March 16, 2015
No. PD-1039-14
Court of Criminal Appeals of Texas
JOSE GUADALUPE RODRIGUEZ ELIZONDO,
Appellant
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
BRIEF ON THE MERITS
Brandy Wingate Voss
State Bar No. 24037046
SMITH LAW GROUP, P.C.
820 E. Hackberry Ave.
McAllen, Texas 78501
(956) 683-6330 (Telephone)
(956) 225-0406 (Fax)
brandy@appealsplus.com
Counsel for Appellant Jose Guadalupe Rodriguez Elizondo
ORAL ARGUMENT REQUESTED
IDENTIFY OF JUDGE, PARTIES, AND COUNSEL
Trial Court Judges Hon. Aida Salinas Flores
Hon. Linda Yañez sitting by assignment
Appellant Counsel for Appellant
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 Counsel for Appellee
State of Texas Lisa C. McMinn
State Prosecuting Attorney
Office of State Prosecuting Attorney of
Texas
P. O. Box 13046
Austin, Texas 78711-3046
Ted Hake
Michael Morris
Hidalgo County District Attorney’s
Office
Assistant District Attorneys—Appeals
Division
100 N Closner Rm 303
Edinburg, TX 78539
i
Trial Counsel
Rolando Cantu
Criselda Rincon-Flores
Hidalgo County District Attorney’s
Office
Asst. Criminal District Attorneys
100 N. Closner
Edinburg, Texas 78539
ii
TABLE OF CONTENTS
Identify of Judge, Parties, and Counsel ......................................................................i
Index of Authorities ..................................................................................................vi
Statement of the Case................................................................................................ix
Statement Regarding Oral Argument ........................................................................ x
Issues Presented ......................................................................................................... x
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?
[UNBRIEFED ISSUE PER THE COURT’S REQUEST]
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? [BRIEFED ISSUE PER THE COURT’S
REQUEST]
iii
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? [BRIEFED ISSUE PER
THE COURT’S REQUEST]
Statement of Facts ...................................................................................................... 1
1. Elizondo goes to Punto 3 Nightclub with his family, and the
first altercation occurs outside the nightclub. ....................................... 2
A. The Limon family owns Punto 3 Nightclub. .............................. 2
B. Two women get into a fight at Punto 3 and are escorted
out; Elizondo and his brother Juan follow them outside. ........... 2
C. Maria tells Elizondo that Junior treated her badly, and the
first altercation occurs outside the club. ..................................... 5
2. Elizondo runs away from the altercation, attempting to flee, but
Punto 3 employees chase him almost seventy yards to his truck. ........ 9
3. A second altercation occurs at Elizondo’s truck. ................................ 12
4. Limon threatens Elizondo with deadly force, pointing a gun at
him, and Elizondo shoots him. ............................................................ 15
5. Testimony on the reasonableness of Elizondo’s conduct ................... 20
6. The trial court submits a provocation instruction over
Elizondo’s objection and submits a self-defense charge that is
inaccurate and incomplete. .................................................................. 24
7. The jury finds Elizondo guilty, and sentences him to twenty-
five years in prison. ............................................................................. 27
iv
8. The Court of Appeals affirms.............................................................. 27
Summary of the Argument....................................................................................... 32
Argument.................................................................................................................. 34
I. The court of appeals should have analyzed all the elements of
Smith v. State. ...................................................................................... 34
A. There was no evidence that Elizondo performed some act
or used words that actually provoked the second attack........... 36
B. There was no evidence that the words “Van a ver” were
reasonably calculated to provoke an attack or that the
words were used for the purpose and with intent to
provide a pretext........................................................................ 40
II. The court of appeals affirmed on a jury charge that was grossly
incorrect by ignoring and then misapplying this Court’s
precedent. ............................................................................................ 44
A. The court of appeals erroneously affirmed the trial
court’s submission of a provocation instruction. ...................... 45
B. The court of appeals erroneously refused to review two
omissions from the charge, in conflict with this Court’s
prior decisions. .......................................................................... 46
C. The court of appeals erroneously failed to properly apply
the appropriate harm analysis to the other charge errors. ......... 49
D. The jury charge was a garbled mess, and a review of the
complete charge and application of the proper harm
analyses requires reversal. ........................................................ 52
Conclusion and Prayer ............................................................................................. 56
Certificate of Compliance With Rule 9.4(e) ............................................................ 57
Certificate of Service ............................................................................................... 58
v
INDEX OF AUTHORITIES
Cases
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ...............................45
Barrera v. State,
982 S.W.2d 415 (Tex. Crim. App. 1998) ......................................................47
Bateson v. State,
46 Tex. Crim. 34, 80 S.W. 88 (1904) ............................................................41
Brown v. State,
651 S.W.2d 782 (Tex. Crim. App. 1983). .....................................................54
Clark v. State,
No. 04-13-00330-CR, 2014 WL 3843946 (Tex. App.—San
Antonio Aug. 6, 2014, pet. ref’d) (mem. op., not designated for
publication) ....................................................................................................41
Cornet v. State,
417 S.W.3d 446 (Tex. Crim. App. 2013) ......................................................51
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
Flores v. State,
No. 06-05-00023-CR, 2008 WL 41388 (Tex. App.—Texarkana
Jan. 3, 2008, pet. ref’d) (mem. op., not designated for publication) .............46
Frank v. State,
688 S.W.2d 863 (Tex. Crim. App. 1985) ............................................... 44, 47
Guerra v. State,
No. 13-99-036-CR, 2000 WL 34251905 (Tex. App.—Corpus
Christi Aug. 17, 2000, no pet.) (not designated for publication) ..................41
vi
Lerma v. State,
807 S.W.2d 599 (Tex. App.—Houston [14th Dist.] 1991, pet.
ref’d) ..............................................................................................................47
Malone v. State,
No. 06-11-00013-CR, 2011 WL 5221264 (Tex. App.—Texarkana
Nov. 3, 2011, no pet.) (mem. op., not designated for publication) ...............41
Mendoza v. State,
349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d) ......................... passim
Morrison v. State,
158 Tex. Crim. 424, 256 S.W.2d 410 (1953) ................................................41
Osborne v. State,
No. 02-11-00010-CR, 2011 WL 5903651 (Tex. App.—Fort Worth
Nov. 23, 2011, no pet.) (mem. op., not designated for publication) .............41
Posey v. State,
966 S.W.2d 57 (Tex. Crim. App. 1998) ........................................................31
Reeves v. State,
No. 01-10-00395-CR, 2012 WL 5544770 (Tex. App.—Houston
[1st Dist.] Nov. 15, 2012) (mem. op., not designated for
publication), aff’d, 420 S.W.3d 812 (Tex. Crim. App. 2013) .......... 38, 44, 52
Reynolds v. State,
371 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2012, no pet.).................46
Saxton v. State,
804 S.W.2d 910 (Tex. Crim. App. 1991) ......................................................50
Smith v. State,
965 S.W.2d 509, 512 (Tex. Crim. App. 1998) ...................................... passim
Trevino v. State,
83 Tex. Crim. 562, 204 S.W.2d 996 (1918) (op. on reh’g) ...........................37
Vega v. State,
394 S.W.3d 514 (Tex. Crim. App. 2013) ......................................................48
vii
Villarreal v. State,
No. PD-0332-13, 2015 WL 458146 (Tex. Crim. App. Feb. 4,
2015) ..............................................................................................................54
Statutes
TEX. PENAL CODE ANN. § 9.04 ................................................................................46
TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B) .................................................... 25, 49
Other Authorities
Tex. Pattern Jury Charges, Criminal Defenses, § B14.2.9 (2013) ..........................53
Rules
TEX. R. APP. P. 78.1(c) .............................................................................................44
TEX. R. APP. P. 78.1(d) .............................................................................................44
viii
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
Appellant, Jose Guadalupe Rodriguez Elizondo, files his Brief on the Merits
as requested by the Honorable Court and respectfully shows:
STATEMENT OF THE CASE1
Nature of the Case: The State charged Elizondo with the murder
of Fermin Limon, Sr.2 Elizondo was tried by a
jury and elected to have the jury determine
punishment.3
Course of Proceedings: Trial before a jury lasted for nine days, and
the jury heard evidence regarding the alleged
murder and extensive testimony on
Elizondo’s self-defense justification. 4 At the
conclusion of the guilt-innocence phase of
trial, the jury found Elizondo guilty of
murder. 5 The jury assessed punishment of
twenty-five years.6
Trial Court’s Disposition: The trial court assessed punishment in
accordance with the jury’s verdict and
sentenced Elizondo to twenty-five years’
imprisonment, and imposed court costs.7
1
The clerk’s record consists of one volume and two supplemental volumes, which will be
cited as “CR[page]” and “[volume]Supp.CR[page],” respectively. The reporter’s record consists
of twenty-one volumes and one supplemental volume, which will be cited as “[vol.]RR[page]”
and “Supp.RR[page],” respectively. The exhibit volumes will be cited as follows:
“[vol]RRSX[exhibit number]” for the State’s exhibits, and “[vol]RRDX[exhibit number]” for the
Defense’s exhibits.
2
CR2.
3
CR62.
4
10 RR-18 RR.
5
2 Supp.CR9.
6
2 Supp.CR14.
7
CR69-71.
ix
Motion for Rehearing and Elizondo timely filed motions for rehearing
Reconsideration En Banc: and for reconsideration en banc on March 3,
2014 (the Thirteenth Court granted an
extension of time).
Court of Appeals’ Disposition and The Thirteenth Court of Appeals overruled
Appeal to This Honorable Court: Elizondo’s motions for rehearing and for
reconsideration en banc on June 30, 2014.
Elizondo filed a petition for discretionary
review, which this Court granted. The Court
requested briefing on the merits as to issues 2
and 3 only.
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. Counsel
for appellant can assist the Court through oral argument.
ISSUES PRESENTED
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?
[UNBRIEFED ISSUE PER THE COURT’S REQUEST]
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
x
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? [BRIEFED ISSUE PER THE COURT’S
REQUEST]
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? [BRIEFED ISSUE
PER THE COURT’S REQUEST]
xi
STATEMENT OF FACTS
Fermin Limon, Sr. (“Limon”) was the owner of Punto 3 Nightclub. In the
early morning hours of August 9, 2010, Jose Guadalupe Rodriguez Elizondo, who
was an off-duty U.S. Customs and Border Protection Agent, was involved in two
separate altercations outside Punto 3 nightclub. The details of those altercations
were disputed at trial.
It is undisputed, however, that after Elizondo fled from the first altercation,
several Punto 3 employees pursued him almost 70 yards to his vehicle. There, a
second altercation occurred while one of those employees either forcefully entered
or removed Elizondo from his vehicle, or at the very least, was attempting to do so.
It is likewise undisputed that Limon followed thereafter and pointed a gun at
Elizondo. After Elizondo repeatedly asked Limon to put the gun down and Limon
failed to comply, Elizondo shot Limon in self-defense. The various accounts from
the witnesses are described below:
1
1. Elizondo goes to Punto 3 Nightclub with his family, and the
first altercation occurs outside the nightclub.
A. The Limon family owns Punto 3 Nightclub.
Limon owned a nightclub called Punto 3. 8 Limon employed his daughter
Mireya and son Junior at the club. 9 Limon also employed Rodrigo Carreon
Hernandez, Francisco Garcia, and Bryan Cruz at Punto 3.10 In August 2010, the
nightclub did not have professional security guards; instead, Punto 3 relied on its
employees if an incident occurred requiring security.11
B. Two women get into a fight at Punto 3 and are escorted
out; Elizondo and his brother Juan follow them outside.
Elizondo, his wife Maria, and his brother Juan went to Elizondo’s mother’s
house on the afternoon of August 8, 2010 for a barbeque.12 The three then went to
Punto 3 Nightclub, arriving at approximately 12:45 a.m. on August 9, 2010.13
At the time of the events in this case, Elizondo was employed by the
Department of Homeland Security as a United States Customs and Border
8
Punto 3 Nightclub is located in Mission, Texas on Elida Street, which runs east and west,
and the nightclub is situated on the south side of that roadway. 11RR21; 20RRSX111. As shown
on State’s Exhibit 111, a fence runs along the east side of Punto 3, running north and south,
separating the parking area. 20RRSX111. The fence is approximately six feet tall. 11RR130.
9
12RR6-7, 9; 15RR208-09. Fermin Limon, Jr. will be referred to as “Junior” to distinguish
him from his father.
10
12RR36; 13RR35, 96; 14RR83.
11
12RR19-20; 16RR15-17.
12
14RR197, 207; 15RR105; 16RR111; 21RRDX21.
13
14RR207-09; 15RR108-110
2
Protection Officer.14 He testified that he was authorized to carry his government-
issued firearm at all times, concealed or otherwise. 15 Elizondo testified that,
nevertheless, he left the firearm and his officer credentials inside the center console
of his Dodge truck, which he parked in the parking lot of Punto 3.16
Elizondo’s brother Juan testified that once inside the club, he attempted to
break up a fight between two women.17 Punto 3 employees outside escorted Juan
with the group, and Elizondo followed, telling Juan not to get involved and to calm
down. 18 Juan stated that he went outside and began talking to Limon, who he
understood to be the manager or head of security at Punto 3.19 Juan explained the
situation to Limon and was allowed to go back inside the club.20 Juan testified that
at the time, there were at least five Punto 3 employees outside the club.21
Elizondo’s wife, Maria, testified that after she, Juan, and Elizondo arrived at
Punto 3, she saw some people fighting and that Juan was nearby. 22 She told
Elizondo to check on Juan.23 The people were exiting the club, and some were
14
14RR241; 15RR205; 16RR111, 171-72; 21RRDX21. Prior to becoming a customs agent,
Elizondo served as a peace officer for the City of Donna. 16RR172.
15
16RR179-83; 21RRDX24.
16
16RR114, 175-76; 21RRDX21.
17
14RR221-22.
18
14RR221-226; 12RR173; 16 RR 112; 21RRDX21.
19
14RR226-27.
20
14RR228-29.
21
14RR230.
22
15RR114.
23
15RR114-15.
3
throwing bottles, so she walked toward the entrance.24 Maria testified that she had
a drink in her hand, and a female employee of the club said, “This stupid lady
doesn’t want to leave her drink behind.” 25 Maria then brought her drink to the
counter and turned toward the entrance. 26 She testified that she tried to follow
Elizondo and Juan out of the club, and a Punto 3 employee grabbed her and said, “I
know the woman of your kind and get out.”27 She testified that he pushed her and
she got upset.28
Junior testified that he recalled six people involved in a “discussion,” and his
mother told him to go “handle the situation.”29 Junior escorted some of the people
outside.30 Junior’s wife, who worked the nightclub’s ticket booth, told Junior that a
woman, later identified as Maria, was attempting to leave with a drink. 31 Junior
claimed that he told Maria to leave her drink inside, but he denied that he or his
wife used any bad language.32 Junior admitted, however, that he grabbed Maria by
24
15RR115.
25
15RR116.
26
15RR118-120.
27
15RR120-22; see also 15RR182.
28
15RR121-22; see also 15RR182.
29
15RR213-14.
30
15RR215, 218.
31
15RR218-20.
32
15RR220-21.
4
the arm.33 Junior then returned to the bar, and his mother asked him to check on
Limon outside.34
C. Maria tells Elizondo that Junior treated her badly, and
the first altercation occurs outside the club.
Maria testified that as Juan went back inside the club, she noticed Junior
making fun of her. 35 She told Elizondo that Junior had pushed her. 36 It was
undisputed that Elizondo confronted Junior about pushing his wife, but the precise
sequence of events was disputed.
Rodrigo, who worked at Punto 3, testified that Elizondo was outside the club
talking to Limon, and Maria was being disrespectful and cussing at the Punto 3
employees.37 Then Junior “disrespected her,” and Elizondo intervened.38 Rodrigo
claimed that Elizondo said, “Well son of a bitch, are you going to calm down or
not”?39 According to Rodrigo, Elizondo said, “Don’t disrespect my woman you
son of a bitch,” and then hit Limon.40 Rodrigo testified that he then came forward
and hit Elizondo with an open palm.41 Rodrigo claimed that Elizondo kicked him,
33
15RR224-25.
34
15RR226.
35
15RR122, 125-26.
36
15RR126; 16 RR113; 21RRDX21.
37
14RR95-97.
38
14RR97-98, 125.
39
14RR98.
40
14RR98-99.
41
14RR99-100.
5
and a woman grabbed him from behind.42 Then Elizondo ran toward the parking
lot, and Bryan followed him, with Rodrigo following behind Bryan.43
Junior testified that when he went outside the club, he saw his father talking
to two other men, using raised voices. 44 Bryan, Rodrigo, and another Punto 3
employee called “Pajaro” were standing with Limon.45 Junior claimed that when he
walked outside, Maria was screaming at him and calling him names, and he got
upset. 46 Junior testified that Elizondo then intervened and called him a “dumb
ass.” 47 Junior said Limon scolded Elizondo for calling Junior a name, and that
Elizondo then tried to hit Limon, but Elizondo missed.48 He testified that Rodrigo
reacted and hit Elizondo with the back of his hand. 49 Junior agreed that after
Rodrigo hit him, Elizondo ran away.50
In contrast, Maria testified that once outside Punto 3, she told Elizondo that
Junior was “handling her.”51 She stated that when Elizondo walked toward Junior
and asked, “Why were you pushing my wife?,” Junior reacted angrily and became
42
14RR100.
43
14RR101-02, 126.
44
15RR226-27.
45
15RR231.
46
15RR228.
47
15RR228-29.
48
15RR229-30; 16RR21-22.
49
15RR232; 16RR60-61, 73-74. Junior’s prior statement, given to police right after the
incident, claimed that Elizondo tried to hit him, not his father. 16RR57. He told the police that
because he moved out of the way, Elizondo hit Rodrigo instead. 16RR57.
50
15RR233; 16RR23-24.
51
15RR126.
6
aggressive.52 Then another Punto 3 employee said, “You’re not going to hit my
brother,” and he punched Elizondo.53 She explained that Elizondo “started moving
back until he got loose and he ran.”54 Maria started yelling for the men to stop.55
Juan testified that after he re-entered the club, he did not see what was going
on outside, but he noticed someone running outside and realized Elizondo had not
come back inside Punto 3.56 He went back towards the club’s entrance, and as he
approached the door, he heard Maria yelling.57 He walked outside and saw Maria
crying.58 Maria told Juan that Elizondo had “got punched or he got beat up or
something like that,” and then Juan saw Elizondo running away.59
In Elizondo’s statement to police, he stated that outside the club, Maria
pointed out a bald man that had pushed her. 60 According to Elizondo, the man
came toward Elizondo aggressively and pushed him, and Elizondo pushed back.61
Then, several people started punching Elizondo.62
52
15RR127-28.
53
15RR127-32.
54
15RR129.
55
15RR132.
56
14RR230-32.
57
14RR234.
58
14RR234.
59
14RR235.
60
16RR113; 21RRDX21.
61
16RR113; 21RRDX21.
62
16RR113; 21RRDX21.
7
At trial, Elizondo testified to essentially the same sequence of events.63 He
claimed that when he first saw Maria, she looked as if she were about to cry.64
Maria pointed at Junior and told Elizondo that Junior had pushed her.65 Junior did
not have a Punto 3 logo on his shirt, and Elizondo thought he was just a
customer.66
Elizondo asked Junior why he had pushed Maria, and he conceded that he
had called Junior a bad name. 67 Junior responded, “Here I can do whatever I
want.”68 Elizondo claimed that Junior then charged to the front and pushed him.69
Elizondo pushed him back.70 Then, Rodrigo hit Elizondo on the side of the face.71
At that point, Elizondo said it “clicked” in his mind that all these men were
together, and Elizondo tried to hit Rodrigo back.72 He explained that it was chaotic,
and there were about four men swinging and grabbing at him.73 Elizondo knew he
was outnumbered, and he was moving backwards trying to get away from them.74
63
16RR183-95.
64
16RR183.
65
16RR185.
66
16RR186-87.
67
16RR185-86, 263-64.
68
16RR186.
69
16RR186-87.
70
16RR188.
71
16RR188.
72
16RR190.
73
16RR191.
74
16RR192.
8
He could not defend himself against all four of them—there were too many of
them.75
Elizondo explained that he thought he needed to get out of there.76 The only
safe place he could think of to go was to his truck.77 So he turned and ran as fast as
he could to his truck.78 Elizondo testified that he did not think about getting his gun
and returning at that point; he just wanted to get away from the brawl.79 As he
turned to run away, he could feel the men hitting him and kicking his feet to try to
trip him.80
2. Elizondo runs away from the altercation, attempting to flee,
but Punto 3 employees chase him almost seventy yards to his
truck.
It was undisputed that, after the first altercation outside the front door of
Punto 3, Elizondo ran through the parking lot and around the fence to his vehicle,
and Bryan, Rodrigo, and Junior followed him.81 The group chased Elizondo the
entire distance from the front door of Punto 3 around the fence to the parking lot,
which was approximately 67 yards.82
75
16RR192.
76
16RR194.
77
16RR195.
78
16RR195.
79
16RR196.
80
16RR196.
81
12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-34, 233; 16RR113, 197;
21RRDX21.
82
11RR95; 14RR102-03, 235.
9
Rodrigo admitted that during the chase, he was yelling at Elizondo to “stop
asshole.”83 According to Rodrigo, Elizondo unlocked his truck with his keys as he
was running toward the vehicle, and when he arrived at the truck, Elizondo got
inside, closed the door, and locked the vehicle.84
Junior likewise admitted chasing Elizondo to his truck. 85 Junior stated he
could not recall whether Bryan or Rodrigo were yelling at Elizondo to “stop,
asshole,” or saying anything else. 86 He claimed, however, that while he was
chasing Elizondo, he heard Elizondo say, “Van a ver,” in Spanish, which was
translated as, “You’re going to see.”87
Junior claimed that he took that as a threat, and he got scared.88 Junior stated
that upon hearing those words, he continued following, but slowed his pace.89 He
then claimed that “at that point,” he was following Elizondo because of “what he
had heard,” not because of what Elizondo had done to his father, Limon.90
Later in his testimony, Junior changed his story: He claimed that
occasionally the Punto 3 employees would follow customers to their cars to make
83
14RR102, 126.
84
14RR103.
85
15RR233.
86
16RR24-25.
87
15RR234-35; 16RR30.
88
15RR235.
89
15RR235.
90
15RR235.
10
sure they would “leave safely” and “don’t get in a fight outside the club.”91 He
testified that he would confirm that customers would go to their cars because he
feared that “[t]hey would go grab a weapon or try to grab—go grab something out
of their car or something and take it out on the people that are inside the club or
outside when we’re taking them outside . . . .”92
Juan likewise testified that he saw Elizondo run towards the parking lot and
turn around the fence.93 A security guard following Elizondo took a swing to hit
him, but missed Elizondo.94 Juan then ran after Elizondo, noticing that the security
guards were going after Elizondo. 95 He testified that he heard them yelling at
Elizondo along the way.96
Maria testified that the men were running behind Elizondo, and they caught
him before he got to the fence, hitting him and hitting his feet from behind.97 She
stated that the men were yelling, “Stop asshole. Stop.”98 Maria followed after.99
Elizondo likewise testified at trial that as the men were following him to his
truck, one of the men was yelling, “Stop dumb ass” or “stop asshole.”100 Based on
91
16RR9-10.
92
16RR10, 25.
93
14RR235.
94
14RR235.
95
14RR235.
96
15RR11.
97
15RR133-36.
98
15RR133.
99
15RR136-37.
100
16RR198.
11
what the men were saying and their tone of voice, and that they were shouting all
the way to his truck, Elizondo did not believe that these men were going to let him
go once he got to the truck.101
3. A second altercation occurs at Elizondo’s truck.
All the witnesses present at the time of the shooting said that Elizondo ran to
his truck and got inside, and Bryan, Rodrigo, and Junior approached the truck’s
window. 102 Francisco, a Punto 3 employee, testified that Bryan, Rodrigo, and
Junior were “banging on the windows” of the truck.103 Francisco then heard Bryan
say, “Run. There’s a gun.”104
Rodrigo likewise testified that Junior “got to the truck and was hitting the
window telling [Elizondo], ‘Get off asshole.’”105 Rodrigo agreed that Junior was
trying to get Elizondo to come out of his truck because Elizondo was already
inside with the door locked.106 Rodrigo claimed that “another individual,” who he
did not identify, came up behind and grabbed Junior.107
101
16RR198.
102
13RR128, 139; 14RR103-04; 15RR236. Investigator Max Cantu, who took Elizondo’s
statement the morning after the shooting, testified that his understanding of Elizondo’s statement
was that he merely reached into the vehicle, but did not actually get inside the vehicle. 16RR120.
Investigator Cantu, however, explained this was how he “interpreted” Elizondo’s statement.
16RR120.
103
13RR149, 179.
104
13RR129, 150.
105
14RR104, 105; 15RR42.
106
15RR80.
107
14RR105.
12
Rodrigo testified that Elizondo got out of the truck and hit Junior on the
forehead.108 Rodrigo claimed that he then jumped into the fight again, and he heard
the gun go off, but the bullet missed him because Junior hit Elizondo in the
stomach with his head. 109 Rodrigo stated that he ran away from the gunfire. 110
Later in his testimony, Rodrigo admitted that Elizondo never pointed the gun at
him and fired it.111 He claimed that Elizondo tried to hit him with the gun, and it
went off.112
Junior denied hearing Bryan or Rodrigo say there was a gun, and he claimed
that when he arrived at the truck, he approached it by himself.113 He did not see
Rodrigo or Bryan when he got to the truck. 114 Junior stated that Elizondo was
inside the truck when he arrived there.115 He stated that he “tapped” on the driver’s
side window, so that Elizondo “could come outside of his truck.” 116 Later, he
admitted he was not “tapping nicely.”117
108
14RR106; see also 13RR130, 150.
109
14RR107.
110
14RR108.
111
15RR49, 52-53.
112
15RR50.
113
15RR236.
114
16RR27.
115
15RR237; 16RR28.
116
15RR237.
117
16RR29.
13
Junior testified that Juan then grabbed him from behind.118 He claimed he
felt punches on his head, but he could not tell from whom they were coming.119 He
also could not tell if a gun was being used to hit him, but stated that he had a cut on
his head that bled a lot, that he had bruising on his head an back, and that his shirt
was pulled open.120 He stated that he ducked down, and then he heard a shot.121
In contrast, Juan testified that as he approached Elizondo’s truck, a man was
there and appeared to be struggling with Elizondo, and Juan also engaged in a
struggle with the man. 122 At that point, Elizondo was already outside of his
truck.123 Juan hit the man, and the man hit him back.124
Elizondo told the police “they were coming after him, he pulled—he went to
his vehicle, he got his gun, he grabbed it . . . .”125 At trial, Elizondo testified that
while he was running to the vehicle, he remembered his gun. 126 He said he
unlocked the door as he was running toward it.127 He got in as fast as he could and
118
15RR238; 16RR62.
119
15RR238-39. While both Rodrigo and Junior testified that Junior’s head was cut, no
injuries were documented by the police or at the hospital, and Junior did not have a scar.
15RR47; 16RR63-65.
120
16RR7-8, 67-68.
121
15RR239.
122
14RR241, 243.
123
14RR242-43.
124
14RR243.
125
12RR181.
126
16RR199.
127
16RR199.
14
shut the door.128 He said he did not have time to lock the door, and he immediately
opened the console to grab his gun.129
Elizondo explained that he intended to grab the gun and his credentials, and
he thought that if he displayed his credentials, the men might stop. 130 Elizondo
grabbed the gun and was about to grab his credentials, and someone opened the
door and pulled him out of the truck.131 Elizondo said that he knew the rest of the
men were still coming, and so when the man pulled him out of the truck, he hit him
with the gun.132 Elizondo testified that Juan then arrived and grabbed the man from
behind.133 When Juan grabbed the man, something grabbed Elizondo’s attention
toward the rear of the truck, and that is when Elizondo noticed Limon standing
there with a gun pointed toward him.134
4. Limon threatens Elizondo with deadly force, pointing a gun at
him, and Elizondo shoots him.
Francisco Garcia claimed after Elizondo got out of his truck, he heard a
gunshot, and moments afterward he saw Limon walking along the fence line
toward the gunshot.135 Francisco then saw “two guns being pulled out,” and he
128
16RR199.
129
16RR199-200.
130
16RR200-01.
131
16RR201-03.
132
16RR203.
133
16RR204.
134
16RR204-06, 208.
135
13RR133.
15
explained that the guns were pointed at the same time.136 He claimed that Elizondo
and Limon were pointing the guns at each other, and he heard Elizondo tell Limon
several times to drop down to the floor.137 Francisco testified that Limon did not
follow the orders, but he was making hand gestures and pointing his gun with his
other hand. 138 Francisco thought the hand gesture meant to “calm down or
something.”139 Then Elizondo shot Limon.140 Limon walked back towards the club
and fell down, and then Rodrigo and Bryan took his gun and started shooting
towards Elizondo.141
Rodrigo confirmed that at this point, he also saw Limon approaching with a
gun, pointing it at Elizondo.142 When Rodrigo first saw Limon, he already had the
gun in his hand.143 He claimed that Limon saw that “they had his son,” and that
Elizondo had his back to him. 144 Rodrigo stated that at that time, Elizondo was
hitting Junior with his gun.145
136
13RR134, 174. It was undisputed that Limon had a 9-millimeter Taurus handgun, that he
would carry it while at Punto 3, and that he had it that night. 11RR87; 12RR22-24, 96, 104, 125;
12RR181; 14RR101-02; 20RRSX113; 21RRDX16.
137
13RR135, 171, 172-73.
138
13RR135.
139
13RR136.
140
13RR137.
141
13RR139-142, 175.
142
14RR108.
143
15RR44.
144
14RR108.
145
15RR47.
16
Rodrigo claimed that Limon told Elizondo to “calm down. Let’s settle this
problem,” but acknowledged that Limon was pointing the gun at Elizondo.146 He
stated that Elizondo told Limon to “[g]et to the ground son of a bitch. Get to the
ground . . . [y]ou dog.”147 Later, Rodrigo inconsistently claimed that Elizondo said,
“Hit the ground you motherfucker. Hit the ground. . . You dog.”148
Rodrigo testified that Elizondo did not give Limon time to comply, and
“instantly he shot him.”149 Later, however, Rodrigo admitted that it “took a little
while.”150 Rodrigo testified that Limon walked away and fell down by the fence,
and Rodrigo then grabbed Limon’s gun and attempted to shoot at Elizondo.151 The
gun locked up, and so Rodrigo passed it to Bryan, who unlocked it and fired at
Elizondo.152 Later, Rodrigo took Limon’s weapon and hid it.153 Rodrigo was later
arrested for tampering with evidence.154
Junior stated that before he heard the first shot, he heard Juan yell that
Elizondo was an officer.155 Junior was turned loose, and he ran back to the club.156
146
14RR108.
147
14RR109.
148
15RR46.
149
14RR110.
150
15RR46.
151
14RR111.
152
14RR112-15.
153
14RR121-24.
154
It was undisputed that, after the incident, Bryan Cruz, Rodrigo Carreon Hernandez, and
Adelfina Herrera Carredon were arrested for tampering with evidence. 12RR122-24, 126;
15RR174-77. Specifically, these individuals concealed Limon’s weapon after the incident, and it
was recovered in a dumpster by the police. 12RR122-24, 126; 13RR49; 14RR37.
155
16RR38.
17
Junior testified at trial that he never saw Limon approach the truck.157 He claimed
that as he ran back to the club, he saw Limon on the ground.158 Later, however, he
conceded that immediately after the shooting, he told the police that he saw his
father pull out a gun.159 But he again denied actually seeing it.160
Juan testified that he was struggling with the person at the truck, and he
never saw Limon approach with his gun.161 But he heard his brother say, “U.S.
Customs. Please put the gun down.”162 Juan asserted that Elizondo asked twice for
Limon to put the gun down.163 Juan testified that he feared for his life and tried to
hide himself, and then he heard some shots.164 He explained that he heard Elizondo
fire two shots, but he did not know whom Elizondo was shooting at.165 Then shots
were fired back at Juan and Elizondo.166
Maria testified that when she got to Elizondo’s truck, he was already
standing outside by the door.167 She said there were several security guards at the
truck. 168 She testified that one of the men had a pistol and was pointing it at
156
15RR240.
157
15RR240; 16RR38.
158
15RR242.
159
16RR41.
160
16RR42-44.
161
15RR16.
162
14RR250; 15RR15-17.
163
15RR17.
164
14RR251; 15RR18.
165
14RR249-50.
166
14RR252.
167
15RR137.
168
15RR137-38.
18
Elizondo.169 She stated that she was very scared.170 She believed the man wanted to
fire the gun.171 She testified that if the person had shot the gun, the bullet would
have hit her and also Elizondo.172 Maria explained that Elizondo told the man to
“[l]ower your weapon.”173 She then heard Elizondo shoot his gun.174
Elizondo told Trooper Champion that he warned the Punto 3 employees he
was U.S. Customs and told them to get back. 175 They refused to comply and
continued to come after him.176 He saw Limon reach behind his back and observed
what he thought was a gun.177
According to Trooper Champion, right after the shooting, Elizondo told him
that he went to his vehicle and got his gun, and thereafter he stated that he was
“U.S. Customs and Border Protection and that he pointed the gun.”178 He said that
“when he pointed the gun he saw the victim reach behind his back, I believe is
what he said; he pulled out what he believed was a gun and he shot him; and then
169
15RR138, 152.
170
15 RR152.
171
15RR152.
172
15RR153.
173
15 RR140. Maria testified that the other man with the gun shot at her and Elizondo, and
she felt dirt flying on her feet. 15 RR141, 154.
174
15 RR143.
175
13RR16.
176
13RR16.
177
13RR16, 68.
178
12RR180.
19
he told me—I believe he said three times or I believe he said he shot three times at
the subject.”179
At trial, Elizondo testified that he told Limon two times that he was “U.S.
Customs” and to “throw the gun.” 180 But Limon did not lower his weapon. 181
Elizondo then shot twice.182 Elizondo explained that he fired once, but he did not
see any reaction from Limon.183 Elizondo thought he missed, so he shot a second
time.184
5. Testimony on the reasonableness of Elizondo’s conduct.
Ricardo Balli, Jr. testified that he was a former police officer and was then
an agent for the Texas Alcoholic Beverage Commission.185 Agent Balli testified
that, if a law enforcement officer went to a bar, he was legally entitled to take his
government-issued weapon and either carry it on him or leave it in his vehicle.186
He agreed it would still be legal to carry the weapon if the officer was off duty and
had a few drinks, as long as the officer did not become intoxicated.187
In Elizondo’s statement to police, he explained that he became scared
outside the club because the security guards were “not trying to push me away like
179
12RR181.
180
16RR206.
181
16RR206.
182
16RR214.
183
16RR214-15.
184
16RR215.
185
17RR40.
186
17RR45-47.
187
17RR47-48.
20
security guards would do. The men were attacking me, and I just thought I need to
get away from them before they take me to the ground.”188 So he ran to his truck.189
Elizondo was aware that the men were chasing him, and he could feel them
punching at him and kicking at his feet and could hear them yelling at him.190
Elizondo told the police that he was scared for his life, and he tried to run
away, but the Punto 3 employees were continuing to assault him and followed him
to his truck.191 Trooper Champion testified that Elizondo told him that he was in
fear of his life because he was being attacked.192 Elizondo testified at trial that at
the point he was being chased, it was a deadly situation for him because he “had
four guys chasing me. We know four guys can kill you if they kick you enough or
punch you enough.”193 He explained, “My previous experience as a police officer
and from your own cases where two, three people can beat you up—can beat you
down to death. Yes. So I felt the need to grab the weapon, yes.”194
On the way to his truck, Elizondo unlocked the door. 195 He got inside,
grabbed his gun, and then he felt someone grab him and pull him out of the
truck.196 He came out of the truck swinging and hit the man.197
188
16RR113; 21RRDX21.
189
16RR113; 21RRDX21.
190
16RR113; 21RRDX21.
191
12RR180; 13RR15, 66, 68.
192
12RR178, 180.
193
17RR19.
194
17RR21.
195
16RR114; 21RRDX21.
21
At that point, Juan grabbed the man, and Elizondo then saw Limon pointing
the gun at him.198 Elizondo told police that he was scared that if Limon had a gun,
the other men had guns as well.199 He warned Limon that he was a “United States
Customs Agent” and told him to put the gun down twice. 200 Elizondo thought
Limon was going to shoot him, particularly because Limon had “chased him all the
way to the parking lot away from the business,” Elizondo had “already been
assaulted at the front of the club,” and Elizondo had been pulled out of his truck.201
Elizondo testified he felt that he had no other choice but to shoot Limon, because
Limon was going to shot him.202
Investigator Max Cantu testified that if someone is pointing a loaded gun at
another person, it means that the person is willing to kill.203 He testified that if
someone pointed a gun at him, he would be in fear of his life, and if he asked the
person to put the gun down but the person refused, it would concern him.204
At first, Investigator Cantu opined that Limon had a right to protect his
patrons, his business, and himself.205 He agreed, however, that Limon had followed
196
16RR114; 21RRDX21.
197
16RR114; 21RRDX21.
198
16RR114; 21RRDX21.
199
16RR114; 21RRDX21.
200
16RR114; 21RRDX21.
201
16RR207.
202
16RR209.
203
16RR129.
204
16RR129.
205
16RR135.
22
Elizondo to his truck, at a distance of over 60 yards. 206 With respect to his
business, once presented with the Texas Penal Code provisions regarding deadly
force to protect property, Investigator Cantu agreed they did not apply. 207
Investigator Cantu then backtracked and clarified that he only meant that Limon
had the right to carry the weapon at his business, not to use deadly force that
night. 208 Investigator Cantu testified that if a customer pulled out a gun at a
business, the business owner could protect his customers. 209 He further testified
that if someone was hitting his son with a blunt object, he would protect that
person.210
Investigator Cantu explained that peace officers are trained that when firing
a pistol at someone, they aim for “center mass.”211 In other words, if a person is
pointing a weapon at a peace officer, the officer is not trained to shoot them in the
leg to wound the person. 212 And he agreed there was nothing in the law that
requires a person to try to merely wound another person if using deadly force in
206
16RR136.
207
16RR142-43.
208
16RR143.
209
16RR151.
210
16RR151.
211
16RR153.
212
16RR153-54.
23
self-defense.213 Elizondo likewise testified that he was trained to shoot through the
abdominal and chest area, or “center mass.”214
Trooper Champion testified that when he first approached Elizondo, he saw
Elizondo as a threat, even though Elizondo did not have his gun pointed at him,
and so Trooper Champion pointed his pistol at Elizondo.215 And, he agreed that
threat would be a “lot more serious” if Elizondo had “lifted that gun and pointed it”
at him.216 In other words, pointing a gun at someone is a serious threat.
6. The trial court submits a provocation instruction over
Elizondo’s objection and submits a self-defense charge that is
inaccurate and incomplete.
Initially, the jury charge instructed the jury on the presumption of
reasonableness, as follows:
The actor’s belief that the deadly force was immediately necessary is
presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against [sic]
deadly force was used was committing or attempting to commit
murder; and
(2) did not provoke the person against whom the force was used,
and
(3) was not otherwise engaged in criminal activity, other than a
Class C misdemeanor that is a violation of law or ordinance
regulating traffic at the time the force was used.217
213
16RR154.
214
16 RR213-14.
215
12RR200.
216
12RR199-200.
217
2Supp.CR3.
24
Elizondo’s trial counsel did not object to this language in that it fails to track Texas
Penal Code section 9.32 by omitting reference to two other applicable
218
circumstances where the presumption of reasonableness could arise.
Specifically, the instruction only included a presumption of reasonableness when
the actor believed that the person against whom deadly force was used was
committing or attempting to commit murder, while section 9.32 also provides a
presumption of reasonableness when the actor believes the other person was
unlawfully and with force entering or attempting to enter the actor’s vehicle, or
removing or attempting to remove the actor from his vehicle.219
Additionally, the jury charge did not instruct on the law of multiple
assailants, nor did it include language regarding the threat of deadly force by
production of a weapon as discussed in Texas Penal Code section 9.04. 220
Elizondo’s trial counsel likewise did not object to these omissions from the jury
charge.221
Rather, Elizondo’s trial counsel objected that the language regarding
provocation should not be included.222 He argued that even assuming there was
provocation, it was not directed at Limon, and the evidence admitted at trial did not
218
See generally 17 RR.
219
TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B).
220
2Supp.CR2-8.
221
See generally 17 RR.
222
17RR64.
25
support a provocation instruction. 223 The Court overruled that objection and
included the following instruction in the charge:
You are further instructed as part of the law of this case, and as
a qualification of the law on self-defense, that the use of force by a
defendant against another is not justified if the defendant provoked the
other’s use or attempted use of unlawful deadly force, unless (a) the
defendant 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 person, nevertheless,
continues or attempts to use unlawful force against the defendant.
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.224
Notably, in this instruction, the jury was not told to find against Elizondo on the
issue of self-defense if they found provocation; instead, they were instructed to
223
17RR64.
224
2Supp.CR5-6 (emphasis added).
26
find Elizondo guilty of murder.225 Elizondo’s trial counsel did not object to the
language directing the jury to find Elizondo guilty.226
7. The jury finds Elizondo guilty, and sentences him to twenty-
five years in prison.
The jury found Elizondo guilty of murder, rejecting his self-defense
arguments. 227 The jury then heard evidence on punishment, and it assessed
punishment at twenty-five years’ imprisonment in the Texas Department of
Criminal Justice Institutional Division, with no fine.228
8. The Court of Appeals affirms.
The court of appeals acknowledged the essentially undisputed 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. 229 The court held that an alleged
statement by Elizondo after he had already started to flee the difficulty and after
the men initiated a chase to his vehicle provoked the second altercation,
225
Id.
226
See generally 17 RR. The undersigned counsel inadvertently asserted in the petition for
discretionary review that trial counsel objected to this language in the jury charge. The error was
based on the court of appeals’ erroneous holding that an objection was made, and the
undersigned counsel did not notice the error until preparing this Brief on the Merits. The
undersigned counsel has filed a motion for leave to amend the petition for discretionary review
to correct the error, and profusely apologizes to the Honorable Court for the oversight.
227
2Supp.CR9.
228
2Supp.CR14.
229
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).
27
undermining Elizondo’s self-defense justification.230 The court, however, did not
analyze the elements of provocation with respect to these statements.231
The court of appeals also rejected Elizondo’s arguments relating to the jury
charge. 232 First, the court of appeals held that the trial court properly gave a
provocation instruction.233 The court opined:
Here, there was some evidence to show that Elizondo provoked
the fight. [Rodrigo] testified that Elizondo told Junior, “Don't
disrespect my woman, you son of a bitch” and “Well, son of a bitch,
are you going to calm down or not?” Junior stated that Elizondo called
him a “pendejo ” or “dumbass.” Then, both Rigo and Junior testified
that Elizondo swung, hitting Limon, Sr. These words and actions
constituted “some” evidence that Elizondo provoked the first
difficulty.
As noted earlier, however, the provocation doctrine is limited if
the defendant abandoned the difficulty. Elizondo argues he
“abandoned” the encounter by running from the difficulty outside the
bar to his pickup truck, nearly seventy yards away. Therefore, he
contends that the provocation instruction was improper. To achieve
the abandonment caveat to the provocation doctrine, though, 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 has passed, and make his conduct thereafter the pursuit
of vengeance rather than measures to repel the original assault.’”
Further, “the abandonment of the 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.”
While it is undisputed by all of the witnesses that Elizondo ran
nearly seventy yards away from the first difficulty, Junior testified
230
Id.
231
Id.
232
Id. at *7-10.
233
Id. at *7-8.
28
that Elizondo was yelling, “Van a ver,” roughly translated as “You
will see,” while running. Junior testified that he believed that
Elizondo's words constituted a threat to the others, which made Junior
scared. These words did not communicate to Junior that the danger
had passed. Further, the jury was presented with Elizondo's statement
to the police which provided that he “ran towards [his] truck where
[he] had [his] duty issued H & K 40 Caliber handgun.” This evidence
supports a rational inference that Elizondo was running to his truck
for a weapon, not to escape the fight. Accordingly, we find that a
reasonable jury could have surmised that Elizondo did not abandon
the first encounter, and that the provocation instruction was therefore
merited.
We conclude that the trial court did not err when it submitted
the provocation instruction to the jury because there was sufficient
evidence to raise this issue. Because we have found no error, no harm
analysis is required. We overrule this issue.234
Second, the court of appeals held that while it was error for the jury charge
not to include all the presumptions of reasonable force as provided in section 9.32,
the error did not cause egregious harm.235 The court explained:
Elizondo also argues that the trial court erred when it failed to
include all of the presumptions of reasonable force as provided by
section 9.32 of the penal code. The jury charge only provided that a
presumption of reasonableness would arise if Elizondo “knew or had
reason to believe that the person against [whom] deadly force was
used was committing or attempting to commit murder.” Elizondo
argues that two additional scenarios should have been added to the
charge. First, where the actor knew or had reason to believe an
assailant “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 second, where the
actor “(B) unlawfully and with force removed, or was attempting to
234
Id. at *8 (internal citations omitted).
235
Id. at *8-9.
29
remove unlawfully and with force, the actor from the actor's
habitation, vehicle, or place of business or employment.”
Elizondo complains that he knew or had reason to believe that
Junior unlawfully and with force pulled him out of his pickup truck,
or was attempting to do so. He stated that Junior's banging on
Elizondo's driver's side window yelling “Get off asshole” meant that
he was entitled to those instructions.
We agree that the evidence in the record warranted the
inclusion of these instructions. Accordingly, we hold that the trial
court erred by omitting them. Having found error, though, we do not
find any egregious harm. Because we previously concluded that a
reasonable 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, see section III(B)(1) supra, these extra
instructions would not have affected the outcome. We overrule this
issue.236
Third, the court held that the trial court erred by instructing the jury that if
the court found provocation, it should find Elizondo guilty of murder (instead of
instructing the jury that it should reject the self-defense argument). 237 As
referenced in footnote 226 of this brief and in the motion for leave to amend the
petition for discretionary review filed by the undersigned counsel, the court of
appeals erroneously concluded that this error was preserved by objection in the
trial court. The court found the error was harmless, but nevertheless did not
analyze all the Almanza factors:
Having found error, we turn to a harm analysis. To determine if
Elizondo suffered some harm by this incorrect instruction, we
236
Id.
237
Id. at *9.
30
consider “the entire jury charge, the state of the evidence, including
the contested issues and weight of probative evidence, the argument
of counsel and any other relevant information revealed by the record
of the trial as a whole.” Upon a thorough review of the trial record and
jury charge, though, we find no harm. From voir dire to closing
arguments, the jury was repeatedly instructed that it was the State's
burden to prove that Elizondo committed murder. The jury charge
reinforced this tenet. In light of the foregoing, we hold that the error
was harmless and overrule this issue.238
Finally, the court rejected Elizondo’s arguments relating to instructions on
“threats as justifiable force” and multiple assailants, holding that under this Court’s
decision in Posey v. State,239 Elizondo waived the right to these instructions by
failing to request them.240
Elizondo petitioned this Court for discretionary review, raising three
grounds. The first ground asked the Court to find, as a matter of law, that Elizondo
sufficiently abandoned the first altercation by fleeing nearly 70 yards to his truck,
which was the only reasonable place to run under the circumstances. This Court
did not request briefing on that issue. Elizondo can only assume that the Court
agrees with the argument in his petition for discretionary review regarding the first
ground presented.
The second ground asked the Court to hold that the court of appeals should
have completed a full evaluation of the elements of provocation under Smith v.
238
Id. (internal citations omitted).
239
966 S.W.2d 57, 62 (Tex. Crim. App. 1998).
240
Elizondo, 2014 WL 222834, at *10.
31
State with respect to the second altercation, and that Elizondo should have been
acquitted upon completion of that analysis. The third ground asked the Court to
review the court of appeals’ analysis of the jury charge errors. This Court
requested briefing on only the second and third grounds.
SUMMARY OF THE ARGUMENT
The court of appeals failed to analyze all the elements of Smith v. State with
respect to provocation of a second altercation, after abandonment of an initial
altercation. 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. Elizondo was outnumbered
during this initial altercation, and he feared for his life. The undisputed evidence
shows that Elizondo fled the first difficulty by running nearly seventy yards to his
truck and getting inside the vehicle.
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. Once at the truck, Elizondo was forcefully removed from it and
engaged in a second altercation with the men. As part of this second altercation,
the club’s owner, Limon, 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’s death.
32
Under Smith v. State, the court of appeals should have reviewed whether
Elizondo did some act or used some words which provoked the second altercation,
whether his acts or words were reasonably calculated to provoke the attack, and
whether the act was done or the words were used for the purpose and with the
intent that Elizondo would have a pretext for harming another.
A thorough analysis shows that Elizondo did not actually provoke the
second attack by stating, “Van a ver.” Those words were spoken after Elizondo
attempted to flee the initial altercation, but the Punto 3 employees were already
engaged in a chase. Additionally, there was nothing to show that these words were
reasonably calculated to provoke the attack, or that they were spoken for the
purpose and with the intent Elizondo would have a pretext for harming another.
This Court should engage in the analysis, or remand to require the court of appeals
to do so.
Additionally, the court of appeals affirmed on a jury charge that was replete
with harmful errors. First, there was no evidence to justify a provocation
instruction with respect to the second altercation.
Second, the court of appeals erroneously held that two omissions from the
charge—relating to threats of deadly force and the law of multiple assailants—
were waived, refusing to review the omissions for egregious harm. This holding is
contrary to this Court’s decisions in Barrera v. State and Vega v. State that once a
33
trial court charges on a defensive issue, but fails to do so correctly, this is charge
error subject to review under Almanza. This Court should recognize these errors as
reviewable and apply the egregious harm standard.
Third, the jury charge contained an incomplete instruction on the
presumption of reasonableness, and an erroneous provocation instruction that
decreased the State’s burden of proof. The court of appeals, however, wholly
failed to analyze the Almanza factors to determine whether Elizondo suffered the
requisite degree of harm.
Analyzing the Almanza factors with respect to this woefully deficient jury
charge shows that Elizondo suffered the requisite degree of harm from the errors
and was deprived of his ability to adequately present his only defense.
Accordinlgy, he should receive a new trial.
ARGUMENT
I. The court of appeals should have analyzed all the elements of
Smith v. State.
Elizondo specifically argued below that the first and second altercations
should be distinguished based on the timing of the events, that the first altercation
was abandoned when he ran to nearly 70 yards and got inside his vehicle, and that
there was no evidence he said or did anything sufficient to provoke the second
attack as a pretext to kill Limon. Rejecting Elizondo’s arguments in one short
paragraph, the court below held:
34
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.241
The court of appeals’ analysis glossed over the distinction between the two
altercations and failed to conduct an analysis under this Court’s decision in Smith
v. State.242 Analyzing the facts of this case under that framework, Elizondo should
have been acquitted. This Court should perform the analysis the court of appeals
improperly refused to perform.
In Smith, this Court addressed the doctrine of “provoking the difficulty,”
which it initially defined as follows:
Provoking the difficulty, as the doctrine of provocation is
commonly referred to in our jurisprudence, is a concept in criminal
law which acts as a limitation or total bar on a defendant’s right to
self-defense. The phrase “provoking the difficulty” is a legal term of
art, and more accurately translates in modern usage to “provoked the
attack.” The rule of law is that if the defendant provoked another to
make an attack on him, so that the defendant would have a pretext for
241
Elizondo, 2014 WL 222834, at *6 (citations omitted).
242
965 S.W.2d 509, 512 (Tex. Crim. App. 1998).
35
killing the other under the guise of self-defense, the defendant forfeits
his right of self-defense.243
The Court specifically addressed the elements of provocation, explaining that for
the factual issue to be raised, the State must show:
(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.244
Applying this analytical construct to the facts, the State must have shown that
Elizondo performed some act or used words that actually provoked the second
attack, the words or acts were the type that would ordinarily provoke an attack, and
Elizondo intended to provoke the second attack to have a pretext for killing
Limon.245
A. There was no evidence that Elizondo performed some act
or used words that actually provoked the second attack.
The evidence in this case showed that Elizondo fled from the initial
altercation and ran to his truck—the only reasonable location to flee given that
Elizondo’s wife was still at the club—only to be pursued by multiple assailants
243
965 S.W.2d at 512.
244
Id.
245
See id.
36
over a long distance in pursuit of vengeance. The evidence showed that the words,
“Van a ver,” could not have actually provoked the second altercation.
As this Court has held, “[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.”246 And as early as 1918, this
Court in Trevino v. State held that the acts alleged to have provoked an altercation
must occur prior to and actually cause the altercation. 247 There, the Court
explained:
Provoking a difficulty is always in direct conflict with
justifiable homicide, and is not permissible unless the accused by his
acts, conduct, or words occasioned or produced the difficulty. When
perfect self-defense is relied upon by the accused, there should be, as
a prerequisite to its impairment, evidence that the accused produced
the occasion for the killing as an excuse for the homicide. His acts,
conduct, or words must precede such condition, and must be
evidenced by the testimony. This is the law under correct legal views
and under the well-considered jurisprudence of this state. These facts
must precede and lead to the homicide. If the difficulty does not so
begin, provoking the difficulty is not a part of the case, and a charge
limiting the right of perfect self-defense would constitute error, and of
such a nature as to constitute its giving necessarily fatal to the
conviction.
….
We are of opinion that this testimony does not raise the issue of
provoking the difficulty. Usually the language that some of the
246
Smith, 965 S.W.2d at 512 (emphasis added).
247
Trevino v. State, 83 Tex. Crim. 562, 565, 204 S.W.2d 996, 997-99 (1918) (op. on reh’g).
37
witnesses impute to defendant, that deceased was the “son of a
harlot,” would be considered a provocation, and had it been used at
the beginning of this difficulty and the inducing cause, it would have
been treated as a cause upon which provoking a difficulty could be
grounded. But, as before stated, provoking a difficulty must precede
and be the occasion of bringing about the difficulty. 248
As an additional example, in Reeves v. State, the First Court of Appeals held
that threats made after an altercation was already in progress could not have
provoked the attack.249 Specifically, the court held:
The State argues that a rational jury could have found beyond a
reasonable doubt that Reeves did or said something that caused
Jackson to attack him and that those words or acts were reasonably
capable of causing an attack based upon both direct and circumstantial
evidence. Although Adams testified that Reeves threatened to kill
Jackson, Reeves did not make those threats until after the fighting had
started. Similarly, Reeves testified that when he and Jackson were
wrestling in the front yard, Jackson pinned him to the ground at one
point, and he bit Jackson on the face in order to get free. Based upon
this uncontroverted testimony, both Reeves's threat and the bite
occurred after he and Jackson were physically fighting in the front
yard. Such threats and conduct could not have provoked a fight that
was already in progress.250
Thus, actual provocation would be a necessary element of any claim by the
State that Elizondo provoked the second altercation. In other words, the State
would have to show that Elizondo’s words, allegedly spoken while Elizondo was
248
Id.
249
Reeves v. State, No. 01-10-00395-CR, 2012 WL 5544770, at *4 (Tex. App.—Houston
[1st Dist.] Nov. 15, 2012) (mem. op., not designated for publication), aff’d, 420 S.W.3d 812
(Tex. Crim. App. 2013); (15 RR 235 (stating that upon hearing those words, Junior continued
chasing Elizondo, but slowed down)).
250
Id.
38
abandoning the first altercation, actually provoked the second altercation.251 Given
the sequence of events, the State failed that burden.
It was undisputed that Elizondo ran through the parking lot, around the
fence, and to his vehicle, and Bryan, Rodrigo, and Junior chased Elizondo the
entire distance, which was approximately 67 yards.252 During the chase, Rodrigo
was yelling at Elizondo to “stop asshole.”253
The only testimony regarding the initial reason for the chase came from
Junior, who claimed that he followed Elizondo to his truck to make sure he left
safely, which is totally consistent with Elizondo’s abandonment of the first
altercation.254 And, Elizondo expressly testified that he ran to his truck to get away
from his attackers and got inside the vehicle.255 Yet upon arriving at the truck and
discovering Elizondo inside it, Junior did not then just make sure that Elizondo
left—he admitted to pounding on Elizondo’s vehicle with his hands, and other
witnesses testified that Junior was also yelling, “Get off, asshole.” 256 In fact,
Rodrigo testified that Junior was trying to get Elizondo to come out of his truck
because Elizondo was already inside.257
251
See Mendoza v. State, 349 S.W.3d 273, 280-81 (Tex. App.—Dallas 2011, pet. ref’d).
252
11 RR 95; 12 RR 178, 180; 13 RR 15, 26, 66; 14 RR 102-03,126, 235; 15 RR 133-34; 15
RR 233; 16 RR 113, 197; 21 RR DX 21.
253
14 RR 102, 126.
254
16 RR 9-10, 25.
255
16 RR 113-14; 21 RR DX 21.
256
13 RR 149, 179; 14 RR 104, 105; 15 RR 42; 16 RR 19.
257
15 RR 80.
39
Junior testified that while Elizondo was running away, Elizondo said the
words, “Van a ver” (in English, “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.258 Thus, those words did not actually provoke the pursuit of
Elizondo by Rodrigo, Bryan, and Junior, which was already underway.
Accordingly, the State’s evidence did not show that any words by Elizondo
actually provoked the second attack.
B. There was no evidence that the words “Van a ver” were
reasonably calculated to provoke an attack or that the
words were used for the purpose and with intent to
provide a pretext.
There simply was no showing that the words, “Van a ver,” were reasonably
calculated to provoke an attack or used for the purpose and with the intent to
provide Elizondo with a pretext for inflicting harm upon Junior or Limon.259 “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.”260
258
15 RR 235.
259
Smith, 965 S.W.2d at 512.
260
Smith, 965 S.W.2d at 517
40
For example, this Court has held that calling a deceased a “son of a bitch”
could reasonably be calculated to cause an attack. 261 Express threats to kill the
complainant, 262 calling the complainant a derogatory name while grabbing the
complainant’s arm with force,263 approaching the complainant while pointing a gun
and yelling obscenities,264 have all been held to be reasonably capable of causing
an attack.
In contrast, this Court in Morrison v. State held that where words on their
face do not appear sufficient to provoke a difficulty, the State must introduce
evidence of the colloquial meaning. 265 For example, in that case, the Court
interpreted a request to discuss a matter “man for man,” and whether those words
were reasonably capable of causing a difficulty. The Court held that “[w]hile it is
true that words alone may provoke a difficulty, they must clearly be designed to do
so. . . . Without any testimony in the record as to the meaning commonly given
261
Bateson v. State, 46 Tex. Crim. 34, 46, 80 S.W. 88, 93 (1904).
262
Malone v. State, No. 06-11-00013-CR, 2011 WL 5221264, at *8 (Tex. App.—Texarkana
Nov. 3, 2011, no pet.) (mem. op., not designated for publication).
263
Osborne v. State, No. 02-11-00010-CR, 2011 WL 5903651, at *3 (Tex. App.—Fort
Worth Nov. 23, 2011, no pet.) (mem. op., not designated for publication) (“Further, the trial
court could have rationally found that appellant's words and acts (approaching Aaron, calling her
a ‘bitch’ and yelling ‘more things,’ and grabbing her arm with ‘force’) were reasonably
calculated to provoke Aaron's attack.”); see, e.g., Guerra v. State, No. 13-99-036-CR, 2000 WL
34251905, at *2 (Tex. App.—Corpus Christi Aug. 17, 2000, no pet.) (not designated for
publication) (“Calling someone a bad name, threatening that person, and throwing rocks at the
person's vehicle are acts which are reasonably capable of causing an attack, or have a reasonable
tendency to cause an attack.”).
264
Clark v. State, No. 04-13-00330-CR, 2014 WL 3843946, at *7 (Tex. App.—San Antonio
Aug. 6, 2014, pet. ref’d) (mem. op., not designated for publication).
265
Morrison v. State, 158 Tex. Crim. 424, 425, 256 S.W.2d 410, 411 (1953).
41
such expression in the community involved in the prosecution, we are powerless to
read into such expression something not apparent on its face.”266
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. 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. Yet, once he discovered Elizondo already inside the vehicle, he
banged on the window to get him out of the truck.
Additionally, there was nothing presented that showed that Elizondo
intended to do anything other than escape the attack by running to his truck. As
this Court explained in Smith,
[t]he third element of the doctrine requires 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 killing the victim. Even though
a person does an act, even a wrongful act, which does indeed provoke
an attack by another, if he had no intent that the act would have such
an effect as part of a larger plan of doing the victim harm, he does not
lose his right of self-defense.267
266
Id.
267
Smith, 965 S.W.2d at 518.
42
There is simply nothing to support a finding that Elizondo intended his words or
actions to provoke Junior into a further fight or Limon into 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.”268 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—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.”269 The statement relied upon by the court of appeals can only support its
decision when taken completely out of context.
For all the foregoing reasons, the evidence was legally insufficient to
support a finding that Elizondo provoked the second altercation. The evidence
showed that Elizondo was entitled to the presumption of reasonableness in Texas
Penal Code 9.32(b)(1)(A) and (B), given that Junior indisputably either (A)
unlawfully and with force entered, or was attempting to enter unlawfully and with
force, Elizondo’s occupied vehicle; or (B) unlawfully and with force removed, or
was attempting to remove unlawfully and with force, Elizondo from his vehicle.
268
Elizondo, 2014 WL 222834, at *6; see 21RRDX21.
269
21RRDX21.
43
Under the law of multiple assailants, the permissive use of deadly force by Jose
against Junior justified his use of deadly force against Limon. 270 The court of
appeals did not complete its legal sufficiency analysis because it stopped with
provocation.271
This Court should conduct the Smith analysis, complete the remaining
analysis of legal sufficiency of the evidence, and render a judgment of acquittal.272
At the very least, this Court should remand to the court of appeals for further
analysis under Smith.273
II. 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
law that is already confusing, at best. Elizondo raised five 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.’”274
270
Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985).
271
Elizondo, 2014 WL 222834, at *6.
272
TEX. R. APP. P. 78.1(c) (providing Court can “ reverse the court's judgment in whole or in
part and render the judgment that the lower court should have rendered).
273
TEX. R. APP. P. 78.1(d).
274
Reeves, 420 S.W.3d at 817.
44
A. The court of appeals erroneously affirmed the trial
court’s submission of a provocation instruction.
A provocation instruction should be submitted to the jury only when “there
is evidence from which a rational jury could find every element of provocation
beyond a reasonable doubt.” 275 As demonstrated in Part I, there was simply no
evidence of provocation. The evidence showed that, under the law of provocation,
Elizondo sufficiently abandoned the first encounter by running away to and getting
inside his truck. 276 The evidence in this case did not show a mere change of
position of the parties during the progress of the encounter. Rather, it showed
Elizondo fleeing from the initial altercation and running to his truck, only to be
pursued by multiple assailants over a long distance in pursuit of vengence.277 And
there was no evidence that Elizondo provoked the second altercation, which was
initiated by Junior. For all the reasons set forth in Part I of this brief, the Court
should find that there was no evidence of provocation of the second altercation to
support submission of that instruction to the jury.
Where the defendant objects to the inclusion of a provocation instruction,
and there is no evidence to support the submission, the reviewing court must
275
Smith, 965 S.W.2d at 514.
276
12 RR 178, 180; 13 RR 15, 26, 66; 14 RR 126, 235; 15 RR 133-34; 15 RR 233; 16 RR
113, 197; 21 RR DX 21.
277
11 RR 95; 12 RR 178, 180; 13 RR 15, 26, 66; 14 RR 102-03,126, 235; 15 RR 133-34; 15
RR 233; 16 RR 113, 197; 21 RR DX 21.
45
reverse if the erroneous submission of the instruction caused some actual harm. 278
When considering harm, the issue for the court is “whether, in the absence of the
provocation instruction, there would have been any chance that the jury would
have found that [appellant] acted in self defense.”279 Because the court of appeals
held there was no error in the charge by submitting a provocation instruction, it did
not reach the question of harm.280 This Court should conduct the analysis or, at the
very least, remand to the court of appeals for consideration of the harm. Certainly,
as more fully demonstrated below, Elizondo suffered at least some harm from the
inclusion of this erroneous charge.
B. 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
threats as justifiable force and on the law of multiple assailants.
278
See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);
Mendoza, 349 S.W.3d at 281-84.
279
Mendoza, 349 S.W.3d at 281 (quoting Flores v. State, No. 06-05-00023-CR, 2008 WL
41388, at *4 (Tex. App.—Texarkana Jan. 3, 2008, pet. ref’d) (mem. op., not designated for
publication)).
280
Elizondo, 2014 WL 222834, at *7-8.
46
The jury charge did not provide an instruction on section 9.04, regarding a
threat of deadly force by production of a weapon.281 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 stop.282
Additionally, the jury charge omitted any reference to the law of multiple
assailants, instead instructing the jury with reference only to Limon’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.283 There was certainly
evidence in the record that multiple attackers were pursuing Elizondo.284 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.”285
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.286
281
See TEX. PENAL CODE ANN. § 9.04.
282
16RR200-201; see Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st
Dist.] 2012, no pet.).
283
Frank, 688 S.W.2d at 868; Lerma v. State, 807 S.W.2d 599, 601 (Tex. App.—Houston
[14th Dist.] 1991, pet. ref’d).
284
17RR19, 21.
285
2Supp.CR3.
286
Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998).
47
The Court held that where a self-defense instruction contains an error to which
counsel did not object—in that case a complete omission of an application
paragraph—the error is subject to review for egregious harm.287
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.”288
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.289 The court erroneously
refused to review these errors or apply a harm analysis. This Court should correct
that error, determine the charge was erroneous, and apply the appropriate harm
standard. At the very least, the Court should remand to the court of appeals to
conduct the harm analysis.
287
Id. at 417.
288
Vega v. State, 394 S.W.3d 514, 518-19 (Tex. Crim. App. 2013) (emphasis added).
289
Elizondo, 2014 WL 222834, at *10.
48
C. 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.
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.”290 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.” 291 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
290
2Supp.CR3.
291
TEX. PENAL CODE ANN. § 9.32 (b)(1)(A)-(B).
49
was attempting to do so.292 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.293
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.294 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.295
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
292
12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134; 15RR233; 16RR113,
197; 21RRDX21.
293
Elizondo, 2014 WL 222834, at *9.
294
2Supp.CR6.
295
2Supp.CR5-6 (emphasis added).
50
elements of murder. In fact, the jury was required to find all the elements of
murder and reject self-defense in order to convict. 296 Defense counsel did not
object to this error, and the court of appeals erroneously held the error was
preserved, but it ultimately held there was no harm.297
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.298 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.”299 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.300
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.”301 Those
“repeated” instructions were completely undermined by the instruction that if it
296
Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
297
Elizondo, 2014 WL 222834, at *9; see supra n.226.
298
Id.
299
Id.
300
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.”).
301
Elizondo, 2014 WL 222834, at *9.
51
rejected provocation, the jury must find Elizondo guilty of murder, yet the court of
appeals did not address that argument.
D. 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 from the errors identified
above. 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.”302
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.303
302
Reeves, 420 S.W.3d at 819.
303
Id. at 816, 819.
52
Here, as in Reeves, the jury charge contained numerous errors and was
incomplete.304 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.305 All the witnesses testified that, at the very least, Junior was beating on
Elizondo’s car and trying to force him to come out. 306 But the jury was never
instructed that, if it believed those facts, a presumption of reasonableness could
arise.307 Instead, in order to raise the presumption, they were instructed that they
304
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 (2013).
305
12RR180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134, 233; 16RR113, 197, 201-203;
21RRDX21.
306
13RR149, 179; 14RR104-105; 15RR42, 80, 237; 16RR29.
307
2Supp.CR.3.
53
had to find that Elizondo knew or had reason to believe that Limon was
committing or attempting to commit “murder.”308
This is not a case where all the witnesses but the defendant testified in
accordance with the State’s theory, as in this Court’s recent decision in Villarreal
v. State. 309 Here, the self-defense justification was more than plausible—it was
supported by numerous witnesses, including testimony from Elizondo, Juan,
Maria, and Agent Balli.310 Nor is the evidence “overwhelming” that Elizondo was
the aggressor with respect to the second altercation, and Limon was clearly
armed.311
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. 312 Instead, all of the language in the charge referred to
Limon’s conduct alone. 313 Under these circumstances, the jury charge failed to
adequately protect Elizondo’s right to argue self-defense.314
Second, any evidence of guilt was not so overwhelming that the jury charge
errors necessarily caused no harm to Elizondo.315 But nevertheless, the jury was
308
Id.
309
No. PD-0332-13, 2015 WL 458146, at *5 (Tex. Crim. App. Feb. 4, 2015).
310
See supra Parts 1C, 2-5 and footnotes referenced therein.
311
Compare Villarreal, 2015 WL 458146, at *5-6.
312
2Supp.CR.3.
313
Id.
314
See Brown v. State, 651 S.W.2d 782, 784 (Tex. Crim. App. 1983).
315
Mendoza, 349 S.W.3d at 282.
54
not only instructed to disregard Elizondo’s self-defense if it found provocation, it
was instructed to find Elizondo guilty of murder.316 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.
Furthermore, self-defense was the focus of the entire case.317 Specifically,
Elizondo’s sole defense centered on the following: (1) he abandoned the difficulty
by running to his truck;318 (2) the club’s bouncers chased Elizondo to his truck
yelling obscenities with the intent to continue an attack on Elizondo;319 (3) Junior
then banged on Elizondo’s window to get him out of the truck;320 (4) Elizondo was
pulled out of his truck (or an attempt was made to do so), and then Limon pointed
a gun at him.321 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).
....
316
Cf. id.
317
See 17RR82.
318
17RR89.
319
17RR90-92.
320
17RR95-96.
321
17RR98.
55
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
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.322
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.323 Furthermore, the state
of the evidence shows harm, given that Elizondo admitted to shooting Limon.324
CONCLUSION AND PRAYER
For all the foregoing reasons, this Court should reverse the judgment of the
lower courts and render a judgment of acquittal or, alternatively, reverse and
remand for further proceedings below.
322
17RR112-114.
323
See 2Supp.CR5-6; Mendoza, 349 S.W.3d at 283.
324
Mendoza, 349 S.W.3d at 283.
56
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
Jose Guadalupe Rodriguez Elizondo
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 13,448 words,
excluding the parts exempted by Rule 9.4.
/s/ Brandy Wingate Voss
Brandy Wingate Voss
57
CERTIFICATE OF SERVICE
On March 13, 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
Email: ted.hake@da.co.hidalgo.tx.us
Email: michael.morris@da.co.hidalgo.tx.us
Lisa C. McMinn
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
58