Affirmed as Modified and Opinion Filed January 19, 2018
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00925-CR
EUGENE CAMARILLO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F15-24066-Y
MEMORANDUM OPINION Before Justices Francis, Evans, and Boatright Opinion by Justice Francis A jury convicted Eugene Camarillo of aggravated assault with a deadly weapon and
assessed punishment, enhanced by a prior felony conviction, at forty-five years in prison. In six
issues, appellant complains (1) the trial court erred by giving supplemental instructions to the
jury during deliberations and by denying his requests for a mistrial, (2) the evidence is legally
insufficient to support the jury’s rejection of his claim of self-defense, and (3) the trial court
erred by failing to instruct the jury on the lesser-included offense of assault. For reasons that
follow, we overrule appellant’s issues. The State has notified us of two errors in the judgment.
We modify the trial court’s judgment to correct those errors and affirm the judgment as
modified. Leticia Cermenio and Louis Granado ended their relationship after dating for twelve
years. They remained friends, and Granado also stayed in contact with Cermenia’s teen-age
daughter, A.C., with whom he was particularly close. In October 2014, Cermenio began dating
appellant. Evidence was conflicting as to whether the two were still together in May 2015 when
Cermenio allowed Granado to stay at her home temporarily because he had no place to live.
Regardless, Cermenio did not tell appellant that Granado was staying with her.
On June 4, 2015, Cermenia told Granado she wanted him to leave her house by that
afternoon. After Granado got off work, he went back to the house. Cermenia was not there.
A.C. had invited several friends over to practice a dance for her upcoming quinceanera so
Granado went to Cermenia’s bedroom to allow the children to practice in the living room. He fell
asleep on the bed while washing clothes and watching television.
When A.C.’s friends began arriving, two of them saw a man suspiciously walking around
the house, peering through the windows. When the man saw them, he walked off. About fifteen
minutes later, the man jumped the backyard fence and burst through the back door into the
house. The girls testified the man was the same person who had been looking through the
windows. A.C. identified the man as appellant.
A.C. said appellant looked angry when he entered the house, said nothing, and walked
quickly down the hallway to her mother’s bedroom. A.C. “heard yelling” and followed
appellant. When she opened the bedroom door, she saw Granado standing in the far corner of
the room holding his chest; she said he looked scared. Appellant was standing in another area of
the room and he looked angry. A.C. ordered appellant to leave. As he was leaving, she noticed
he had a pocket knife in his hand with blood on the blade. A.C. said appellant “jerked” the knife
at her. After appellant left, A.C. realized Granado had been stabbed in the chest. She told her
friends to call 911.
–2– Granado testified he was asleep when he heard the bedroom door open and then felt a jab
to his chest, which “knocked the air” out of him. Granado rolled off the bed to the corner of the
room to figure out what was going on. He looked down and saw blood coming from his chest
and looked up to see a man, later identified as appellant, holding a pocket knife. Granado
realized appellant had stabbed him. Appellant said something “like, do you want to “F” with my
girlfriend, or do you want to “F” with me?”
Granado said he was in fear for his life and believed appellant might have “finished [him]
off” if A.C. had not rushed into the room. Granado was transported to the hospital, where he
stayed for two weeks. He sustained a stab wound to his chest that punctured his lung and missed
his heart by an inch. He had two other stab wounds, one to his elbow and another to his upper
back left leg. Granado said he had never seen the knife appellant used to stab him. Granado
carried a utility knife for his work as an electrician but said he did not have it with him when he
was attacked. A crime scene photograph showed the utility knife on the ironing board in the
bedroom. On cross-examination, he agreed a photograph seemed to show blood dripping down
the wall near the ironing board, but he denied using his knife in the attack. He also
acknowledged he did not tell police in his statement that he was sleeping at the time of the attack
and agreed photographs appear to show a struggle occurred.
Police on the scene saw blood in the entry way and in the bedroom. Detective J.D.
Hammett said he visited appellant in the hospital and saw defensive wounds on this arms. He
interviewed Cermenia and the other people at the house that day. Appellant was eventually
arrested four months later at Cermenia’s house.
Cermenia testified for the defense. She said she and appellant were in a relationship and
she considered him her husband. She was afraid of Granado because of her past history with him
and told appellant about Granado’s reputation for being violent. Cermenia told the jury it was
–3– her understanding Granado attacked appellant with Granado’s knife; the description of the knife
sounded like one owned by Granado. She and appellant were dating in June 2015 and he had
permission to be in her house.
Cermenia’s testimony conflicted with her statement given to the police two weeks after
the stabbing. In that statement, she blamed appellant for the stabbing. She told police she
stopped seeing him a month earlier after asking him to leave a party. She said appellant wanted
to be with her all the time and she “didn’t have time for that.” At trial, she said she gave the
police the statement blaming appellant because of her fear of Granado but acknowledged never
telling the police or prosecutors of that fear. She denied changing her story after appellant
learned what she had told the police.
In his fifth issue, appellant challenges the sufficiency of the evidence to support the jury’s
rejection of his self-defense claim. Appellant argues Granado’s testimony that he was the victim
of an unprovoked attack is not credible and that it was a reasonable deduction from the evidence
that appellant used Granado’s knife in self-defense. As support, he relies on (1) Granado’s
testimony that he had a pending criminal case in Dallas County that prosecutors had agreed to
dismiss after a certain period of time and certain conditions and (2) Cermenia’s testimony that
Granado had a violent reputation, the description of the knife used to stab Granado sounded like
a knife that belonged to Granado, and it was her understanding that Granado attacked appellant.
Finally, he argues A.C. and her friends were not in the bedroom and could not testify as to what
actually occurred.
As charged in this case, a person commits an assault if he intentionally or knowingly
causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2017). An
assault becomes aggravated when the person uses or exhibits a deadly weapon during the
commission of an assault. Id. § 22.02(a)(2) (West 2011).
–4– With certain exceptions, a person is justified in using force against another when and to
the degree he reasonably believes the force is immediately necessary to protect himself against
the other’s use or attempted use of unlawful force. Id. § 9.31(a). A person is justified in using
deadly force against another (1) if he would be justified in using force against another under
section 9.31 and (2) when and to the degree he reasonably believes the deadly force is
immediately necessary to protect himself against the other's use or attempted use of unlawful
deadly force. Id. § 9.32(a); see also Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)
(term “reasonably believes” in section 9.32 encompasses traditional holding that suspect is
justified in defending against danger as he reasonably apprehends it). “Deadly force” means
force that is intended or known by the actor to cause, or in the manner of its use or intended use
is capable of causing, death or serious bodily injury. TEX. PENAL CODE ANN. § 9.01(3).
“Reasonable belief” means a belief that would be held by an ordinary and prudent person in the
same circumstances as the actor. Id. § 1.07(a)(42) (West Supp. 2017).
The defendant has the initial burden of producing evidence to raise self-defense. Zuliani
v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 914
(Tex. Crim. App. 1991). If the defendant produces some evidence, the State has the burden of
persuasion to disprove the raised defense. Zuliani, 92 S.W.3d at 594; Saxton, 804 S.W.2d at 914.
The State is not obligated to offer evidence refuting a claim of self-defense; rather, the State is
required to prove its case beyond a reasonable doubt. Zuliani, 92 S.W.3d at 594; Saxton, 804
S.W.2d at 913–14. If the jury finds the defendant guilty, then it implicitly finds against the
defensive theory. Zuliani, 97 S.W.3d at 594.
In reviewing the sufficiency of the evidence to support the factfinder’s rejection of self-
defense, we do not look at whether the State presented evidence refuting self-defense. Rather,
we determine whether, after reviewing all the evidence in the light most favorable to the verdict,
–5– any rational trier of fact would have found the essential elements of the offense beyond a
reasonable doubt and also would have found against the appellant on the self-defense issue
beyond a reasonable doubt. Saxton, 804 S.W.2d at 914. In making this review, we keep in mind
that the trier of fact is the sole judge of the weight and credibility of the evidence. See Kirk v.
State, 421 S.W.3d 772, 776 (Tex. App.—Fort Worth 2014, pet. ref’d).
Here, the evidence showed appellant went to Cermenia’s house and peered through the
windows before jumping the backyard fence and bursting through the back door. He stalked
down the hallway to the bedroom where Granado said he was sleeping and stabbed him in the
chest. Just moments later, A.C. went into the bedroom to find an angry appellant and an injured
Granado. From this evidence, a rational jury could have concluded appellant went to Cermenia’s
home with a knife and, in an unprovoked attack, stabbed Granado. Although appellant’s defense
was that Granado attacked him with Granado’s knife, the jury could, and did, reject his self-
defense claim after resolving any conflicts and weighing the witnesses’ credibility. Reviewing
all the evidence, we conclude a rational jury would have found the essential elements of the
offense beyond a reasonable doubt and also would have found against the appellant on the self-
defense issue beyond a reasonable doubt. We overrule the fifth issue.
In his sixth issue, appellant contends the trial court erred in refusing to submit a jury
instruction on the lesser-included offense of assault. Appellant argues that with the instruction,
the jury would have been allowed to believe he went to the “confrontation empty-handed and
assaulted Granado, but did so without the intent to use a deadly weapon.” He contends this
“would have allowed the jury to believe the testimony that the deadly weapon belonged to
Granado and that appellant came to assault Granado, but that he did so without a weapon.”
A defendant is entitled to an instruction on a lesser-included offense if the proof
necessary to establish the charged offense also includes the lesser offense and if the record
–6– contains some evidence that would permit a rational jury to find that, if the appellant is guilty, he
is guilty only of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App.
2012). The second step is a question of fact and is based on evidence presented at trial. Id. at
383. A defendant is entitled to such an instruction if some evidence exists from any source
raising the issue, regardless whether the evidence is weak, impeached, or contradicted. Id. We
review the trial court’s decision for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654,
666 (Tex. Crim. App. 2004).
Here, the difference between the charges of assault and aggravated assault is whether a
deadly weapon was used or exhibited. And, there is no evidence, from any source, that appellant
did not use or exhibit a deadly weapon. The evidence showed appellant stabbed Granado
multiple times, including a stab wound to his chest that punctured his lung and narrowly missed
his heart. Appellant’s argument is premised on the theory that the knife belonged to Granado
and he did not go into the room with the intent on stabbing Granado. But, regardless of who the
knife belonged to, the evidence showed appellant used or exhibited it during the offense.
Because the record does not support the theory that appellant caused Granado bodily injury but
did not use a deadly weapon, the trial court correctly determined assault was not a valid, rational
alternative to the charged offense. We overrule the sixth issue.
The remaining four issues involve supplemental instructions given to the jury once it
indicated it could not reach a verdict. Appellant argues the instructions pressured a hold-out
juror to change his or her vote to guilty, thus coercing a unanimous decision. He argues the trial
court should have instead granted a mistrial. After reviewing the record, we cannot agree.
The record shows the jury began deliberating on a Friday afternoon at 4:40 p.m. At 6
p.m., the trial court went on the record and read the jury’s first note: “Does this have to be a
unanimous decision? We are at 11 to 1.” The court proposed the following response: “Yes, your
–7– verdict must be unanimous. You have received all the law and evidence in this case. Please
continue your deliberations.” Defense counsel objected the response implied “that one believes
one way that is different from the eleven” and “has to change his or her vote.” Defense counsel
suggested the court submit, “You have all the instructions you need in the Court’s charge.” The
trial court overruled the objection and gave the instruction.
The jury then deliberated from 6:10 p.m. to 7 p.m., before sending a second note:
“Judge, we are still at 11/1 guilty. How do we move forward, please?” With no objections, the
trial court responded as follows:
Members of the jury, if this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. Any such future jury will be empaneled in the same way this jury has been empaneled and will likely hear the same evidence which has been presented to this jury.
With this additional instruction, you are requested to continue your deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury, if you can do so without doing violence to your conscience. Don’t do violence to your conscience but continue deliberating.
After sixteen minutes of further deliberations, the jury sent its third note: “Judge, we
apologize. We’re not able to arrive at a unanimous decision. However, the one person that
strongly feels Eugene is not guilty may suffer violence to their conscience if they change their
mind.” The trial judge decided to send the jury home for the weekend and return at 9 a.m.
Monday, stating she did not believe an Allen charge was necessary “at this point.” Defense
counsel asked for a mistrial. The judge denied the motion, stating, “They just started deliberating
at 4:40. It’s 7:15 now. I’ll allow them to deliberate on Monday. And depending on when they
either come back or send out another note or what it says, I’ll entertain that.”
The jury returned the following Monday morning and sent the following note: “Is all the
blood on the bed from Louis? Did Eugene sustain any injuries?” Without objection, the trial
–8– court responded that the jury had received all the law and evidence in the case and to continue
deliberating.
After continuing deliberations, the jury sent its final note, which read: “Judge, once
again, we apologize. We are not able to arrive at a unanimous decision. We will have to allow
another jury to try this case.” The note is time-stamped 10:10 a.m. The trial judge stated her
intent to respond with an Allen charge. Defense counsel objected, saying it sounded from the
language of the note that “they have committed themselves to being deadlocked,” and requested
a mistrial. The judge denied the mistrial, but said if the jury had no resolution after a “reasonable
period,” she would reconsider the motion. At 10:50 a.m., the judge issued the following
supplemental charge:
MEMBERS OF THE JURY;
This case has been tried very ably by both sides, and all the evidence either side has brought has been placed before you for your consideration, and a Jury must decide this case.
You have been selected by a very careful process of selection and have listened attentively and observed carefully the evidence throughout the trial.
Although the verdict of the Jury must represent the opinion of each individual juror, it by no means follows that the opinions of individual jurors held at one time may not be changed through jury deliberations by conference with fellow jurors. The very object of the jury system is to secure unanimity by comparison of views and consideration of the opinions of one’s fellow jurors. Each juror should listen, with deference, to the arguments of the other jurors, and no juror should go into the Jury Room with a blind determination that the verdict of the entire jury should represent his or her opinions of the case or with closed ears to the arguments of other jurors equally honest, intelligent and dedicated. Do not do injustice to your own personal opinions but do listen and consider the opinions of your fellow jurors in your deliberations upon a unanimous verdict.
If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. Any such future jury will be impaneled in the same way this jury has been impaneled and will likely hear the same evidence which has been presented to this jury. The questions to be determined by that jury will be the same questions confronting you, and there is no reason to hope the next jury will find these questions any easier to decide than you have found them. –9– The law provides that the jury shall be kept together for such a time as to render it altogether improbable that it can agree, and only the Judge of this Court can make that determination.
With this additional instruction, you are instructed to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of the jury, if you can do so without doing violence to your conscience. Don’t do violence to your conscience, but continue deliberating.
The jury returned a guilty verdict twenty-five minutes later, at 11:15 a.m.
In his first issue, appellant contends the trial court erred in overruling his objection to the
supplemental instruction given after the first jury note asked whether the decision had to be
unanimous and informing the court of an 11-1 split. The instruction informed the jury the
verdict had to be unanimous. A jury in a criminal case must be unanimous in finding every
constituent element of the charged offense. See Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim.
App. 2007). Thus, the trial court’s response to the first jury note correctly responded to the
jury’s question. Additionally, the trial court properly referred the jury to its previous
instructions, stating they “received all the law and evidence in this case.” We overrule the first
issue.
The remaining three issues concern the trial judge’s actions once the jury informed her it
was deadlocked. In his second and third issues, appellant complains the trial judge erred in
denying his motions for mistrial after (1) the jury’s third note saying it was deadlocked and
stating “one juror would suffer violence to their conscience if they were to change their mind”
and (2) after the jury’s fourth note in which it again stated they were deadlocked and unable to
arrive at a unanimous decision, and that another jury would have to try the case. In his fourth
issue, he contends the trial judge erred in overruling his objection to the Allen instruction given
after the fourth jury note because it was “coercive” and violated due process and his right to a
fair trial under the United States Constitution. He does not separately address these issues but
argues them as one.
–10– An appellate court reviews a trial court’s ruling on a motion for mistrial for an abuse of
discretion and must uphold the ruling if it is within the zone of reasonable disagreement. Ladd v.
State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). After a case is submitted to the jury, the court
may, in its discretion, discharge the jury and declare a mistrial where it has deliberated so long
that it becomes altogether improbable that it will agree. TEX. CODE CRIM. PROC. ANN. art. 36.31
(West 2006); Montoya v. State, 810 S.W.2d 160, 167 (Tex. Crim. App. 1989); Draper v. State,
335 S.W.3d 412, 416 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). However, there is no
time limit on the length of time a jury may deliberate. Draper, 335 S.W.3d at 416. Length of
time the jury may be held for deliberation rests in the trial court’s discretion. Montoya, 810
S.W.2d at 166. When reviewing the trial court discretion in this regard, we consider the length
of the trial and amount of evidence presented to the jury. Howard v. State, 941 S.W.2d 102, 120
(Tex. Crim. App. 1996), overruled on other grounds by Easley v. State, 424 S.W.3d 535 (Tex.
Crim. App. 2014).
The record shows the jury first indicated trouble reaching a verdict after deliberating only
one hour and twenty minutes, asking the court if its verdict needed to be unanimous. Over the
next sixty-six minutes, the jury sent out two more notes, both indicating jurors were stuck on an
11-1 vote. After the second of these notes, appellant moved for mistrial, but the trial court
denied that request and instead sent the jury home for the weekend, noting they had been
deliberating only two and a half hours. A trial court is not bound to declare a mistrial at the first
sign of jury impasse. Howard,, 941 S.W.2d at 120. The jury returned the following Monday and
sent a note regarding the evidence. After the trial court responded, they deliberated for no more
than an hour before sending a note informing the court they were unable to arrive at a unanimous
decision and another jury would have to hear the case. At this point, the trial court gave a full
Allen charge and denied defense counsel’s request for a mistrial. The trial in this case took three
–11– days, including two days of testimony with eight witnesses and fourteen exhibits. The jury had
to decide whether appellant’s knife attack on Granado was in self-defense. Given the nature of
the case, the length of the trial, and the amount of evidence presented, we cannot conclude the
trial court abused its discretion by denying the motions for mistrial and ordering the jury to
continue deliberations. See Melancon v. State, 66 S.W.3d 375, 383–84 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d) (op. on reh’g en banc) (no abuse of discretion in ordering jury to
continue deliberating when it reported deadlock after four and a half hours in aggravated robbery
trial); Matthews v. State, 691 S.W.2d 2, 5 (Tex. App.––Beaumont 1984), aff'd on other
grounds, 708 S.W.2d 835 (Tex. Crim. App. 1986) (no abuse of discretion in denying motion for
mistrial when jury reported deadlock after ten hours of deliberation following trial with
seventeen witnesses, forty-nine exhibits, and multiple issues for the jury to resolve); Moses v.
State, No. 14–99–00377–CR, 2004 WL 78162, at *1 (Tex. App.––Houston [14th Dist.] Jan. 20,
2004, no pet.) (mem. op., not designated for publication) (no abuse of discretion in denying
motion for mistrial when jury reported deadlock after eight hours of deliberation following four-
and-a-half-hour bribery trial).
Nor can we conclude the trial court erred by giving the full Allen charge after the jury had
been deliberating for three and a half hours. An Allen charge is a supplemental charge
sometimes given to a jury that declares itself deadlocked. Allen v. United States, 164 U.S. 492,
501 (1896); Barnett v. State, 189 S.W.3d 272, 276 n.13 (Tex. Crim. App. 2006). The charge
reminds the jury that if they are unable to reach a verdict, a mistrial will result, the case will still
be pending, and there is no guarantee that a second jury would find the issue any easier to
resolve. Allen, 164 U.S. at 501; Barnett, 189 S.W.3d at 276 n.13. While such a charge is
permissible in both the federal system and Texas courts, a trial court must be careful to word and
administer the charge in a noncoercive manner. Barnett, 189 S.W.3d at 276 n.13.
–12– An Allen charge jury instruction will constitute reversible error only if, on its face, it is so
improper as to render jury misconduct likely or jury misconduct is demonstrated to have
occurred in fact. West v. State, 121 S.W.3d 95, 107 (Tex. App.—Fort Worth 2003, pet. ref’d).
To prevail on a complaint that an Allen charge is coercive, an accused must show that jury
coercion or misconduct likely occurred or occurred in fact. Id. An Allen charge is unduly
coercive and therefore improper only if it pressures jurors into reaching a particular verdict or
improperly conveys the court’s opinion of the case. Arrevalo v. State, 489 S.W.2d 571 (Tex.
Crim. App. 1973); West, 121 S.W.3d at 107–08.
Although appellant argues the judge “influenced the jury’s vote by telling one juror that
he or she had to change his principled moral decision” and coerced unanimous decision, the
record does not support his argument. While the judge clearly knew the numeric division and
the one vote was to acquit, the charge did not pressure the one holdout juror into reaching a
particular verdict. The charge did not identify the holdout juror or suggest, implicitly or
explicitly, that he was the person who needed to reexamine his perspective. Howard, 941
S.W.2d at 123–24 (although trial judge was aware of the numerical division when he gave
supplemental Allen charge, he “did not directly address the minority juror and did not shade the
instruction with coercive nuance;” thus, in context, the charge was noncoercive). Rather, the
instruction stated the verdict represented “the opinion of each individual juror” while
acknowledging that opinions can change through the deliberation process. It instructed all jurors
to listen, with deference, to the arguments of other jurors, but to do so without doing injustice to
one’s own opinions. It also, appropriately, informed the jury that if it did not reach a decision,
another jury would be impaneled to decide the same questions. Having reviewed the
supplemental charge, we conclude it was not coercive. We overrule the second, third, and fourth
issues.
–13– Finally, although the record reflects appellant pleaded true to an enhancement paragraph
alleged in the indictment, the judgment lists the notation “N/A” in the sections for “Plea to 1st
Enhancement Paragraph” and “Findings of 1st Enhancement Paragraph.” We have the authority
to correct a judgment below to make the record “speak the truth” when we have the necessary
data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991,
pet. ref’d). Accordingly, we modify the judgment to reflect appellant pleaded true to the
enhancement paragraph and the paragraph was found true.
As modified, we affirm the trial court’s judgment.
/Molly Francis/ MOLLY FRANCIS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 160925F.U05
–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
EUGENE CAMARILLO, Appellant On Appeal from the Criminal District Court No. 7, Dallas County, Texas No. 05-16-00925-CR V. Trial Court Cause No. F-1524066-Y. Opinion delivered by Justice Francis; THE STATE OF TEXAS, Appellee Justices Evans and Boatright participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect a plea of True and a finding of True to the 1st Enhancement Paragraph.
As REFORMED, the judgment is AFFIRMED.
Judgment entered January 19, 2018.
–15–