Accordingly, we overrule his first issue.

                         ADMISSION OF EXTRANEOUS OFFENSES

         In his second issue, Gonzalez argues that the trial court erred by admitting, over his

objections, extraneous conduct evidence impugning his reputation as peaceable when he had not


                                                  8
placed his reputation at issue. Specifically, he complains of the admission of evidence that: (1)

he assaulted his wife once and threatened her with a knife on another occasion; (2) pulled a

handgun on a woman and asked her if she wanted to die; and (3) destroyed a friend’s satellite dish.

According to Gonzalez, the erroneous admission of this evidence harmed him because the State’s

emphasis on his criminal disposition “unfairly damaged the effectiveness of [his] defensive theory

on an improper emotional basis.”

                                        Standard of Review

         A trial court’s decision to admit evidence is reviewed for an abuse of discretion, and we

will reverse only if there is a showing of a clear abuse of discretion. Prible v. State, 175 S.W.3d

724, 731 (Tex.Crim.App. 2005). A clear abuse of discretion occurs only if the trial court’s

decision falls outside the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d

372, 391 (Tex.Crim.App. 1991)(op. on reh’g).

                                          Applicable Law

         Pursuant to Texas Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts is not

generally admissible to prove a defendant’s character or to show action in conformity therewith.

TEX.R. EVID. 404(b). However, a defendant may offer evidence to prove his character or to

show he acted in conformity therewith. Id. at 404(a)(1)(A). If a defendant does place his

character at issue, the prosecution is entitled to offer extraneous-offense evidence to rebut the

defendant’s contention. TEX.R. EVID. 404(a)(1)(A). A defendant places his character at issue

and opens the door to otherwise inadmissible evidence by leaving a false impression with the jury

that invites the other side to respond. Hayden v. State, 296 S.W.3d 549, 554 (Tex.Crim.App.

2009).


                                                  9
                                           Discussion

       Gonzalez argues that the testimony of his brother, Luis Gonzalez, that Gonzalez had a

mellower and more peaceful disposition than his brothers did not place his character at issue and

open the door so as to permit the State to introduce evidence of his past misconduct. The

testimony in question was elicited from Luis Gonzalez when he was examined directly by defense

counsel. It arose during the following exchange:

       [Defense counsel]: Is [Gonzalez] like you and Javier in the way of how you-all
       deal with stuff?

       [Luis Gonzalez]: No.

       [Defense counsel]: Tell me, what’s the difference?

       [Luis Gonzalez]: [Gonzalez] is a little bit more emotional, more on the down-low.

       [Defense counsel]: More what?

       [Luis Gonzalez]: On the down-low, more peaceful and more quiet than me and
       my brother.

       [Defense counsel]: What did you say? More white?

       [Luis Gonzalez]: No. More on the down-low, more just mellow out.

       Outside the jury’s presence, the prosecutor argued that because Luis Gonzalez had “opened

the door wide open to [Gonzalez’s] peaceful character,” she was permitted “to go into that and ask

him about specific instances of conduct under Rule 405 that could challenge [his] opinion that

[Gonzalez] is a peaceful person.” Defense counsel initially objected on the bases that his

questioning was limited to contrasting Gonzalez’s character with that of his brothers and that the

State could not introduce acts of misconduct, only convictions, but then objected on the basis that

the State, rather than he, opened the door to Gonzalez’s character. The trial court overruled


                                                10
Gonzalez’s objections on all bases proffered.

       On cross-examination, Luis Gonzalez testified that he was not aware that Gonzalez had

been arrested for: (1) assaulting his wife; (2) “pulling a handgun on a woman and asking her if

she wanted to die;” and (3) destroying a friend’s satellite dish. He was also unaware that

Gonzalez was investigated for “pulling a knife on his wife.” Luis Gonzalez thereafter agreed with

the prosecutor that Gonzalez “really isn’t all that peaceful.” On redirect examination, however,

he testified that, despite what he had learned about his brother during cross-examination, his

brother was nonetheless a peaceful person.

       According to Gonzalez, his brother was not testifying that he “is a person unlikely to make

unprovoked attacks on others,” but rather that he has “a generally mellow disposition.” Such

testimony clearly placed Gonzalez’s character at issue. There is no doubt but that one could

reasonably infer that Luis Gonzalez was attempting to help his brother by portraying Gonzalez as

someone of good character with a peaceful disposition. By doing so, he left a false impression

with the jury that invited the State to respond. The trial court did not err in concluding that

Gonzalez’s character for being law-abiding and peaceful had been placed in debate. See Bass v.

State, 270 S.W.3d 557, 563 (Tex.Crim.App. 2008)(holding that argument that the defendant was a

pastor and minister and “the real deal” and the “genuine” article opened the door to extraneous

offenses); Harrison v. State, 241 S.W.3d 23, 27-8 (Tex.Crim.App. 2007)(holding that testimony

that the defendant was a “good” and “sweet” boy opened the door to extraneous offenses); Fuentes

v. State, 991 S.W.2d 267, 280 (Tex.Crim.App. 1999)(holding that answers to questions as to

whether the witness had ever seen a person misbehave or cause trouble clearly asked about

character).


                                                 11
           Gonzalez also complains on appeal of the State’s introduction of two instances of

extraneous conduct. Gonzalez’s wife, Veronica Vargas, testified on cross-examination that

Gonzalez assaulted her twice previously, punching her on one occasion and threatening her with a

knife on another occasion. Gonzalez’s sister, Martha Gonzalez, who was Cifuentes’s wife,

testified on cross-examination that Gonzalez assaulted Vargas by punching her. Gonzalez

correctly argues that at the time of the admission of his wife and sister’s testimony, he had not

placed his reputation or character at issue.5 The trial court’s admission of such testimony was, at

the time of its admission, error. However, despite Gonzalez’s assertion to the contrary, any error

the trial court committed by admitting the extraneous-offense evidence during the State’s

case-in-chief was cured when Luis Gonzalez testified that Gonzalez was mellow and peaceful.

See Daggett v. State, 187 S.W.3d 444, 454 (Tex.Crim.App. 2005)(“[I]f extraneous offense

evidence is improperly introduced during the State’s case-in-chief, any error may be cured by the

defendant’s subsequent testimony which ‘opens the door’ to rebuttal.”); Siqueiros v. State, 685

S.W.2d 68, 71 (Tex.Crim.App. 1985)(“Lastly, where an extraneous offense may have been

improperly admitted in the State’s case-in-chief, subsequently admitted evidence can render the

error harmless.”).

           Having disposed of Gonzalez’s arguments, we hold that the trial court did not abuse its

discretion by admitting the evidence of extraneous misconduct Gonzalez complains of on appeal.

Accordingly, we overrule his second issue.

                                                      CONCLUSION

           Having overruled both of Gonzalez’ issues, the judgment of the trial court is affirmed.



5
    Both Veronica Vargas and Martha Gonzalez testified before Appellant’s brother, Luis Gonzalez, testified.
                                                          12
September 19, 2012
                                             CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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