Elizondo, Jose Guadalupe Rodriguez

Opinion

Filed as a supplement to the PDR PD-1039-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

March 12, 2015 Transmitted 3/11/2015 3:54:30 PM Accepted 3/12/2015 9:11:00 AM ABEL ACOSTA

PD-1039-14 CLERK

Court of Criminal Appeals of Texas

Jose Guadalupe Rodriguez Elizondo, Appellant

March 17, 2015

v.

State of Texas,

Appellee

ON APPEAL FROM CAUSE NO. 13-12-00028-CR IN THE THIRTEENTH COURT OF APPEALS

TRIAL COURT CAUSE NO. CR-3485-10-I 398TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS HON. AIDA SALINAS FLORES/HON. LINDA YAÑEZ PRESIDING

APPELLANT JOSE GUADALUPE RODRIGUEZ ELIZONDO’S AMENDED PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT REQUESTED Brandy Wingate Voss State Bar No. 24037046 SMITH LAW GROUP, P.C. 820 E. Hackberry Ave. McAllen, TX 78501 (956) 683-6330 (956) 225-0406 (fax) Counsel for Appellant Jose Guadalupe Rodriguez Elizondo

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judges Hon. Aida Salinas Flores Hon. Linda Yañez sitting by assignment

Appellant Appellate Counsel

Jose Guadalupe Rodriguez Elizondo Brandy Wingate Voss Smith Law Group, P.C. 820 E. Hackberry Ave. McAllen, Texas 78501

Trial Counsel

Santos Maldonado, Jr. 209 E. University Dr. Edinburg, Texas 78539

Appellee Trial Counsel

State of Texas Rolando Cantu Criselda Rincon-Flores Hidalgo County District Attorney’s Office Asst. Criminal District Attorneys 100 N. Closner Edinburg, Texas 78539

Appellate Counsel

Ted Hake Michael Morris Hidalgo County District Attorney’s Office Assistant District Attorneys—Appeals Division 100 N Closner Rm 303 Edinburg, TX 78539

i

TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................................ i

TABLE OF CONTENTS ............................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT................................................. vi

STATEMENT OF THE CASE ................................................................................... vi

STATEMENT OF PROCEDURAL HISTORY ....................................................... viii

GROUNDS FOR REVIEW ........................................................................................ ix

ARGUMENT................................................................................................................ 1

I. Fleeing to a vehicle nearly 70 yards away from an initial altercation should be sufficient abandonment and not a mere change of position. ............................................................................................. 1

II. The court of appeals should have analyzed all the elements of Smith v. State before determining that Elizondo provoked the second altercation. ....................................................................... 3

III. The court of appeals affirmed on a jury charge that was grossly incorrect by ignoring and then misapplying this Court’s precedent. .... 8

A. The court of appeals erroneously refused to review two omissions from the charge, in conflict with this Court’s prior decisions .......................................................................................... 9

B. The court of appeals erroneously failed to properly apply the appropriate harm analysis to the other charge errors ..................... 11

ii

C. The jury charge was a garbled mess, and a review of the complete charge and application of the proper harm analyses requires reversal. ...................................................................... 15

CONCLUSION AND PRAYER................................................................................ 19

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e) ....................................... 20

CERTIFICATE OF SERVICE ................................................................................... 21

APPENDIX ................................................................................................................. 22

iii

INDEX OF AUTHORITIES

Cases

Barrera v. State, 982 S.W.2d 415 (Tex. Crim. App. 1998)....................................................... 10, 11

Brown v. State, 651 S.W.2d 782 (Tex. Crim. App. 1983) ............................................................... 17

Carlile v. State, 255 S.W. 990 (Tex. Crim. App. 1923). .................................................................... 2

Cornet v. State, 417 S.W.3d 446 (Tex. Crim. App. 2013) ............................................................... 14

Elizondo v. State, No. 13-12-00028-CR, 2014 WL222834 (Tex. App.—Corpus Christi Jan. 16, 2014, pet. filed) (mem. op., not designated for publication) ............. passim

Ervin v. State, 367 S.W.2d 680 (Tex. Crim. App. 1963) ................................................................. 2

Frank v. State, 688 S.W.2d 863 (Tex. Crim. App. 1985) ............................................................... 10

Gray v. State, 388 S.W.2d 710 (Tex. Crim. App. 1964). ................................................................ 2

Lerma v. State, 807 S.W.2d 599 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) ..................... 10

Mendoza v. State, 349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d).................................. 6, 17, 19

iv

Reeves v. State, No. 01-10-00395-CR, 2012 WL 5544770 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012) (mem. op. on reh’g, not designated for publication)..6, 7

Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) ..................................................... 6, 9, 15

Reynolds v. State, 371 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ........................... 10

Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) ............................................................... 13

Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998) .................................................... 3, 4, 6, 7

Vega v. State, 394 S.W.3d 514 (Tex. Crim. App. 2013) ............................................................... 11

Statutes

TEX. PENAL CODE ANN. § 9.04 ..................................................................................... 9

TEX. PENAL CODE ANN. § 9.31 ..................................................................................... 1

TEX. PENAL CODE ANN. § 9.32 ................................................................................... 12

Secondary Authority

Tex. Pattern Jury Charges, Criminal Defenses, § B14.2 ............................................... 16

v

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

Appellant, Jose Guadalupe Rodriguez Elizondo, respectfully requests that this

Court grant his petition for discretionary review and respectfully shows:

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would be beneficial in this case because it presents unique

circumstances that should be addressed by this Court. Specifically, this case presents

complicated issues of self-defense, provocation, and abandonment of the difficulty,

and a grossly erroneous jury charge on those defensive issues, with which counsel for

appellant can assist the Court through oral argument.

STATEMENT OF THE CASE1

This case involves complicated isues of self-defense arising from two separate

altercations. After his wife was mistreated by a bouncer at a nightclub, Elizondo—an

off-duty United States Customs officer—was involved in an initial altercation with

the bouncer and several others outside the club.2 Elizondo was outnumbered during

this initial altercation, and he feared for his life.3 The undisputed evidence shows

1 The clerk’s record consists of one volume and two supplemental volumes, which will be 2 16RR183-192.

3 12 RR 178, 180; 16RR191-195; 17 RR 19, 21.

vi

that Elizondo sought to abandon the difficulty by running nearly seventy yards to his

truck and getting inside the vehicle.4

Nevertheless, the bouncers chased Elizondo all the way to his truck, cursing

and yelling at him to stop running, and then “banging on the windows” of the truck

to force him out.5 Once at the truck, Elizondo was forcefully removed from it and

engaged in a second altercation with the men.6 As part of this second altercation, the

club’s owner, Fermin Limon, Sr., pointed a gun at Elizondo, refused to put the

weapon down after being told to do so by Elizondo, and Elizondo fired his own gun

in self-defense, causing Limon, Sr.’s death.7

The court of appeals acknowledged this sequence of events but dismissed

Elizondo’s self-defense argument with two short, conclusory paragraphs, glossing

over Elizondo’s arguments distinguishing the two altercations and his assertion that

he abandoned the difficulty. Elizondo v. State, No. 13-12-00028-CR, 2014

WL222834, at *6 (Tex. App.—Corpus Christi Jan. 16, 2014, pet. filed) (mem. op.,

not designated for publication). The court held that an alleged statement by

Elizondo after he had already started to flee the difficulty and after the men initiated 4 12RR178, 180; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-137, 233;

16RR113, 197; 21RRDX21.

5 13RR149, 179; 14RR104, 105; 15RR41-42, 237; 16RR27-29.

6 16RR201-203.

7 12RR180-181; 13RR16, 68-69, 134-137, 171-173; 14RR108-109, 250; 15RR15-17, 44-47, 138, 140, 143, 152; 16RR38, 206-207, 214-215.

vii

a chase to his vehicle provoked the second altercation, undermining Elizondo’s self-

defense justification. Id. The court, however, did not analyze the elements of

provocation with respect to these statements. Id.

Moreover, the jury charge was incomplete and woefully erroneous. The court

of appeals rejected Elizondo’s complaints about the jury charge without analyzing all

of Elizondo’s arguments and without conducting a full harm analysis. Id. Elizondo is

currently serving a 25-year sentence for murder.8

STATEMENT OF PROCEDURAL HISTORY

Date and citation to Court of Appeals The Thirteenth Court of Appeals issued Opinion: its opinion and judgment on January 16, 2014. Elizondo v. State, No. 13-12- 00028-CR, 2014 WL222834 (Tex. App.—Corpus Christi Jan. 16, 2014, pet. filed) (mem. op., not designated for publication).

Motion for Rehearing and Elizondo timely filed motions for Reconsideration En Banc: rehearing and for reconsideration en banc on March 3, 2014 (the Thirteenth Court granted an extension of time).

Court of Appeals’ Disposition: The Thirteenth Court of Appeals overruled Elizondo’s motions for rehearing and for reconsideration en banc on June 30, 2014, and this Court extended the time to file a petition for discretionary review.

8 CR69-71.

viii

GROUNDS FOR REVIEW

1. The evidence showed that Elizondo fled nearly 70 yards to his vehicle

and got inside—the only realistic place to run under the circumstances—only to be

chased by his attackers and forcibly removed from the vehicle. Under those

circumstances, did Elizondo sufficiently “abandon the difficulty” to support a self-

defense justification, or was his flight a mere change of position of the parties and a

continuation of the prior altercation?

2. The State alleged that after Elizondo fled the initial altercation and after

his attackers began their pursuit, Elizondo made statements that provoked a second

attack. Was the court of appeals required to conduct a full analysis of the elements

of provocation under Smith v. State, including (1) whether the defendant did some

act or used some words which provoked the attack on him; (2) whether the act or

words were reasonably calculated to provoke the attack; and (3) whether the act was

done or the words were used for the purpose and with the intent that the defendant

would have a pretext for inflicting some harm on another? Should the Court reverse

and render a judgment of acquittal when the words allegedly spoken after a pursuit

was already underway could not have possibly provoked a pursuit and a further

attack, and where there is no evidence that the defendant intended to provide a

pretext for inflicting harm?

ix

3. The jury charge contained numerous errors and omissions, which the

court of appeals recognized. Yet the court of appeals erroneously (1) held that

omissions from the charge were waived by defense counsel, and (2) failed to apply

the appropriate harm standard to all the errors presented. Should the Court reverse

under these circumstances, where after applying the correct harm analysis, it appears

that the charge as a whole was incomplete, the instructions actually provided were

woefully inaccurate, and the charge failed to protect and preserve Elizondo’s only

defense?

x

ARGUMENT

I. Fleeing to a vehicle nearly 70 yards away from an initial altercation should be sufficient abandonment and not a mere change of position. Provocation and abandonment are central, complex issues in this case,

involving a multi-part inquiry. The court of appeals below failed to conduct a

thorough analysis, instead essentially ignoring Elizondo’s “abandonment” argument.

As a result, a former United States Customs officer is serving a twenty-five year

murder sentence.

“[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). A defendant, however, is not entitled to use force “if the actor provoked

the other’s use or attempted use of unlawful force, unless: (A) the actor abandons

the encounter, or clearly communicates to the other his intent to do so reasonably

believing he cannot safely abandon the encounter; and (B) the other nevertheless

continues or attempts to use unlawful force against the actor . . . .” Id. § 9.31 (b)(4).

When there are multiple altercations, courts looking at provocation first

determine if the initial encounter was abandoned. See Carlile v. State, 255 S.W. 990,

991-92 (Tex. Crim. App. 1923). This Court has held that “the abandonment of the

2

difficulty by the defendant does not arise where the difficulty was continuous, the

only change being in the position of the parties during the progress of the

encounter.” Ervin v. State, 367 S.W.2d 680, 683-84 (Tex. Crim. App. 1963). Rather,

it is “necessary that the intention to abandon the difficulty be, in some manner,

communicated by the appellant so as ‘to advise his adversary that his danger had

passed, and make his conduct thereafter the pursuit of vengeance rather than

measures to repel the original assault.’” Id. at 684.

Logically, flight from an altercation will always be a “change of the position of

the parties,” and this Court has never explained just how much distance is enough

to constitute abandonment. The Court should take the opportunity to clarify that

fleeing to a vehicle—where that is the only reasonable location to retreat—is sufficient

abandonment. See, e.g., Gray v. State, 388 S.W.2d 710, 712 (Tex. Crim. App. 1964).

Here, it is undisputed that the first altercation occurred at the nightclub’s

door. Regardless of whether Elizondo provoked the initial altercation, he

nevertheless ran almost 70 yards to his vehicle, got inside, and shut the door.9 This

was not a mere “change of position.” Running that far away from an altercation and

getting in a vehicle is abandonment, yet the lower court’s opinion does not address

whether Elizondo’s flight sufficiently communicated his intent. There was no

9 11RR95; 12RR178, 180-181; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-

137, 233; 16RR113, 197; 21RRDX21.

3

testimony (1) demonstrating that Elizondo could have fled to any other location, or

(2) that Elizondo should have left his wife and truck at the establishment in order to

abandon the altercation.10 It is unclear what more he could have done. That should

not be the law in Texas, and this Court should grant the petition to clarify the law of

abandonment.

II. The court of appeals should have analyzed all the elements of Smith v. State before determining that Elizondo provoked the second altercation. The court of appeals found that Elizondo provoked the second altercation, yet

it did so without conducting a full analysis as required in Smith v. State, 965 S.W.2d

509, 512 (Tex. Crim. App. 1998). To invoke the provocation exception to self-

defense, the State must show that

(1) that the defendant did some act or used some words which provoked the attack on him,

(2) that such act or words were reasonably calculated to provoke the attack, and

(3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.

Id. The State must show that Elizondo performed some act or used words that

actually provoked the attack, the words or acts were the type that would ordinarily

10 See generally RR.

4

provoke an attack, and he intended to provoke an attack to have a pretext for killing

Limon, Sr. See id.

Elizondo specifically argued that the first and second altercations should be

distinguished based on the timing of the events, the first altercation was abandoned

when he ran to nearly 70 yards and got inside his vehicle, and there was no evidence

he said or did anything as a pretext to kill Limon, Sr. Rejecting Elizondo’s

arguments in one short paragraph, the court below held:

Elizondo argues, however, that even assuming he provoked the initial difficulty, he abandoned this first encounter near the bar by running to his pickup truck. This abandonment would thus make him eligible for the self-defense affirmative defense. However, we conclude that a reasonable jury could have found otherwise. Junior testified that when Elizondo left the first difficulty and ran to his pickup truck, he was yelling, “Van a ver,” roughly translated as “You will see.” Junior was frightened by that statement and believed it constituted a threat to him and his co-workers. Further, the jury had Elizondo’s police statement wherein he admitted that he “ran towards [his] truck where [he] had [his] duty issued H & K 40 Caliber handgun.” This evidence supports the jury’s implied finding that Elizondo was running to his truck for his firearm, not to abandon or discontinue the fight.

Elizondo, 2014 WL 222834, at *6 (citations omitted).

Affirming on these grounds, however, the court failed to address all of

Elizondo’s arguments, including:

a. The court of appeals relied on Elizondo’s alleged statement “van a

ver”—translated as “you will see”—while running away from the initial altercation. Id.

5

Elizondo argued that these words did not actually provoke the pursuit, which was

already under way, or the continued attack at his truck. Elizondo expressly testified

that he ran to his truck to get away from his attackers and got inside the vehicle.11

The only testimony regarding the initial reason for the chase came from a bouncer

named “Junior,” who claimed that he followed Elizondo to his truck to make sure

he left safely, which is completely consistent with Elizondo’s abandonment of the

difficulty.12 The court of appeals disregarded this uncontradicted testimony.

Yet, upon arriving at the truck and discovering Elizondo inside, Junior did

not then just make sure that Elizondo left—he admitted to hitting Elizondo’s vehicle,

and other witnesses testified that Junior was also yelling, “Get off, asshole.”13 In fact,

Rodrigo testified that Junior was trying to get Elizondo to come out of his truck.14

Junior testified that while Elizondo was running away he said the words, “Van

a ver,” or “you’re going to see,” claiming that he took those words as a threat, but

Junior expressly testified that he had already started the pursuit by that time.15 Thus,

those words did not actually provoke the pursuit of Elizondo by Rodrigo, Bryan, and

11 16RR113-114, 191-195; 21RRDX21.

12 16RR9-10, 25.

13 13RR149, 179; 14RR104-105; 15RR41-42; 16RR27-29.

14 15RR80.

15 15RR234-235.

6

Junior, which was already underway.16 Smith, 965 S.W.2d at 512 (“A defendant may

have a desire that the victim will attack him, or he may seek the victim with the

intent to provoke a difficulty, but the defendant must go further and do or say

something which actually provokes the attack before he will lose his right to self-

defense.”) (emphasis added); Reeves v. State, No. 01-10-00395-CR, 2012 WL

5544770, at *4 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012) (mem. op. on reh’g,

not designated for publication) (“Such threats and conduct could not have provoked

a fight that was already in progress.”), aff’d, 420 S.W.3d 812 (Tex. Crim. App. 2013).

This would be a necessary element of any claim by the State that Elizondo’s words,

while already running away, actually provoked the second altercation, and it is

simply insufficient given the sequence of events. See Mendoza v. State, 349 S.W.3d

273, 280-81 (Tex. App.—Dallas 2011, pet. ref’d).

b. The court of appeals likewise did not address whether the words “van a

ver” were reasonably calculated to provoke a pursuit and further attack. In fact, the

opinion does not mention this requirement at all. Elizondo argued there was no

showing that the words were reasonably calculated to provoke an attack or that the

words were used for the purpose and with the intent to provide Elizondo with a

pretext for inflicting harm upon Junior or the ulitmate victim, Limon, Sr. Smith, 965

16 15RR234-235.

7

S.W.2d at 512. “Although a jury can rely upon wholly circumstantial evidence to

find provoking acts or words, such evidence must create more than a suspicion

because juries are not permitted to reach speculative conclusions.” Reeves, 2012 WL

5544770, at *5. There was simply no evidence to support a finding that the words,

“Van a ver,” were of the type that were reasonably capable of causing an attack or

had a reasonable tendency to cause an attack. Smith, 965 S.W.2d at 517 (“An act is

reasonably calculated to cause an attack if it is reasonably capable of causing an

attack, or if it has a reasonable tendency to cause an attack. Some provoking acts or

words can by their own nature be legally sufficient to support a jury finding.”).

In fact, Junior’s own explanation for the pursuit belies any reliance on the

words, “Van a ver,” as the provocation for the second altercation, as he testified he

followed merely to make sure that Elizondo was going to leave and that Elizondo’s

words were spoken after the pursuit was already underway.17 Yet, once he discovered

Elizondo already inside the vehicle, he banged on the window to get him out of the

truck.

There was nothing presented that showed that Elizondo intended to do

anything other than escape the attack by running to his truck—there is nothing to

support a finding that Elizondo intended his actions to provoke Limon, Sr. into

17 15RR234-235; 16RR9-10, 25.

8

pointing a weapon at him as a pretext for killing him. The court of appeals relied on

a statement given to police where Elizondo said that he “ran towards [his] truck

where [he] had [his] duty issued H & K 40 Caliber handgun.” Elizondo, 2014 WL

222834, at *6. The fact that Elizondo ran towards his truck where his gun was

located does not imply that he intended to continue the altercation at the truck or

that he intended to use the altercation as a pretext to kill Limon, Sr.—in fact, the

same statement shows that Elizondo perceived that the men were “attacking” him

and he “just thought [he] needed to get away from them before they take him to the

ground.”18 The statement relied upon by the court of appeals can only support its

decision when taken completely out of context. Elizondo respectfully requests that

this Court grant the petition and conduct the analysis that the court of appeals

should have undertaken.

III. The court of appeals affirmed on a jury charge that was grossly incorrect by ignoring and then misapplying this Court’s precedent. The court of appeals’ opinion demonstrates an inconsistent application of

this Court’s precedent that could lead to erroneous future decisions in an area of

18 21RRDX21.

9

law that is already confusing at best. Elizondo raised four19 different charge errors,

which the court of appeals erroneously rejected without applying the proper

preservation and harm standards. Ultimately, Elizondo’s conviction was affirmed on

a jury charge that was an “impenetrable forest of legal ‘argle-bargle.’” Reeves, 420

S.W.3d at 817.

A. The court of appeals erroneously refused to review two omissions from the charge, in conflict with this Court’s prior decisions

Elizondo argued below that once the trial court undertook to charge the jury

on the law of self-defense, it had the obligation to provide correct and complete

instructions—the self-defense instructions should have included instructions on the

law of multiple assailants and threats as justifiable force.

The jury charge did not provide an instruction on section 9.04, regarding a

threat of deadly force by production of a weapon. See TEX. PENAL CODE ANN. §

9.04. This was certainly raised by the evidence. Elizondo stated he intended to grab

his gun and his credentials and thought that if he displayed them, the men might

19 Elizondo also argued that provocation should not have been submitted to the jury.

Again, the court of appeals failed to properly apply Smith v. State to the evidence and rejected Elizondo’s charge arguments based on its erroneous finding that Elizondo did not abandon the first encounter. Elizondo submits that if the court had properly analyzed Smith v. State, the jury charge should not have included a provocation instruction, and Elizondo respectfully requests the ability to fully brief this issue if review is granted.

10

stop.20 Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st Dist.] 2012,

no pet.).

Additionally, the jury charge omitted any reference to the law of multiple

assailants, instead instructing the jury with reference only to Limon, Sr.’s conduct.

This Court, however, has held that when there are multiple assailants, a jury charge

focusing on only one of those assailants is too restrictive. Frank v. State, 688 S.W.2d

863, 868 (Tex. Crim. App. 1985); Lerma v. State, 807 S.W.2d 599, 601 (Tex. App.—

Houston [14th Dist.] 1991, pet. ref’d). There was certainly evidence in the record

that multiple attackers were pursuing Elizondo.21 It was error for the trial court to

limit its instructions to Elizondo’s beliefs as to the “person against [whom] deadly

force was used.”22

Elizondo argued below that Barrera v. State required treating the omission of

the multiple assailants charge as “error” that the court could properly review under

Almanza. In Barrera, this Court held that when a trial court undertakes to instruct a

jury on a defense raised by the evidence, that defense becomes the law applicable to

the case, and the trial court has a duty to state the law correctly. Barrera v. State, 982

S.W.2d 415, 416 (Tex. Crim. App. 1998). The Court held that where a self-defense

instruction contains an error to which counsel did not object—in that case a 20 16RR200-201. 21 17RR19, 21. 22 2Supp.CR3.

11

complete omission of an application paragraph—the error is subject to review for

egregious harm. Id. at 417.

This Court later clarified that it does not matter if the defensive instruction

was initially requested by the defendant or sua sponte included by the judge—the

judge bears sole responsibility for errors in the charge:

However, if the trial judge does charge on a defensive issue (regardless of whether he does so sua sponte or upon a party’s request), but fails to do so correctly, this is charge error subject to review under Almanza. If there was an objection, reversal is required if the accused suffered “some harm” from the error. If no proper objection was made at trial, a reversal is required only if the error caused “egregious harm.”

Vega v. State, 394 S.W.3d 514, 518-19 (Tex. Crim. App. 2013) (emphasis added).

The court of appeals, however, refused to recognize this precedent and held that

both the “threats as justifiable force” and “multiple assailants” issues were waived by

defense counsel’s failure to request the instructions. Elizondo, 2014 WL 222834, at

*10. The court erroneously refused to review these errors or apply a harm analysis.

B. The court of appeals erroneously failed to properly apply the appropriate harm analysis to the other charge errors Elizondo further pointed out two other errors in the jury charge, which the

court of appeals held were reviewable but then failed to properly analyze under

Almanza.

12

First, the presumption of reasonableness instruction was incomplete. The jury

was instructed that a presumption of reasonableness would arise if the actor “knew

or had reason to believe that the person against [whom] deadly force was used was

committing or attempting to commit murder.”23 However, Texas Penal Code section

9.32(b) provides that the presumption arises in two other situations raised by the

evidence in this case, where the actor knew or had reason to believe an assailant “(A)

unlawfully and with force entered, or was attempting to enter unlawfully and with

force, the actor’s occupied habitation, vehicle, or place of business or employment;”

and “(B) unlawfully and with force removed, or was attempting to remove unlawfully

and with force, the actor from the actor’s habitation, vehicle, or place of business or

employment.” TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B). Here, the evidence

showed that Elizondo knew or had reason to believe that Junior either unlawfully

and with force entered Elizondo’s vehicle or removed him from the vehicle, or was

attempting to do so.24 Defense counsel did not object to this charge, and while the

court of appeals agreed that the evidence “warranted the inclusion of these

instructions,” it nevertheless found that the error was not egregiously harmful.

Elizondo, 2014 WL 222834, at *9.

23 2Supp.CR3.

24 12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134; 15RR233; 16RR113, 197; 21RRDX21.

13

Second, Elizondo argued that the provocation instruction changed the State’s

burden of proof by erroneously telling the jury that if it found provocation, it must

find Elizondo guilty of murder. 25 The jury received this 169-word, unintelligible

instruction:

So, in this case, if you find and believe from the evidence beyond a reasonable doubt that the defendant, Jose Guadalupe Rodriguez Elizondo, immediately before the difficultly, then and there did some act, or used some language, or did both, as the case may be, with the intent on his, the defendant’s, part to produce the occasion for killing the deceased, Fermin Limon, and to bring on the difficultly with the said deceased, and that such words and conduct on the defendant’s part, if there were such, were reasonably calculated to, and did, provoke the difficulty, and that on such account the deceased attacked defendant with deadly force, or reasonably appeared to defendant to so attack him or to be attempting to attack him, and that the defendant then killed the said Fermin Limon by use of deadly force, to wit, by shooting him with a firearm, in pursuance of his original design, if you find there was such design, then you will find the defendant guilty of murder.26

The jury should not have been instructed that if it found provocation, it should find

Elizondo guilty—rejection of self-defense does not require a finding of all the

elements of murder. In fact, the jury was required to find all the elements of murder

and reject self-defense in order to convict. Saxton v. State, 804 S.W.2d 910, 914 (Tex.

Crim. App. 1991). While the court of appeals erroneously determined otherwise,

25 2Supp.CR6.

26 2Supp.CR5-6 (emphasis added).

14

defense counsel did not object to this error.27 The court found no harm, but it did

so without evaluating the Almanza factors. Elizondo, 2014 WL 222834, at *9.

In addressing these two charge errors, while paying lip service to the

applicable standard of review, the court of appeals did not engage in any analysis at

all. Id. With respect to the presumptions of reasonableness, the court of appeals held

that because the jury “could have found that Elizondo was not entitled to a self-

defense argument because he provoked the initial difficulty and did not abandon the

encounter, . . . these extra instructions would not have affected the outcome.” Id.

But just because the jury could have believed the State’s version of the evidence does

not mean that it was not harmful to submit an incomplete version of Elizondo’s

defense. Cornet v. State, 417 S.W.3d 446, 453 (Tex. Crim. App. 2013) (“We agree

with appellant that a review for sufficiency of the evidence cannot substitute for a

harm analysis.”).

With respect to the erroneous provocation instruction, the court of appeals

held that “from voir dire to closing arguments, the jury was repeatedly instructed

that it was the State’s burden to prove that Elizondo committed murder.” Elizondo,

2014 WL 222834, at *9. Those “repeated” instructions were completely undermined

27 See generally 17 RR.

15

by the instruction that if it rejected provocation, the jury must find Elizondo guilty

of murder, yet the court of appeals did not address that argument.

C. The jury charge was a garbled mess, and a review of the complete charge and application of the proper harm analyses requires reversal.

Considering the entire jury charge and all the harm factors, it becomes clear

that Elizondo suffered the requisite degree of harm. As this Court recently

explained,

The trial judge must “distinctly set[ ] forth the law applicable to the case” in the jury charge. “It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion.” While generally, “in the absence of evidence to the contrary, we will assume that the jury followed its written instructions,” this presupposes that the instructions are understandable. Because these instructions were not, “this is not a case in which the reviewing court should apply the usual presumption that the jury understood and applied the court’s charge in the way it was written.”

Reeves, 420 S.W.3d at 819. When the jury charge contains numerous errors,

incomprehensible wording, and essentially robs the defendant of his only defense,

the Court should be extraordinarily careful to analyze the harm, recalling that

neither party has a burden on this issue—the burden of properly analyzing harm falls

squarely on this Court. Id. at 816, 819.

16

Here, as in Reeves, the jury charge contained numerous errors and was

incomplete. 28 Additionally, the state of the evidence mandates a finding of the

requisite degree of harm. With respect to provocation and the presumption of

reasonableness, the evidence was undisputed that Junior and two others pursued

Elizondo to his vehicle, and Elizondo testified that Junior pulled him out of the

vehicle.29 All the witnesses testified that, at the very least, Junior was beating on

Elizondo’s car and trying to force him to come out. 30 But the jury was never

instructed that, if it believed those facts, a presumption of reasonableness could

arise.31 Instead, in order to raise the presumption, they were instructed that they had

28 The charge contained numerous confusing “converse” instructions, which tell the jury that “if the state met its burden, the juries should find against the defendants on the issue of self defense,” and which have been criticized by the Texas Pattern Jury Charge committee on Criminal Defenses:

The Dallas court of appeals in 1999 appeared sympathetic to a defendant’s argument that a converse instruction of the second type is an ‘anachronism in Texas law’ that violates the spirit of the prohibition against comment on the evidence. Nevertheless, it held that it was bound to precedent establishing that the giving of such a converse instruction is not a basis for reversing a conviction. Aldana v. State, No. 05-98-00135-CR, 1999 WL 357355, at *6-7 (Tex. App.—Dallas June 4, 1999, pet. ref’d) (not designated for publication) (relying on Powers v. State, 396 S.W.2d 389, 391-92 (Tex. Crim. App. 1965)). The Committee concluded that if jury instructions on self-defense are properly crafted, so-called converse instructions are neither necessary nor desirable. Thus the instruction at section B14.4 below does not include them.

Tex. Pattern Jury Charges, Criminal Defenses, § B14.2.9.

29 12RR180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134, 233; 16RR113, 197, 201-

203; 21RRDX21.

30 13RR149, 179; 14RR104-105; 15RR42, 80, 237; 16RR29.

31 2Supp.CR.3.

17

to find that Elizondo knew or had reason to believe that Limon was committing or

attempting to commit “murder.”32 Compounding this problem was the lack of a

multiple assailants instruction, which would have allowed the jury to consider

Junior’s conduct, as well as the other two assailants.33 Instead, all of the language in

the charge referred to Limon’s conduct alone.34 Under these circumstances, the jury

charge failed to adequately protect Elizondo’s right to argue self-defense. See Brown v.

State, 651 S.W.2d 782, 784 (Tex. Crim. App. 1983).

Second, any evidence of guilt was not so overwhelming that the jury charge

errors necessarily caused no harm to Elizondo. Mendoza, 349 S.W.3d at 282. But

nevertheless, the jury was not only instructed to disregard Elizondo’s self-defense if it

found provocation, it was instructed to find Elizondo guilty of murder. Cf. id. In other

words, the jury charge implied not only that there was some evidence to support

every element of provocation, but that there was some evidence to support every

element of murder. Cf. id.

Furthermore, self-defense was the focus of the entire case. 35 Specifically,

Elizondo’s defense centered on the following: (1) he abandoned the difficulty by

32 Id.

33 Id.

34 Id.

35 See 17RR82.

18

running to his truck;36 (2) the club’s bouncers chased Elizondo to his truck yelling

obscenities with the intent to continue an attack on Elizondo;37 (3) Junior then

banged on Elizondo’s window to get him out of the truck;38 (4) Elizondo was pulled

out of his truck, and then Limon. Sr. pointed a gun at him. 39 For example,

provoking the difficulty was not a theory that was downplayed or ignored by the

State—provocation was the State’s central argument. Specifically, the State argued

during closing:

This moment in time is pivotal, because he runs from what he says are five or six guys beating on him. That’s what he told Deputy Hector Garcia. This moment is pivotal, because this is where he said— or Trooper Champion said that he just got kicked in the head. He further says that at some point in time, he books it to his car, to his truck, and on the way, he is getting hit on the head (knocking).

....

Somewhere along the way, while he’s running, he gets hit on the head. In his statement he says, at least twice. He needs you to believe that he’s being beaten (indicating).

....

He gets to his truck, first thing he does is pull out a weapon.

Now, his testimony is that he got into his truck and closed the door. Far different from what is in his statement. He grabs the gun—and he

36 17RR89.

37 17RR90-92.

38 17RR95-96.

39 17RR98.

19

decides to grab that gun—and at that point in time when he grabs that gun, another escalation. Things just got deadly, and all bets are off. Everybody’s life now is in danger.40

Thus, the State did not distinguish between the two altercations, but was allowed to

argue that the first altercation was the provocation that mattered. The self-defense

instructions took up a significant part of the jury charge.41 Mendoza, 349 S.W.3d at

283. Furthermore, the state of the evidence shows egregious harm, given that

Elizondo admitted to shooting Limon. See id.

CONCLUSION AND PRAYER

This Court should grant review, request additional briefing, and render the

judgment that the court of appeals should have rendered. The Court should reverse

the judgment of the lower courts and render a judgment of acquittal or,

alternatively, reverse and remand for further proceedings below.

40 17RR112-114.

41 See 2Supp.CR5-6.

20

Respectfully submitted,

/s/ Brandy Wingate Voss Brandy Wingate Voss State Bar No. 24037046 SMITH LAW GROUP, P.C. 820 E. Hackberry Ave. McAllen, TX 78501 (956) 683-6330 (956) 225-0406 (fax) brandy@appealsplus.com Counsel for Appellant

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)

This document complies with the typeface requirements of Tex. R. App. P.

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the

word-count limitations of Tex. R. App. P. 9.4(i), because it contains 4,499 words,

excluding the parts exempted by Rule 9.4.

/s/ Brandy Wingate Voss Brandy Wingate Voss

21

CERTIFICATE OF SERVICE

On March 11, 2015, in compliance with Texas Rule of Appellate Procedure

9.5, I served a copy of this document upon all other parties to the trial court’s

judgment and the respondent by first-class United States mail, return receipt

requested, properly posted and deliverable as follows:

Ted Hake Michael Morris Assistant District Attorney Appeals Section Office of Criminal District Attorney Hidalgo County, Texas 100 N. Closner, Rm 303 Edinburg, Texas 78539 Fax: (956) 380-0407 ted.hake@da.co.hidalgo.tx.us michael.morris@da.co.hidalgo.tx.us

Lisa C. McMinn John R. Messinger State Prosecuting Attorney Office of State Prosecuting Attorney of Texas P. O. Box 13046 Austin, Texas 78711-3046 Fax: (512) 463-5724

/s/ Brandy Wingate Voss Brandy Wingate Voss

22

APPENDIX

Elizondo v. State, Not Reported in S.W.3d (2014)

admitted to finishing a six-pack of beer. Maria did not drink at that time. The three then decided to go to Punto 3, a nightclub 2014 WL 222834

in Mission, Texas. Punto 3 was owned by Fermin Limon, Sr., Only the Westlaw citation is currently available.

his wife Nora, his son Fermin Limon, Jr. (Junior), and his SEE TX R RAP RULE 47.2 FOR daughter Mireya. Elizondo and Maria went home to change DESIGNATION AND SIGNING OF OPINIONS. and then proceeded to the bar. Juan was picked up by a friend and arrived later. All of the parties were at the bar MEMORANDUM OPINION by 12:45 a.m. At this point, the versions of what occurred Do not publish. Tex.R.App. P. 47.2(b). differ, therefore, we will summarize each relevant witness's Court of Appeals of Texas, testimony. Corpus Christi–Edinburg.

Jose Guadalupe Rodriguez ELIZONDO, Appellant, A. Jose Elizondo v. Elizondo, a customs agent employed by the United States The STATE of Texas, Appellee. Department of Homeland Security, testified that he arrived at the bar with his wife in his white Dodge pickup. He stated No. 13–12–00028–CR. | Jan. 16, 2014. that, as a licensed peace officer for the State of Texas, he has an assigned pistol from U.S. Customs. This pistol was On appeal from the 398th District Court of Hidalgo County, in the console of his pickup truck, as well as his credentials Texas.

identifying him as a federal agent. Elizondo explained that, Attorneys and Law Firms under federal law, he is authorized to carry a weapon at all times. He left his pistol and credentials in the car when he and Brandy M. Wingate, for Jose Guadalupe Rodriguez Elizondo. his wife entered the club.

Rene A. Guerra, for The State of Texas. Elizondo testified that he had gone into the bar and then went outside, when he saw his wife Maria exit the bar looking Before Chief Justice VALDEZ and Justices BENAVIDES “teary-eyed,” “emotional,” and “in distress.” He asked her and LONGORIA.

what was wrong and she said that someone pushed her “really ugly.” She pointed to the man who had allegedly pushed her, who turned out to be Junior. Elizondo asked Junior why MEMORANDUM OPINION he had pushed his wife, and he said Junior was cocky and aggressive towards him. Elizondo claimed that he did not Memorandum Opinion by Justice BENAVIDES.

know Junior worked at the bar because he was wearing a *1 Appellant, Jose Guadalupe Rodriguez Elizondo, was different shirt than the other Punto 3 employees—he thought convicted of murder and sentenced to twenty-five years Junior was just another customer. Elizondo called Junior a in prison at the Texas Department of Criminal Justice— curse word in Spanish and Junior responded by pushing him. Institutional Division. By two issues, Elizondo argues that: Elizondo pushed back. Then, Elizondo claimed that Rigo, (1) the evidence was legally insufficient to support the jury's another security employee, punched Elizondo on the right rejection of his self-defense argument and (2) the jury charge side of his face. Elizondo punched back, and then became was erroneous and harmful, requiring reversal. We affirm. enthralled in a brawl with at least four nightclub employees.

Elizondo believed that he could be killed if he fell to the ground, so as soon as he could, he ran to his truck. The distance from the bar to his truck was approximately seventy I. BACKGROUND

yards. Elizondo testified that he could not believe it when The undisputed facts reveal that, on August 8, 2010, appellant he realized his aggressors were following him. He stated that Elizondo, his brother Juan, and his wife Maria went to he heard, “Stop, asshole,” and that the men tried to trip his a barbeque at Elizondo's mother house. At the barbeque, boots, but he did not stop running. He ran past a fence to Elizondo, Juan, and Maria socialized. Elizondo testified that his car. While running, he pulled out the control to his truck he drank approximately two beers, while his brother Juan and unlocked his pickup. He testified that, at that time, he remembered he had his gun in the truck.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Elizondo v. State, Not Reported in S.W.3d (2014)

brother's back and began fighting with him. At that point, he *2 As soon as he arrived at his pickup, Elizondo testified heard his brother yell, “U.S. Customs” and “please put the that he got in, closed the door, and grabbed the gun from his gun down.” Then he heard two gunshots. console. He wanted to grab his credentials, too, but he claimed that Junior reached in and pulled him out of his truck. After being pulled out, Elizondo claimed he started hitting Junior C. Maria Elizondo to protect himself. Then, Elizondo's brother Juan arrived and Maria Elizondo, Elizondo's wife, confirmed that her husband pulled Junior off of him. At that point, Elizondo then saw and brother-in-law Juan had been drinking at their mother's a man approaching his vehicle with a gun. This person was home prior to going to Punto 3. After she and her husband Limon. Elizondo testified that Limon pointed the gun at him arrived at the Punto 3 nightclub, Juan handed her a margarita. and did not say anything. Elizondo claimed that he shouted to Maria and her husband then danced two songs. After dancing, Limon, “U.S. Customs” and told him to “throw the gun” about Maria talked to some friends while her husband went with two times. He claimed that Limon never lowered his gun. his brother. When Maria saw her husband exiting the bar, Elizondo fired, claiming he had “no other choice” because he she started to follow him out. She still had her drink in her was convinced Limon was going to shoot. hand. She testified that, as she approached the exit, a female employee working at the front entrance stated, “This stupid On cross-examination, the prosecution questioned Elizondo lady doesn't want to leave her drink behind.” Maria went with the statement he gave to police the night of the shooting. back and set her drink down at the bar, but stated that she Although Elizondo testified that he didn't remember he had was offended by the woman's words. She testified that as she his gun in his console until he began running to his truck, his was walking back towards the entrance, Junior arrived and statement provided that, “I ran towards my truck where I had grabbed her. Maria testified that he told her, “I know women my duty issued H & K 40 Caliber handgun.” The prosecution like you” and to “get out.” Then, according to Maria, Junior suggested that Elizondo ran to the truck specifically to pushed her and took her outside. Junior then went back into retaliate against the security guards with his gun. Elizondo the club. denied this assertion.

*3 Maria, upset, began looking for her husband outside. She noticed Junior had returned outside laughing and she thought B. Juan Elizondo he was making fun of her. She found her husband, pointed Juan, appellant's brother, testified that when he arrived at Junior out to him, and explained that Junior had pushed Punto 3 with his friend, Elizondo and his wife were already her inside. Maria stated that Elizondo then asked Junior, there. Juan said hello to some friends. He then bought a beer “Why were you pushing my wife?” A fight then ensued. for himself and his brother, and a mixed drink for his sister- Maria claims that a security guard punched her husband in-law Maria. He stated that he saw a fight erupt between two in the face, and that the men were yelling, grabbing, and women and that he tried to break up the fight, even though pushing. She said she yelled at the Punto 3 security guards to his brother told him “not to get involved.” Juan was escorted leave her husband alone. Then, she testified that her husband out of the building by Punto 3 security along with the two started running towards his truck and that the security guards fighting women. After explaining the situation to Limon, Sr., followed him, yelling, “Stop asshole!” She also testified that whom he thought was the head of security or a manager, he they were trying to trip him while he was running. was allowed back inside the club.

Maria ran to her husband's truck, where all the men had As soon as Juan entered, though, he testified that he noticed convened. She saw her husband pointing a gun saying, people running out. He heard a “commotion” and went “Lower your weapon. Lower your weapon.” She did not hear outside again, because he did not see his brother inside the him say that he was a U.S. Customs agent. Then, Maria heard club. He also thought he heard his sister-in-law Maria yelling. her husband's gun fire. When he got outside, Juan saw Maria “crying” and “yelling.” Juan saw “at least three guys hitting” Elizondo when his brother started running to his pickup truck. Juan testified D. Francisco Garcia that the three security guards followed his brother, so he Francisco Garcia worked at Punto 3 as a general employee. ran after them, too. When he arrived at Elizondo's truck, he His job responsibilities included setting up for the night, saw Elizondo and Junior struggling. He pulled Junior off his cleaning, working at the door to check for weapons and proper

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Elizondo v. State, Not Reported in S.W.3d (2014)

age identification, assisting with security, and performing witnessed Elizondo “looking for something in the console.” tasks as required by the Limon family. He carried a Junior “got to the truck and was hitting the window,” telling walkie-talkie and wore a microphone to be in constant him to “Get off asshole.” He said that then Juan, Elizondo's communication with his employers throughout the night. brother, grabbed Junior from behind. At that point, Elizondo got out and started hitting Junior with a gun on Junior's head Francisco testified that, at approximately 1:00 a.m. on August and forehead. When Elizondo brandished his gun, though, 9, 2013, he was summoned by intercom and through his Rigo left running, thinking he was going to be killed. He walkie-talkie to report to the bar section because a fight returned to the club and saw Limon, Sr. approaching the had broken out. He recalled that he, along with four other truck with a gun. Rigo said that Limon, Sr. had a gun in security guards, escorted two men and two women who had one hand and was making a gesture with the other hand been fighting to the nightclub's exit. He then returned to his as though to calm Elizondo down. He heard Elizondo say, assigned watch area that night, the stage area. Seconds later, “Get to the ground, son of a bitch. Get to the ground ... Francisco testified that he and all other security employees you dog.” According to Rigo, before Limon, Sr. could were alerted by their walkie-talkies to report outside. Outside, respond, Elizondo “instantly” fired his weapon. Rigo stated he noticed a group of people in a fight or “commotion.” He that Elizondo never identified himself as a federal agent that witnessed the defendant Elizondo run to a white truck. He worked for U.S. Customs. Rigo saw Limon, Sr. “walking, then witnessed some of his fellow employees follow Elizondo like, if he was in pain like it hurt,” and then fall down. and then bang on the window of Elizondo's truck. According to Francisco, Elizondo then got out of his truck and hit Junior. He then heard a gunshot and someone yelled, “Run. There's F. Fermin Limon, Junior a gun.” At that point, Francisco called 911, as he saw his Junior worked for the family business as a bartender. He co-workers running from the truck back to the club. He then testified that, on the night of the incident, his wife, who saw Limon, Sr. running alongside the fence towards the white worked at the front counter, informed him that a woman was truck. At that point, he did not see Limon, Sr. carrying a trying to leave Punto 3 with an alcoholic drink. This woman weapon. Once Limon, Sr. got closer to where his son, Junior, was later identified as Maria, the defendant's wife. Junior and Elizondo were, he noticed that Limon, Sr. and Elizondo claimed that he grabbed Maria's arm in an effort to stop her were pointing guns at each other. He heard Elizondo tell from leaving the premises with her drink, as the club would Limon, Sr. to get on the ground, but Limon, Sr. did not. be fined by the Texas Alcoholic Beverage Commission for Instead, he saw Limon, Sr. hold the gun with one hand and allowing that. He escorted her to the door and returned to make gestures with his other hand as if to calm Elizondo the bar. At that point, his mother asked him to go outside down. Francisco then heard more gunshots and saw Limon, and check on his father, as his father had exited when some Sr. fall. At that time, Francisco placed his second call to 911. patrons had been escorted outside.

Junior saw his father talking to two men and Maria. Maria, E. Rodrigo Hernandez Carrion according to Junior, was screaming, calling Junior “pendejo ” *4 Rodrigo Hernandez Carrion (Rigo) also worked at Punto and a “dumb ass.” Her husband, Elizondo, also called Junior 3 as a general employee. On the night of the incident, Rigo a “pendejo.” Junior took offense to this, and his father Limon, testified that he was called by walkie-talkie to remove some Sr. told Elizondo not to insult his son. Limon, Sr. pushed his women from the premises for fighting. Outside, he saw son back because Elizondo was being “aggressive.” Junior Limon, Sr. and Junior talking to two men and a woman. He testified that other employees, including Rigo and Francisco, said the woman (presumably Maria) was hysterical and being were now near the commotion. Junior said that one man, disrespectful to Junior, calling him “idiot, stupid, sons of either Elizondo or his brother Juan, then hit his father, Limon, bitches.” He heard Elizondo tell Junior, “Don't disrespect my Sr. Junior was shocked at this. Next, according to him, Rigo woman you son of a bitch” and “Well, son of a bitch, are you struck the man back with an open hand. After a skirmish, going to calm down or not?” Elizondo began running, and the club employees followed him. Junior heard Elizondo say, “Van a ver ” 1 while running, Rigo then testified that fighting started when Elizondo swung and Junior “got scared” because he felt it was “a threat.” at Limon, Sr. A brawl ensued. Rigo then witnessed Elizondo Junior kept following Elizondo because of this threat. run to his truck, get in, and “close [ ] the door and lock[ ] it.” Rigo followed, along with his fellow employees. Rodrigo

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Elizondo v. State, Not Reported in S.W.3d (2014)

*5 When Junior arrived at the truck, Elizondo was “inside particular offense for which the defendant was tried.” Id. A the truck ... searching around.” Junior began hitting the hypothetically correct murder charge in this case would have driver's side window. While banging on the window, he felt required the jury to find that Elizondo intentionally caused someone grab him from behind in a headlock. It was Juan, the death of Limon by shooting him with his gun. See TEX. Elizondo's brother. Then, Junior felt punches from both men. PENAL CODE ANN. § 19.02(b)(1) (West 2011). He heard a shot fired and then someone screamed that there was an “officer.” After the shot, the men let him go and he ran back to the club. He did not see his father until he crossed B. Applicable Law the fence. When he saw Limon, Sr. “all bloody on the floor,” With regard to Elizondo's self-defense argument, “a person he became hysterical. 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.” See id. § 9.31(a) (West II. LEGAL SUFFICIENCY 2011). The actor's belief that the force was immediately necessary is presumed reasonable if the actor knew or had A. Standard of Review reason to believe that the person against whom the force was In conducting a legal sufficiency review, we view the used was attempting to commit a felony, like murder in this evidence in a light most favorable to the verdict and case. Id. § 9.31(a)(1)(C).

ask “whether any rational trier of fact could have found the essential elements of the crime beyond a *6 The person who is claiming self-defense cannot have reasonable doubt.” Garcia v. State, 367 S.W.3d 684, 686–87 provoked the person against whom the force was used. Id.

(Tex.Crim.App.2012) (citing Jackson v. Virginia, 443 U.S.

§ 9.31(a)(2). The Texas Court of Criminal Appeals further 307, 319 (1979)). The trier of fact, in this case the jury, is the elaborated on the doctrine of provocation in Smith v. State:

sole judge of the credibility of witnesses and the weight, if any, to be given to their testimony. Id.; Brooks v. State, 323 Provoking the difficulty, as the S.W.3d 893, 899 (Tex.Crim.App.2010) (plurality op.). “The doctrine of provocation is commonly reviewing court must give deference to the responsibility of referred to in our jurisprudence, is the trier of fact to fairly resolve conflict in testimony, to a concept in criminal law which weigh the evidence, and to draw reasonable inferences from acts as a limitation or total bar on basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, a defendant's right to self-defense. 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318– The phrase “provoking the difficulty” 19). In a sufficiency review, “circumstantial evidence is as is a legal term of art, and more probative as direct evidence in establishing the guilt of an accurately translates in modern usage actor, and circumstantial evidence alone can be sufficient to “provoked the attack.” The rule of to establish guilt.” Id. “Each fact need not point directly law is that if the defendant provoked and independently to the guilty of the appellant, as long as another to make an attack on him, so the cumulative force of all the incriminating circumstances that the defendant would have a pretext is sufficient to support the conviction.” Id. If the record for killing the other under the guise of supports conflicting inferences, we presume that the fact self-defense, the defendant forfeits his finder resolved the conflict in favor of the verdict. Garcia, right of self-defense. 367 S.W.3d at 687; Brooks, 323 S.W.3d at 899.

965 S.W.2d 509, 512 (Tex.Crim.App.1998). The use of force We measure the sufficiency of the evidence supporting a against another is not justified if the actor provoked the conviction “by the elements of the offense as defined by other's use or attempted use of unlawful force, unless the actor the hypothetically correct jury charge for the case.” Malik abandons the encounter and the other nevertheless continues v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). “Such or attempts to use unlawful force against the actor. TEX. a charge would be one that accurately sets out the law, is PENAL CODE ANN. § 9.31(b)(4). authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the C. Discussion

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Elizondo v. State, Not Reported in S.W.3d (2014)

By his first issue, Elizondo complains that the evidence was necessary for reversal depends on whether the appellant legally insufficient to support the jury's rejection of his self- preserved the error by objection. Ngo, 175 S.W.3d at 743. defense argument. We disagree. A reasonable jury could have If the defendant properly objected to the erroneous jury believed that Elizondo provoked the fight, which made the charge, reversal is required if we find “some harm” to the self-defense argument unavailable. See Smith, 965 S.W.2d at defendant's rights. Id. (citing Almanza, 686 S.W.2d at 171). 512. Rigo testified that Elizondo told Junior, “Don't disrespect If no objection was made, we may only reverse if the record my woman, you son of a bitch” and “Well, son of a bitch, shows egregious harm. Id. at 743–44. “Errors that result in are you going to calm down or not?” Junior stated that egregious harm are those that affect ‘the very basis of the Elizondo called him “pendejo ” or “dumbass.” Then, both case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally Rigo and Junior testified that Elizondo swung, hitting Limon, affect a defensive theory.’ “ Cueva v. State, 339 S.W.3d 839, Sr. Viewing the evidence in the light most favorable to the 858–59 (Tex.App.-Corpus Christi 2011, pet. ref'd). verdict, we hold that a reasonable jury could have rejected Elizondo's self-defense argument because they believed that he provoked the initial difficulty. See id. B. Discussion Elizondo argues that the jury charge on self defense was Elizondo argues, however, that even assuming he provoked erroneous because it: (1) included a provocation instruction the initial difficulty, he abandoned this first encounter near over Elizondo's objection; (2) did not include all of the the bar by running to his pickup truck. This abandonment presumptions of reasonable force as provided by section 9.32 would thus make him eligible for the self-defense affirmative of the penal code; (3) improperly stated the provocation defense. See TEX. PENAL CODE ANN. § 9.31(b)(4) instruction; (4) failed to include an instruction on “threats as (providing that self-defense is available to a defendant who justifiable force”; and (5) failed to include any reference to leaves the altercation but is still pursued). However, we multiple assailants. We address each point in turn. conclude that a reasonable jury could have found otherwise. Junior testified that when Elizondo left the first difficulty and 1. Provocation Instruction ran to his pickup truck, he was yelling, “Van a ver,” roughly Elizondo asserts that the trial court committed error when translated as “You will see.” Junior was frightened by that it included a provocation instruction to the jury over his statement and believed it constituted a threat to him and his objection. In Matthews v. State, the Texas Court of Criminal co-workers. Further, the jury had Elizondo's police statement Appeals held that a provocation charge is proper when:

wherein he admitted that he “ran towards [his] truck where (1) self defense is an issue; (2) there are facts in evidence [he] had [his] duty issued H & K 40 Caliber handgun.” This which show that the deceased made the first attack on the evidence supports the jury's implied finding that Elizondo defendant; and (3) the defendant did some act or used some was running to his truck for his firearm, not to abandon or words intended to and calculated to bring on the difficulty discontinue the fight.

in order to have a pretext for inflicting injury upon the deceased. 708 S.W.2d 835, 837–38 (Tex.Crim.App.1986).

*7 We overrule Elizondo's first issue.

The determination to include the instruction “is limited to whether there is any evidence raising the issue.” Id. at 838. “Words alone may provoke the difficulty, thereby justifying III. JURY CHARGE ERROR a provocation charge.” Id. (citing Morrison v. State, 256 S.W.2d 410 (Tex.Crim.App.1953)).

In his second issue, Elizondo contends that the jury charge contained error. Here, there was some evidence to show that Elizondo provoked the fight. Rigo testified that Elizondo told Junior, “Don't disrespect my woman, you son of a bitch” and “Well, A. Standard of Review son of a bitch, are you going to calm down or not?” Junior In analyzing a jury charge issue, or initial inquiry is stated that Elizondo called him a “pendejo ” or “dumbass.”

whether error exists in the charge submitted to the jury.

Then, both Rigo and Junior testified that Elizondo swung, Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005)

hitting Limon, Sr. These words and actions constituted (en banc); Almanza v. State, 686 S.W.2d 157, 171 “some” evidence that Elizondo provoked the first difficulty.

(Tex.Crim.App.1985). If error is found, the degree of harm

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Elizondo v. State, Not Reported in S.W.3d (2014)

*8 As noted earlier, however, the provocation doctrine provided by section 9.32 of the penal code. TEX. PENAL is limited if the defendant abandoned the difficulty. See CODE ANN. § 9.32. The jury charge only provided that Smith, 965 S.W.2d at 513 n. 1 (citing TEX. PENAL CODE a presumption of reasonableness would arise if Elizondo ANN. § 9.31(b)(4)). Elizondo argues he “abandoned” the “knew or had reason to believe that the person against encounter by running from the difficulty outside the bar to [whom] deadly force was used was committing or attempting his pickup truck, nearly seventy yards away. Therefore, he to commit murder.” Id. § 9.32(b)(1)(C). Elizondo argues contends that the provocation instruction was improper. To that two additional scenarios should have been added to achieve the abandonment caveat to the provocation doctrine, the charge. First, where the actor knew or had reason to though, it is “necessary that the intention to abandon the believe an assailant “unlawfully and with force entered, difficulty be, in some manner, communicated by the appellant or was attempting to enter unlawfully and with force, the so as ‘to advise his adversary that his danger has passed, actor's occupied habitation, vehicle, or place of business and make his conduct thereafter the pursuit of vengeance or employment.” Id. § 9.32(b)(1)(A). And second, where rather than measures to repel the original assault.’ “ Ervin the actor “(B) unlawfully and with force removed, or was v. State, 367 S.W.2d 680, 684 (Tex.Crim.App.1963); see attempting to remove unlawfully and with force, the actor also TEX. PENAL CODE ANN. § 9.31(b)(4) (providing from the actor's habitation, vehicle, or place of business or that abandonment must be “clearly communicated”). Further, employment.” Id. § 9.32(b)(1)(B). “the abandonment of the difficulty by the defendant does not arise where the difficulty was continuous, the only change *9 Elizondo complains that he knew or had reason to being in the position of the parties during the progress of the believe that Junior unlawfully and with force pulled him out encounter.” Ervin, 367 S.W.2d at 683–84 (citing Campbell v. of his pickup truck, or was attempting to do so. He stated State, 84 Tex.Crim. 89, 91, 206 S.W. 348 (1918)). that Junior's banging on Elizondo's driver's side window yelling “Get off asshole” meant that he was entitled to those While it is undisputed by all of the witnesses that Elizondo instructions. ran nearly seventy yards away from the first difficulty, Junior testified that Elizondo was yelling, “Van a ver,” roughly We agree that the evidence in the record warranted the translated as “You will see,” while running. Junior testified inclusion of these instructions. Accordingly, we hold that that he believed that Elizondo's words constituted a threat to the trial court erred by omitting them. Having found error, the others, which made Junior scared. These words did not though, we do not find any egregious harm. 2 Ngo, 175 communicate to Junior that the danger had passed. See id. at S.W.3d at 743–44. Because we previously concluded that 684. Further, the jury was presented with Elizondo's statement a reasonable jury could have found that Elizondo was not to the police which provided that he “ran towards [his] truck entitled to a self-defense argument because he provoked where [he] had [his] duty issued H & K 40 Caliber handgun.” the initial difficulty and did not abandon the encounter, see This evidence supports a rational inference that Elizondo was section III(B)(1) supra, these extra instructions would not running to his truck for a weapon, not to escape the fight. have affected the outcome. See TEX.R.APP. P. 44.2. We See id. at 683–84 (providing that one does not abandon a overrule this issue. difficulty by merely changing positions). Accordingly, we find that a reasonable jury could have surmised that Elizondo did not abandon the first encounter, and that the provocation 3. Improper Provocation Instruction instruction was therefore merited. Elizondo also argued that the provocation instruction changed the State's burden of proof by instructing the jury to find We conclude that the trial court did not err when it submitted Elizondo guilty of murder if he provoked the difficulty. The the provocation instruction to the jury because there was charge provided as follows: sufficient evidence to raise this issue. Matthews, 708 S.W.2d at 838. Because we have found no error, no harm analysis is So, in this case, if you find and required. Ngo, 175 S.W.3d at 743. We overrule this issue. believe from the evidence beyond a reasonable doubt that the defendant, Jose Guadalupe Rodriguez Elizondo, 2. Presumptions of Reasonable Force immediately before the difficulty, then Elizondo also argues that the trial court erred when it failed and there did some act, or used to include all of the presumptions of reasonable force as some language, or did both, as the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Elizondo v. State, Not Reported in S.W.3d (2014)

case may be, with the intent on bodily injury by the production of a his, the defendant's part to produce weapon or otherwise, as long as the the occasion for killing the deceased, actor's purpose is limited to creating an Fermin Limon, and to bring on the apprehension that he will use deadly difficulty with the said deceased, and force if necessary, does not constitute that such words and conduct on the the use of deadly force. defendant's part, if there were such, were reasonably calculated to, and did, TEX. PENAL CODE ANN. § 9.04. It is undisputed, however, provoke the difficulty, and that on that Elizondo did not request this instruction. In Posey v. such account the deceased attacked State, the Texas Court of Criminal Appeals held as follows: the defendant with deadly force, or Article 36.14 [of the Texas Code of reasonably appeared to defendant to Criminal Procedure] ... mandates that so attack him or to be attempting to a trial court submit a charge setting attack him, and that the defendant then forth the law “applicable to the case.”

killed the said Fermin Limon by use The question in this case is whether of deadly force, to wit, by shooting this imposes a duty on trial courts him with a firearm, in pursuance of to sua sponte instruct the jury on his original design, if you find there unrequested defensive issues. We hold was such design, then you will find the Article 36.14 imposes no such duty.

defendant guilty of murder.

966 S.W.2d 57, 62 (Tex.Crim.App.1998). “Though the (Emphasis added). At trial, Elizondo argued that “the jury evidence might raise a defensive issue, it does not necessarily should have been instructed, however, that if it found follow that a trial court has a duty to sua sponte instruct the provocation, it should reject self-defense.” We agree and hold jury on that issue when the defendant does not request such that this instruction was erroneous.

an instruction.” Id. Elizondo failed to make this request, so we overrule this issue.

Having found error, we turn to a harm analysis. Almanza, 686 S.W.2d at 171. To determine if Elizondo suffered some harm by this incorrect instruction, we consider “the entire 5. Failure to Include a Multiple Assailant Instruction jury charge, the state of the evidence, including the contested Finally, Elizondo asserts that the trial court erred when it issues and weight of probative evidence, the argument of failed to include a multiple assailant instruction in the jury counsel and any other relevant information revealed by the charge. The Texas Court of Criminal Appeals “has held that record of the trial as a whole.” Id. Upon a thorough review a charge which is confined only to the right of self-defense of the trial record and jury charge, though, we find no harm. against the deceased is too restrictive if there is evidence that From voir dire to closing arguments, the jury was repeatedly more than one person attacked the defendant.” Frank v. State, instructed that it was the State's burden to prove that Elizondo 688 S.W.2d 863, 868 (Tex.Crim.App.1985) (citing Sanders v. committed murder. The jury charge reinforced this tenet. In State, 632 S.W.2d 346 (Tex.Crim.App.1982)). “Accordingly, light of the foregoing, we hold that the error was harmless and a defendant is entitled to a charge on the right of self-defense overrule this issue. against multiple assailants if there is evidence, viewed from the accused's standpoint, that he was in danger of an unlawful attack or a threatened attack at the hands of more than one 4. Instruction on “Threats as Justifiable Force”

assailant.” Id. (internal quotations omitted).

*10 Elizondo also argues that it was error to fail to include an instruction on “threats as justifiable force.” Texas Penal Again, however, Elizondo did not ask for this instruction.

Code section 9.04 provides that:

Although the evidence at trial raised this issue, with various the threat of force is justified when witnesses testifying that Elizondo and his brother Juan fought the use of force is justified by this with at least three Punto 3 employees, the trial court did chapter. For purposes of this section, not have a sua sponte duty to include a multiple assailant a threat to cause death or serious

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Elizondo v. State, Not Reported in S.W.3d (2014)

Having overruled all of Elizondo's issues, we affirm the trial instruction when it was not requested. See Posey, 966 S.W.2d court's judgment.

at 62. We overrule this issue.

IV. CONCLUSION

Footnotes 1 Literal translation: “you all will see.” 2 Elizondo's counsel failed to object to the omissions in this instruction.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8