Opinion issued June 7, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00882-CR
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GERMAN PEREZ-VASQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 13CR0953
MEMORANDUM OPINION
A jury convicted appellant German Perez-Vasquez of murder, and it
assessed punishment at 68 years in prison. See TEX. PENAL CODE § 19.02. On
appeal, Perez-Vasquez raises seven issues. In his first issue, he contends that the
evidence was insufficient to support his conviction. In his next three issues, he
argues that the trial court gave incorrect jury charges during both the guilt-
innocence and punishment phases of trial. By his fifth and sixth issues, Perez-
Vasquez challenges the legal and factual sufficiency of the evidence to support the
jury’s negative finding on the issue of sudden passion during the punishment
phase. Finally, he contends that the trial court erred by entering an affirmative
deadly-weapon finding in its judgment.
We conclude that the evidence was sufficient to support the jury’s verdicts at
both guilt-innocence and punishment, and the jury charges contained no reversible
error. Additionally, the trial court did not err by entering an affirmative deadly-
weapon finding in its judgment. Accordingly, we affirm the trial court’s judgment.
Background
Samantha Escobedo dated the complainant, Erik Calvillo. During or around
the end of their relationship, Escobedo began having a sexual relationship with
Calvillo’s co-worker, appellant German Perez-Vasquez. One night, after spending
the evening together socializing at dinner and then later at a nightclub, Escobedo
invited Calvillo to her home, where he was ambushed and killed by Perez-
Vasquez.
Escobedo pleaded guilty to murder and was sentenced to 15 years in prison.
Perez-Vasquez was charged with murder, and the case was tried to a jury. Because
this appeal involves an argument about the factual sufficiency of the evidence
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related to punishment, our summary of the evidence at trial is presented in a neutral
light.
A grand jury returned an indictment alleging that Perez-Vasquez murdered
Calvillo. In two paragraphs, the indictment alleged that Perez-Vasquez did:
[¶ 1] . . . intentionally or knowingly cause the death of . . . Erik
Calvillo with a router device and/or stabbing and/or cutting [him] with
a knife and/or stabbing and/or cutting [him] with a screwdriver and/or
striking [him] with an object unknown to the grand jury.
[¶ 2] . . . with intent to cause serious bodily injury to . . . Erik Calvillo,
commit an act clearly dangerous to human life that caused the death of
said Calvillo, by hitting [him] with a bottle and/or hitting [him] with a
router device and/or stabbing and/or cutting [him] with a knife and/or
stabbing and/or cutting [him] with a screwdriver and/or striking [him]
with an object unknown to the grand jury.
At trial, the State called Calvillo’s friend, Jose Cruz, as a witness. Cruz
testified about his interactions with Calvillo on the night he was killed. Cruz said
that he was out with some friends when Calvillo called him. They met at a food
truck outside a bar, and Calvillo said that “he had a problem.” Cruz left Calvillo at
the bar and drove his other friends home. He then returned to the bar, and he and
Calvillo decided to go to the Olympus Club. Before they arrived at the club,
Calvillo “found out on his cell phone that his girlfriend had posted something.”
Calvillo went inside the club, and Cruz stayed outside. Calvillo was ushered out of
the club by security. They left and drove to Calvillo’s house.
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Cruz knew that Calvillo had gotten into a fight at the club. He also knew that
Calvillo was upset with his girlfriend and with Perez-Vasquez. Cruz testified that
Calvillo was “sad” and “hurt.” He also testified that Calvillo talked to numerous
people on the phone while the two were at his house. Eventually, Calvillo decided
he wanted to go to his girlfriend’s house.
Cruz drove Calvillo to Escobedo’s house. Before he drove him there,
however, Cruz asked Calvillo if “he was carrying a weapon.” According to Cruz,
Calvillo never had a weapon. Cruz dropped Calvillo off at Escobedo’s house. He
waited while Calvillo and Escobedo had a conversation in the yard in front of her
house. Escobedo told Cavillo to “come on in.” Cruz stayed parked in front of
Escobedo’s house for several minutes. He left around 6:10 a.m. and returned to
Calvillo’s house. Cruz learned later that week that Calvillo had been killed at
Escobedo’s house.
Escobedo also testified at trial. Initially, she discussed her relationship with
Calvillo. She said that she had been dating him for six to eight months before his
death, but she had tried to end the relationship “weeks prior.” Escobedo also
testified that three or four weeks before Calvillo’s death, she had become
romantically involved with Perez-Vasquez. Calvillo did not know about her
relationship with Perez-Vasquez. Escobedo acknowledged that she pleaded guilty
to murder and tampering with evidence. The prosecutor asked Escobedo about
4
statements she had given to the police during the investigation into Calvillo’s
death. She testified that she had lied “a lot,” but she agreed that she would tell only
the truth during her testimony.
According to Escobedo, she had invited people to her house to eat oysters on
the evening of Calvillo’s death. While they were eating oysters, Calvillo, Calvillo’s
father Rogelio, and Perez-Vasquez showed up at her house, uninvited. Escobedo
and Calvillo argued during the oyster party. Afterwards, Perez-Vasquez, Calvillo,
and Rogelio left together. Later, Calvillo returned to Escobedo’s house, and they
argued again. She said that he embarrassed her in front of her friends. Escobedo
and her cousin then decided to go dancing. At that time, she had consumed
approximately one dozen beers and “four or five” tequila shots. Because of her
drinking, the next day she had trouble remembering the rest of what happened that
night.
Escobedo and her cousin left for the Olympus Club around midnight. On the
way, they stopped by the Rodeo Club because Perez-Vasquez had called and asked
Escobedo to pick him up. After they arrived at the Olympus Club, Perez-Vasquez
and Escobedo danced. While they were dancing, Calvillo arrived at the club, and
he punched Perez-Vasquez in the eye. Calvillo looked “angry and upset.” After the
altercation, Perez-Vasquez, Escobedo, and her cousin left the club. They returned
to Escobedo’s house. Perez-Vasquez was quiet during the drive back, and he
5
appeared to be agitated. Calvillo’s truck was parked outside of her house when
they arrived. Escobedo’s cousin parked a few houses down, and Escobedo and
Perez-Vasquez snuck into the house to avoid an altercation. Escobedo’s three
children were asleep in her bedroom.
By the time they got inside, Calvillo’s truck was gone. But as Escobedo
closed the door, Calvillo approached the house. He briefly spoke to someone on
the phone, and he left. Perez-Vasquez told Escobedo to call Calvillo and try to get
him to come back to her house. Escobedo testified that Perez-Vasquez was
“angry.” “[H]e wanted to fight. He wanted a physical rematch.”
Perez-Vasquez gave Escobedo instructions on what to do when Calvillo
arrived. He told her to sit Calvillo “on the first couch, not on the first one, on the
second one with his back to the hole so that way, you know, he has no access to
see what’s behind him or who was coming behind him.” He also told Escobedo to
distract Calvillo and that is when the fight would happen. Escobedo called Calvillo
to lure him to the house. When Calvillo arrived and knocked on the door, Perez-
Vasquez was hiding in the bathroom.
Once Escobedo sat Calvillo on the couch, Perez-Vasquez came from behind
him with a bottle and a tool in his hands. Perez-Vasquez broke the bottle on the
back of Calvillo’s head. Calvillo, who was unarmed, stood up and started to hit
Perez-Vasquez with his hands. Perez-Vasquez asked for help, so Escobedo pushed
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Calvillo. Perez-Vasquez then got on top of Calvillo, and put his knee on his neck.
Perez-Vasquez started hitting Calvillo’s head with a Wi-Fi router. Calvillo said,
“It’s over. Leave me alone. It’s over.” Perez-Vasquez then grabbed a knife and
started cutting and stabbing Calvillo. Perez-Vasquez struck him “lots of time[s]”
with the knife. Additionally, he used a screwdriver to stab Calvillo in the stomach.
Finally, Escobedo saw Perez-Vasquez dig the knife into Calvillo’s head “one last
time.”
After Calvillo died, Perez-Vasquez moved the body from the living room to
a bedroom. Escobedo provided him with laces to bind Calvillo’s wrists and a
plastic bag, which they put over the body. They tried to mop up the blood. They
also painted over blood that was on the walls.
Perez-Vasquez left Escobedo’s house to get his truck. Escobedo and Perez-
Vasquez discussed dumping the body in Galveston or leaving the state. Instead,
they decided to turn themselves in. They agreed to lie to the police by saying that
Calvillo was carrying a gun and a knife and that he had threatened Escobedo.
Additionally, they agreed to tell the police that Calvillo “had broken the door,” that
he “grabbed” Escobedo “by force,” and that he held a knife to her neck “with a gun
on the other side.” Perez-Vasquez and Escobedo turned themselves in to the police.
7
In addition to Cruz and Escobedo, the State called several other witnesses to
testify at trial, including police officers and forensic scientists involved in
investigating Calvillo’s death.
Two police officers who searched Escobedo’s house described the location
of the body and the blood on the walls. Both officers testified that there was no
evidence indicating that someone had attempted to forcibly enter the home.
Another officer testified about his interviews with Perez-Vasquez and
Escobedo. The officer described how Perez-Vasquez and Escobedo looked when
they turned themselves in. Perez-Vasquez had the beginnings of a black eye and a
possible fat lip. He had no other visible injuries.
A forensic pathologist discussed the results of the autopsy. He described
how Calvillo’s wrists were tied together and a trash bag was over his head. He
explained the various stab wounds, blunt force wounds, chopping wounds, and
cutting wounds that had been inflicted upon Calvillo’s head and body. Calvillo also
suffered asphyxia. The pathologist testified that Calvillo’s cause of death was blunt
force trauma and sharp force trauma to the head. He also testified that stabbing
someone with a knife or screwdriver—or striking somebody multiple times with a
wireless network router—could cause serious bodily injury or death.
Finally, a forensic scientist who conducted DNA testing on objects collected
from Escobedo’s house testified about the results of her tests. Perez-Vasquez could
8
not be ruled out as a DNA contributor on several objects, including a screwdriver
and knife. His DNA was found under Calvillo’s fingernails.
After the State rested, the defense called two witnesses during its case-in-
chief, Perez-Vasquez and his brother Jimmi.
Perez-Vasquez testified that he went to Escobedo’s house for oysters with
Calvillo and Rogelio. He said that Calvillo was furious when they left and was
giving him “a bad look” in the car. Perez-Vasquez testified that on their way back
to Rogelio’s house, Escobedo sent him a threatening text message that warned him
to take care of himself. He was “very scared.” After Calvillo dropped them off,
Perez-Vasquez and Rogelio went to the Rodeo Club. Later Escobedo picked up
Perez-Vasquez at the Rodeo Club, and they went dancing at the Olympus Club for
several hours. Calvillo came to the Olympus Club and punched Perez-Vasquez in
the eye. Perez-Vasquez left the Olympus Club with Escobedo and her cousin.
Perez-Vasquez testified that they returned to Escobedo’s house and
Calvillo’s truck was parked in front. Escobedo’s cousin dropped them off several
houses away. Escobedo had left her keys at the club, so they had to force their way
into her house. Perez-Vasquez heard Calvillo and what sounded like other people,
getting out of Calvillo’s truck. Calvillo walked up to Escobedo’s front door, and he
used the light of his phone to try to see inside. He left after a few minutes, which
allowed Perez-Vasquez and Escobedo to get inside the house. Once inside, Perez-
9
Vasquez received several calls from Calvillo, but he did not answer. When he
called back, Calvillo threatened him. Perez-Vasquez thought Calvillo would kill
him.
Later, Perez-Vasquez and Escobedo heard someone kicking the front door.
They decided to call 911. Escobedo made the call, but she was unable to complete
it. They heard noises that sounded like someone had gotten into the house. Perez-
Vasquez said that Escobedo told him to hide. He grabbed a screwdriver and a
bottle for protection; he thought Calvillo had come to Escobedo’s house with a
friend, and that he might have a gun. He was “scared,” and he hid in a back room.
Calvillo entered and asked Escobedo where Perez-Vasquez was. Perez-Vasquez
then heard Escobedo saying, “Don’t kill me, Honey.” He thought Calvillo was
going to kill her.
Perez-Vasquez crawled out of the room where he was hiding. He saw
Calvillo grabbing Escobedo by her hair. He intended to knock Calvillo out with a
bottle and call the police. He approached Calvillo from behind and hit him with the
bottle. Calvillo began acting more aggressively after he was hit with the bottle.
Perez-Vasquez realized that Calvillo had a knife in his hand. Calvillo started trying
to stab him with the knife, and Perez-Vasquez tried to defend himself with the
screwdriver. Perez-Vasquez testified that Calvillo was stronger than he was.
10
At some point during the struggle, Perez-Vasquez grabbed a wireless router
and began hitting Calvillo with it. He could not remember how many times he hit
him. Calvillo was threatening to kill them and saying that more people were
coming. Escobedo hit Calvillo in the head with something, and Perez-Vasquez was
able to get out from underneath him. Calvillo never stopped hitting Perez-Vasquez.
Escobedo put a pillow over Cavillo’s face.
During the struggle, a phone rang and things started to calm down. Calvillo
started “mocking” Perez-Vasquez and Escobedo by saying, “I told you that I
wasn’t alone here.” Escobedo told Perez-Vasquez, “We have to get the children
out of here. Finish him, or I will finish him.” Perez-Vasquez testified that he felt
desperate, and he grabbed the knife and started hitting Calvillo in the head because
he thought other people were coming into the house. Eventually, Calvillo stopped
moving. Perez-Vasquez told Escobedo to call the police, which she did, but she
hung up the phone because she did not want to traumatize her kids.
Jimmi Perez-Vasquez testified on behalf of his brother during the guilt-
innocence phase of trial. He testified that Calvillo called him the day that he was
killed. Calvillo was “aggressive, angry” on the phone and looking for Jimmi’s
brother, whom he had “just found” with Escobedo. Calvillo threatened that he and
some friends were going to retaliate against Perez-Vasquez. Jimmi called his
brother, who confirmed that Calvillo had punched him and said he was “coming
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back.” Jimmi did not tell his brother about Calvillo’s threats. He testified that he
was concerned for his brother’s safety, but he did not call the police because he did
not know where Escobedo lived. The next day, Jimmi saw his brother at the house
they shared. Perez-Vasquez took a bath, and then Jimmi told him to “turn himself
in.”
Before closing arguments, the trial court held a charge conference. Defense
counsel requested an instruction on defense of property, which the trial court
denied. Defense counsel did not request an accomplice-witness instruction. The
jury charge did not include a special issue or question about whether Perez-
Vasquez used a deadly weapon during the commission of the offense.
The jury found Perez-Vasquez guilty of murder as alleged in the indictment.
During the punishment phase, the State offered all of the evidence from the
guilt-innocence phase, and it then rested. Several people testified on Perez-
Vasquez’s behalf during the punishment phase, including his father, mother,
brother, and wife. They discussed many of Perez-Vasquez’s good qualities,
including his parenting ability. Perez-Vasquez also testified during punishment.
In the punishment-phase jury charge, the trial court defined “sudden
passion” and “adequate cause.” It instructed the jury that if it believed Perez-
Vasquez had “proved by a preponderance of the evidence that . . . having
committed the offense of murder,” he “caused the death of Erik Calvillo under the
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immediate influence of sudden passion arising from an adequate cause, you must
make an affirmative finding as to the special issue.” The charge instructed the jury
that if it did not believe Perez-Vasquez had proved the special issue by a
preponderance of the evidence, it must make a negative finding. The charge
included two general unanimity instructions. It stated: “It is your Foreperson’s duty
to preside at your deliberations . . . and when you have unanimously agreed upon
a verdict . . . to certify to your verdict.” It also contained another reference to the
jury reaching “a unanimous verdict on the punishment.” The jury question on the
special issue stated:
Do you find by a preponderance of the evidence that on the occasion
in question, at the time of the commission of the offense for which
Perez-Vasquez is on trial, he “caused the death of Erik Calvillo while
he, . . . was under the immediate influence of sudden passion arising
from an adequate cause?
The jury answered the special issue in the negative, and it assessed punishment at
68 years in prison.
The trial court entered a judgment based on the jury findings. Under the
“Findings on Deadly Weapon” section of the judgment, the trial court entered,
“YES, NOT A FIREARM.”
Perez-Vasquez appealed.
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Analysis
Perez-Vasquez raises seven issues on appeal. First, he challenges the
sufficiency of the evidence to support his conviction. By his next three issues, he
contends that the trial court gave erroneous instructions in the jury charges during
both the guilt-innocence and punishment phases of trial. In his fifth and sixth
issues, Perez-Vasquez argues that the evidence was legally and factually
insufficient to support the jury’s negative finding on the issue of sudden passion at
the punishment phase of trial. Finally, he argues that the trial court erred by
entering an affirmative deadly-weapon finding in the judgment.
I. Sufficiency of the evidence
Perez-Vasquez challenges the sufficiency of the evidence to support his
conviction. He argues that the evidence was insufficient because it showed that he
acted in defense of himself or Escobedo, and therefore a reasonable jury could not
have rejected that evidence and found him guilty of murder.
We review the sufficiency of the evidence to support a criminal conviction
by determining whether, after viewing the evidence in the light most favorable to
the verdict, the trier of fact was rationally justified in finding the essential elements
of the crime beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902
(Tex. Crim. App. 2010). We measure the evidence “by the elements of the offense
as defined by the hypothetically correct jury charge for the case.” Malik v. State,
14
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As the exclusive judge of the facts,
the jury may believe or disbelieve all or any part of a witness’s testimony.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that
the factfinder resolved any conflicting inferences in favor of the verdict, and we
defer to that resolution. See Brooks, 323 S.W.3d at 922. On appeal we may not
reevaluate the weight and credibility of the record evidence and thereby substitute
our own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007).
A person commits the offense of murder if he “intentionally or knowingly
causes the death of an individual,” or if he “intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an
individual.” TEX. PENAL CODE § 19.02(b)(1), (b)(2); see Smith v. State, 355 S.W.3d
138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
Self-defense may be raised against a charge of murder as justification for a
defendant’s actions and in support of an acquittal. See, e.g., TEX. PENAL CODE
§§ 9.31–.33; Alonzo v. State, 353 S.W.3d 778, 781–82 (Tex. Crim. App. 2011). “A
person is justified in using force against another when and to the degree the actor
reasonably believes the force is immediately necessary to protect the actor against
the other’s use or attempted use of unlawful force . . . .” TEX. PENAL CODE
§ 9.31(a). Similarly, a “person is justified in using deadly force against another . . .
15
when and to the degree the actor reasonably believes the deadly force is
immediately necessary . . . to protect the actor against the other’s use or attempted
use of unlawful deadly force.” Id. § 9.32(a); see Smith, 355 S.W.3d at 145.
Additionally, a person is justified in using force or deadly force to protect a
third person if:
(1) under the circumstances as the actor reasonably believes them
to be, the actor would be justified under Section 9.31 [self-
defense] or 9.32 [deadly force in defense of person] in using
force or deadly force to protect himself against the unlawful
force or unlawful deadly force he reasonably believes to be
threatening the third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is
immediately necessary to protect the third person.
TEX. PENAL CODE § 9.33. A person defending on the grounds of defense of a third
person stands in the shoes of the third person. Hughes v. State, 719 S.W.2d 560,
564 (Tex. Crim. App. 1986). “So long as the accused reasonably believes that the
third person would be justified in using [force] to protect himself, the accused may
step in and exercise [force] on behalf of that person.” Id. Thus, the use of force to
protect a third person is justified in any situation in which the third person would
be justified in using force to protect himself. Id.
A “reasonable belief” in this context is defined as one that would be held by
“an ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL
CODE § 1.07(a)(42). “Deadly force” is force “intended or known by the actor to
16
cause, or in the manner of its use or intended use is capable of causing, death or
serious bodily injury.” Id. § 9.01(3). “Serious bodily injury” is an injury that
creates a “substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. § 1.07(a)(46).
In a claim of self-defense, “a defendant bears the burden of production,”
while “the State . . . bears the burden of persuasion to disprove the raised defense.”
Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The defendant’s
burden of production requires him to adduce some evidence that would support a
rational jury finding in his favor on the defensive issue. See Krajcovic v. State, 393
S.W.3d 282, 286 (Tex. Crim. App. 2013); Shaw v. State, 243 S.W.3d 647, 657–58
(Tex. Crim. App. 2007). By contrast, the State’s “burden of persuasion is not one
that requires the production of evidence, rather it requires only that the State prove
its case beyond a reasonable doubt.” Zuliani, 97 S.W.3d at 594 (citing Saxton v.
State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)).
“When a jury finds the defendant guilty, there is an implicit finding against
the defensive theory.” Id. A jury, however, is not permitted to reach a speculative
conclusion. Elizondo v. State, 487 S.W.3d 185, 203 (Tex. Crim. App. 2016). Nor is
it permitted to disregard undisputed facts that allow only one logical inference.
17
Evans v. State, 202 S.W.3d 158, 162–63 (Tex. Crim. App. 2006); Satchell v. State,
321 S.W.3d 127, 132 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
In reviewing the sufficiency of the evidence when a jury has rejected a claim
of self-defense, in addition to considering the essential elements of the offense, we
must determine whether, after viewing all the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found against the appellant
on the self-defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914;
see Smith, 355 S.W.3d at 144–45. When some evidence, if believed, supports a
self-defense claim, but other evidence, if believed, supports a conviction, we “will
not weigh in on this fact-specific determination, as that is a function reserved for a
properly instructed jury.” Reeves v. State, 420 S.W.3d 812, 820 (Tex. Crim. App.
2013).
Perez-Vasquez contends that the jury could not have found against him
beyond a reasonable doubt on the issues of use of deadly force in defense of
himself and in defense of a third person. See TEX. PENAL CODE §§ 9.32–.33. In
support of this argument, he relies upon testimony that indicated that Calvillo was
angry throughout the night and made threatening statements about him to other
people. He also relies upon his own testimony in which he claimed that Calvillo
threatened him earlier in the night, kicked in the door to Escobedo’s house and
grabbed her by the hair, and was armed with a knife. Perez-Vasquez contrasts this
18
evidence with that presented by the State. Specifically, he questions the strength
and reliability of Escobedo’s testimony, which he characterizes as the “central
evidence that the State offered in support of [its] contention that” he murdered
Calvillo without “legal justification,” because she had lied previously and admitted
to being intoxicated on the night of the murder.
The jury’s decision to reject Perez-Vasquez’s defensive claims, however,
ultimately hinged on the credibility of the witnesses. “As factfinder, the jury is
entitled to judge the credibility of witnesses, and can choose to believe all, some,
or none of the testimony presented by the parties.” Chambers, 805 S.W.2d at 461.
The statements of a defendant and his witnesses do not conclusively prove a claim
of self-defense. See Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003);
see also Smith, 355 S.W.3d at 146.
Perez-Vasquez’s testimony and the evidence that suggested he acted in
self-defense evidently was not believed by the jury, and thus did not render the
evidence in the case insufficient to support the jury’s verdict. See Chambers, 805
S.W.2d at 461. Although there was some evidence that Perez-Vasquez reasonably
believed that deadly force was immediately necessary to protect himself or
Escobedo, other evidence supported the contrary position. For example, Escobedo
and Cruz testified that Calvillo did not have a weapon when he entered her house.
Both of them testified that Escobedo invited Calvillo into the house. Additionally,
19
Escobedo testified that Perez-Vasquez attacked Calvillo from behind while he was
sitting on the couch.
Viewing the evidence in the light most favorable to the verdict, a rational
factfinder could have found beyond a reasonable doubt against Perez-Vasquez on
the issues of self-defense and defense of a third person. See Saxton, 804 S.W.2d at
914; Williams v. State, 226 S.W.3d 611, 617 (Tex. App.—Houston [1st Dist.]
2007, no pet.). We overrule Perez-Vasquez’s challenge to the sufficiency of the
evidence.
II. Jury charge
In his second, third, and fourth issues Perez-Vasquez challenges the jury
charges the trial court gave at the guilt-innocence and punishment phases of trial.
We use a two-step process to review allegations of charge error. See Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether
error exists in the charge. Id. If error does exist, we review the record to determine
whether the error caused sufficient harm to require reversal of the conviction. Id. at
744. If the appellant preserved error by timely objecting to the charge, we will
reverse if “some harm” resulted from the error. Id. at 743. When the defendant fails
to object to the charge, we will not reverse based on charge error unless the record
shows “egregious harm” to the defendant. Id. at 743–44 (citing Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984)); see also Bluitt v. State, 137 S.W.3d
20
51, 53 (Tex. Crim. App. 2004); Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d).
A. Defense-of-property instructions
In his second issue, Perez-Vasquez argues that the trial court erred by
denying a request for defense-of-property instructions in the guilt-innocence jury
charge. See TEX. PENAL CODE §§ 9.41–.43.
A trial court must charge the jury on any defensive issue raised by the
evidence, “regardless of its substantive character.” Brown v. State, 955 S.W.2d
276, 279 (Tex. Crim. App. 1997). A defendant is entitled to an affirmative
defensive instruction on every issue raised by the evidence regardless of whether
the evidence is strong, feeble, unimpeached, or contradicted, and even if the trial
court is of the opinion that the evidence is not entitled to belief. Id. The jury alone
decides whether to accept or reject a properly raised defensive theory. See Sparks
v. State, 177 S.W.3d 127, 131 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In
determining whether the testimony of the accused raises an issue of self-defense,
the truth of the accused’s testimony is not at issue. Rodriquez v. State, 544 S.W.2d
382, 383 (Tex. Crim. App. 1977). For a defendant to be entitled to an instruction in
the jury charge regarding a defensive issue, there must be evidence, from any
source, “on each element of the defense.” Shaw, 243 S.W.3d at 657.
21
Perez-Vasquez contends that he was entitled to a jury instruction under
sections 9.41, 9.42, and 9.43 of the Penal Code. A person “in lawful possession of
land or tangible, movable property is justified in using force against another when
and to the degree the actor reasonably believes the force is immediately necessary
to prevent or terminate the other’s trespass on the land or unlawful interference
with the property.” See TEX. PENAL CODE § 9.41(a). As relevant to the facts of this
case, a person is justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against the other under
Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force
is immediately necessary:
(A) to prevent the other’s imminent commission of arson,
burglary, robbery, aggravated robbery, theft during the
nighttime, or criminal mischief during the nighttime . . .
. . . and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by
any other means; or
(B) the use of force other than deadly force to protect or
recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily
injury.
22
Id. § 9.42. A person is justified in using force or deadly force to protect property of
a third person if, “under the circumstances as he reasonably believes them to be,
the actor would be justified under Section 9.41 or 9.42 in using force or deadly
force to protect his own land or property,” and:
(1) the actor reasonably believes the unlawful interference
constitutes attempted or consummated theft of or criminal
mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land
or property;
(B) he has a legal duty to protect the third person’s land or
property; or
(C) the third person whose land or property he uses force or
deadly force to protect is the actor’s spouse, parent, or
child, resides with the actor, or is under the actor’s care.
Id. § 9.43.
No evidence established that Perez-Vasquez had “lawful possession” of
Escobedo’s property, which would have entitled him to a defense-of-property
instruction without requiring him to establish the additional elements of section
9.43, which applies to protection of a third person’s property. “Whether someone
has lawful possession of property will depend on the nature of the property, the
circumstances under which it is held, and the law applicable to such property and
such circumstances.” Breakiron v. State, 79 S.W.3d 103, 106 (Tex. App.—
23
Houston [1st Dist.] 2002, no pet.). Proof of ownership is one of the elements a
defendant must establish to be entitled to an instruction solely under section 9.41.
Thompson v. State, 445 S.W.3d 408, 411 (Tex. App.—Houston [1st Dist.] 2013,
pet. ref’d). “Possession” is defined as “actual care, custody, control, or
management.” TEX. PENAL CODE § 1.07(a)(39). Perez-Vasquez argues that
Escobedo’s act of inviting him into her home was sufficient to establish his “lawful
possession” of her property. But this evidence does not establish that he had actual
care, custody, control, or management of her property. See id. Thus, we conclude
that he did not have lawful possession of her property. See id.; see also Breakiron,
79 S.W.3d at 106. As a result, Perez-Vasquez only could have been entitled to a
defense-of-property instruction if he produced some evidence to support all of the
elements of section 9.43. See Shaw, 243 S.W.3d at 657; TEX. PENAL CODE §§
9.41–.43.
No evidence established that Perez-Vasquez believed Calvillo was
attempting to steal Escobedo’s property or cause criminal mischief to it. See TEX.
PENAL CODE § 9.43(1); see also id. § 28.03 (criminal mischief); id. § 31.03 (theft).
Additionally, no evidence established that Escobedo requested protection from
Perez-Vasquez, that he had a legal duty to protect her land or property, or that she
was his spouse, parent, or child, that she resided with him, or that she was under
his care. See id. § 9.43(2). Perez-Vasquez contends that a request for protection can
24
be inferred from the evidence that he heard Escobedo begging for her life, but that
is not equivalent to a request that he protect her “land or property,” id. §
9.43(2)(A), and an instruction about deadly force in defense of a person actually
was given. See id. § 9.33.
Because the evidence did not support all of the required elements, Perez-
Vasquez was not entitled to a defense-of-property instruction. See Shaw, 243
S.W.3d at 657. As a result, the trial court did not err by refusing to give his
requested instruction. We overrule this issue.
B. Accomplice-witness instruction
Perez-Vasquez next contends that the trial court erred by failing to instruct
the jury that accomplice-witness testimony must be independently corroborated.
Article 38.14 of the Code of Criminal Procedure provides: “A conviction cannot be
had upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the corroboration
is not sufficient if it merely shows the commission of the offense.”
The State acknowledges that Escobedo was an accomplice witness as a
matter of law because she was charged with, and pleaded guilty to, Calvillo’s
murder at the time of Perez-Vasquez’s trial. When a witness is an accomplice-
witness as a matter of law, the trial court has an affirmative duty to submit an
accomplice-witness instruction to the jury, and the failure to instruct the jury
25
accordingly is error. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011);
See Torres v. State, 408 S.W.3d 400, 404 (Tex. App.—Houston [1st Dist.] 2012,
no pet.). The State concedes that the trial court did not include an accomplice-
witness instruction in the jury charge. As a result, we conclude that the trial court
erred by failing to exercise its independent duty to instruct the jury that
accomplice-witness testimony must be corroborated. See Torres, 408 S.W.3d at
404.
Perez-Vasquez has conceded that this issue was not preserved by an
objection to the jury charge in the trial court. We therefore review this charge error
under the egregious-harm standard of review. See Almanza, 686 S.W.2d at 171;
Torres, 408 S.W.3d at 404. Under that standard, the omission of an accomplice-
witness instruction is generally harmless unless the corroborating non-accomplice
evidence is ‘“so unconvincing in fact as to render the State’s overall case for
conviction clearly and significantly less persuasive.’” Herron v. State, 86 S.W.3d
621, 632 (Tex. Crim. App. 2002) (quoting Saunders v. State, 817 S.W.2d 688, 692
(Tex. Crim. App. 1991)). We consider the extent of any harm “in light of 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.” Saunders, 817 S.W.2d at 690
(quoting Almanza, 686 S.W.2d at 171).
26
To measure the sufficiency of the corroborating evidence, we eliminate the
accomplice evidence from the record and determine whether the remaining
inculpatory evidence tends to connect the defendant to the offense. Malone v.
State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). This evidence may be direct
or circumstantial. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). In
evaluating the non-accomplice evidence, we consider its reliability and the strength
of its tendency to connect the defendant to the crime. Herron, 86 S.W.3d at 632.
Corroborating evidence is reliable if “there is no rational and articulable basis for
disregarding it or finding that it fails to connect the defendant to the offense.” Id. at
633.
“It is well established that appellant’s admission or confession, under most
circumstances, will be sufficient to corroborate the accomplice witness.” Jackson
v. State, 516 S.W.2d 167, 171 (Tex. Crim. App. 1974); see Joubert v. State, 235
S.W.3d 729, 731 (Tex. Crim. App. 2007). Perez-Vasquez admitted that he was
involved in, and actively participated in, the killing of Calvillo. Although his
version of events differed from Escobedo’s, Perez-Vasquez’s admission that he
was involved in the events was sufficient to corroborate and connect him to the
offense. See Joubert, 235 S.W.3d at 732. Corroborating evidence need not directly
connect a defendant to an offense or be sufficient by itself to establish guilt. Cathey
v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). “The evidence must simply
27
link the accused in some way to the commission of the offense and show that
rational jurors could conclude that the evidence sufficiently tended to connect the
accused to the offense.” Hernandez v. State, 454 S.W.3d 643, 648 (Tex. App.–
Houston [1st Dist.] 2014, pet. ref’d). In addition to Perez-Vasquez’s testimony,
other evidence corroborated Escobedo’s testimony and linked him to the offense.
For example, a forensic scientist testified that Perez-Vasquez could not be ruled
out as a contributor of DNA found on evidence collected at the scene.
Perez-Vasquez’s testimony and forensic evidence introduced by the State
corroborated Escobedo’s testimony and connected Perez-Vasquez to the offense.
See Joubert, 235 S.W.3d at 732. As a result, he did not suffer egregious harm by
the trial court’s failure to instruct the jury that Escobedo’s testimony had to be
independently corroborated. See Herron, 86 S.W.3d at 632; Paredes v. State, No.
01-15-00708-CR, 2017 WL 817170, at *9–11 (Tex. App.—Houston [1st Dist.]
Mar. 2, 2017, pet. ref’d) (mem. op., not designated for publication). We overrule
this issue.
C. Sudden-passion instruction
Perez-Vasquez contends that he suffered egregious harm because the
punishment-phase jury charge allowed the jury to return a non-unanimous verdict
on the special issue of sudden passion. During oral arguments, the State conceded
28
that the jury charge did not include a proper instruction requiring unanimity as to
sudden passion.
If a defendant has been convicted of murder, he may argue at the
punishment phase of trial that he caused the death of the complainant while under
the immediate influence of sudden passion arising from an adequate cause. TEX.
PENAL CODE § 19.02(d); London v. State, 325 S.W.3d 197, 207 (Tex. App.—
Dallas 2008, pet. ref’d). If the defendant proves this issue in the affirmative by a
preponderance of the evidence, the offense is reduced from a first-degree felony to
a second-degree felony. TEX. PENAL CODE § 19.02(d); London, 325 S.W.3d at 207.
Code of Criminal Procedure article 37.07, section 3(c) provides:
If the jury finds the defendant guilty and the matter of punishment is
referred to the jury, the verdict shall not be complete until a jury
verdict has been rendered on both the guilt or innocence of the
defendant and the amount of punishment. In the event the jury shall
fail to agree on the issue of punishment, a mistrial shall be declared
only in the punishment phase of the trial, the jury shall be discharged,
and no jeopardy shall attach.
The Court of Criminal Appeals interpreted a prior version of this statute as
requiring the jury to agree unanimously on the issue of sudden passion. See
Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000). This court previously
has held that the jurors must be unanimous in finding either that the defendant did
or did not act under the immediate influence of sudden passion. Cornett v. State,
405 S.W.3d 752, 758 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). In other
29
words, if the jury fails to unanimously agree that the defendant did act under the
influence of sudden passion, it does not automatically follow that they
unanimously agreed the defendant did not act under the influence of sudden
passion. If there is no unanimous agreement either way, the trial court must declare
a mistrial. Sanchez, 23 S.W.3d at 33.
The jury charge, in relevant part, instructed the jury:
. . . if you believe the Defendant proved by a preponderance of the
evidence that the Defendant, having committed the offense of murder,
caused the death of Erik Calvillo under the immediate influence of
sudden passion arising from adequate cause, you must make an
affirmative finding as to the special issue, and the punishment range,
dependent upon your answer below, would be confinement in the
institutional division of the Texas Department of Criminal Justice for
any term of not more than twenty (20) years or less than two (2)
years. . . . .
But, if you do not believe the Defendant proved by a
preponderance of the evidence that the Defendant, having committed
the offense of murder, caused the death of Erik Calvillo under the
immediate influence of sudden passion arising from adequate cause,
you must make a negative finding as to the special issue, and the
punishment range, dependent upon your answer below, would be
confinement in the institutional division of the Texas Department of
Criminal Justice for life or for any term of not more than ninety-nine
(99) years or less than five (5) years. . . . .
The charge also included general unanimity instructions.
The jury charge was essentially identical to the one held to be erroneous in
Cornett. The court did submit a separate verdict form asking the jury if it found by
a preponderance of evidence that Perez-Vasquez was under the immediate
30
influence of sudden passion arising from adequate cause at the time he caused
Calvillo’s death. In response to the question posed on the special issue form, the
jury responded “No, we do not.” Even when combined with the sudden-passion
and general unanimity instructions, the charge only ensured the unanimity of a
finding from the jury that Perez-Vasquez did act under the influence of sudden
passion. See Cornett, 405 S.W.3d at 760. The response to the special issue did not
indicate that the jury also unanimously agreed that Perez-Vasquez did not act
under the influence of sudden passion. Because the charge allowed for a non-
unanimous finding that Perez-Vasquez did not act with sudden passion, the charge
was erroneous.
Because defense counsel did not object to the jury charge, we will reverse
only if upon a determination that the error resulted in egregious harm. Bluitt, 137
S.W.3d at 53. In considering the question of egregious harm, we ask whether the
defendant suffered actual harm from the error, rather than what harm he may have
theoretically incurred. See Cornett, 405 S.W.3d at 761; Ellison v. State, 86 S.W.3d
226, 227 (Tex. Crim. App. 2002). The inquiry is a factual one and requires an
analysis of the record as a whole, including “the entire jury charge, the state of the
evidence, including contested issues and the weight of the probative evidence, the
argument of counsel, and all other relevant information revealed by the record as a
whole.” Ellison, 86 S.W.3d at 227.
31
While the charge did not specifically instruct the jury that it must be
unanimous in deciding that Perez-Vasquez did not act under the influence of
sudden passion, it also did not specifically direct a negative response to the special
issue in the event of nonunanimity. See Cornett, 405 S.W.3d at 761. The
arguments of counsel at trial did not encourage a finding against Perez-Vasquez
based upon a failure to come to a unanimous decision that he acted with sudden
passion, rather than on a unanimous decision that he did not. The State’s argument
focused on evidence that Perez-Vasquez was not under the influence of sudden
passion, and did not discuss the unanimity requirement. Similarly, defense counsel
argued that the evidence proved there was sudden passion, but he did not address
the issue of unanimity.
Taking into account all evidence presented at trial, there was not substantial
evidence of sudden passion arising from an adequate cause. Perez-Vasquez did not
deny that he killed Calvillo. However, during the guilt-innocence phase he argued
the killing was in self-defense and in defense of Escobedo. The jury was properly
charged on self-defense and defense of a third party, and it rejected those theories
during the guilt-innocence phase by finding Perez-Vasquez guilty of murder.
Defense counsel argued sudden passion during his closing argument in the
punishment phase. The Penal Code defines “sudden passion” as “passion directly
caused by and arising out of provocation by the individual killed or another acting
32
with the person killed which passion arises at the time of the offense and is not
solely the result of former provocation.” TEX. PENAL CODE § 19.02(a)(2).
‘“Adequate cause’ means cause that would commonly produce a degree of anger,
rage, resentment, or terror in a person of ordinary temper, sufficient to render the
mind incapable of cool reflection.” Id. § 19.02(a)(1). The officer that interviewed
Perez-Vasquez following Calvillo’s death testified that he did not have any injuries
other than a black eye and a busted lip. This evidence indicated that Perez-Vasquez
had not been injured significantly by Calvillo. Escobedo testified that the attack
was premediated, which contradicted Perez-Vasquez’s self-defense theory. See
Hernandez v. State, 127 S.W.3d 206, 211 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d) (ordinary anger or causes of a defendant’s own making are not legally
adequate causes).
Finally, the record reflects that after the jury announced its verdict, and in
response to a question from the court, the foreperson affirmed that the special issue
was decided unanimously.
Taking the entire record into consideration, we conclude that there is
evidence indicating that the verdict on the special issue of sudden passion was
unanimous. There also is no indication that Perez-Vasquez suffered any actual
harm as a result of the error in the jury charge. We overrule this issue.
33
IV. Sufficiency of evidence to support sudden-passion verdict
In his fifth and sixth issues, Perez-Vasquez asserts that the evidence is
legally and factually insufficient to support the jury’s negative finding on the issue
of sudden passion at the punishment phase of his trial. See TEX. PENAL CODE
§ 19.02(a), (d).
As noted previously, during the punishment phase of a murder trial a
defendant may seek to reduce a murder conviction from a first-degree felony to a
second-degree felony by proving by a preponderance of the evidence that “he
caused the death under the immediate influence of sudden passion arising from an
adequate cause.” See id. § 19.02(d); see also Hernandez, 127 S.W.3d at 211–12
(holding that defendant bears burden at punishment phase to prove issue of sudden
passion by a preponderance of evidence).
In reviewing a criminal defendant’s legal-sufficiency challenge to a jury’s
negative finding for an issue on which the defendant bears the burden of proof, we
apply the civil standard announced in Sterner v. Marathon Oil Co., 767 S.W.2d
686, 690 (Tex. 1989). See Smith, 355 S.W.3d at 147–48; see also Nolan v. State,
102 S.W.3d 231, 237–38 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). The
Sterner standard applies to a legal-sufficiency review of a jury’s negative answer
on sudden passion during the punishment phase because a defendant bears the
34
burden to prove sudden passion by a preponderance of the evidence. See Smith,
355 S.W.3d at 148.
We examine the record for evidence that supports the negative finding. Id.;
Nolan, 102 S.W.3d at 238. If no evidence supports the negative finding, then we
examine the entire record to determine whether it establishes the contrary
proposition as a matter of law. Smith, 355 S.W.3d at 148; Nolan, 102 S.W.3d at
238. In reviewing the record, we defer to the factfinder’s determination of the
credibility of the witnesses and the weight to give the evidence. Smith, 355 S.W.3d
at 148.
If the evidence is legally sufficient, then we turn to factual sufficiency. The
factual sufficiency standard announced in Meraz v. State is appropriate for review
of issues, such as affirmative defenses, on which the defendant has the burden of
proof by the preponderance of the evidence. See Meraz v. State, 785 S.W.2d 146,
154–55 (Tex. Crim. App. 1990); see also Smith, 355 S.W.3d at 148. For a factual-
sufficiency challenge, the standard of review is whether after considering all the
evidence relevant to the issue, the judgment is so against the great weight and
preponderance of the evidence so as to be manifestly unjust. Meraz, 785 S.W.2d at
154–55. In the factual-sufficiency review of the evidence, we review all of the
evidence neutrally, but we do not intrude on the factfinder’s role as the sole judge
35
of the weight and credibility given to any witness’s testimony. Smith, 355 S.W.3d
at 148.
“[E]xcept in rare instances, when the State’s evidence is sufficient to
overcome a claim of self-defense, it will also be sufficient to show the absence of
sudden passion.” Benavides v. State, 992 S.W.2d 511, 525 (Tex. App.—Houston
[1st Dist.] 1999, pet. ref’d).
A. Legal sufficiency
“A defendant may not rely on a cause of his own making, such as
precipitating a confrontation, to support his argument that he acted out of sudden
passion arising from adequate cause.” Smith, 355 S.W.3d at 149; see also Naasz v.
State, 974 S.W.2d 418, 420 (Tex. App.—Dallas 1998, pet. ref’d). Escobedo
testified that Calvillo punched Perez-Vasquez while they were at a club. After
Calvillo punched him, Perez-Vasquez and Escobedo left the club and went to her
house. According to Escobedo, after they returned to her house Perez-Vasquez
instructed her to invite Calvillo over. He then told her to seat Calvillo on the couch
in a specific position. Perez-Vasquez hid in a room whose entrance could not be
seen from the location on the couch. After Calvillo arrived, Perez-Vasquez snuck
out of the room and hit him in the head with several objects. A fight ensued
between the two men, and Perez-Vasquez killed Calvillo by hitting and stabbing
him with several different objects. The jury could have concluded based on
36
Escobedo’s testimony that Perez-Vasquez precipitated the confrontation that led to
Calvillo’s death. See Smith, 355 S.W.3d at 149.
Since some evidence showed that Perez-Vasquez precipitated the
confrontation that led to Calvillo’s death, the evidence is legally sufficient to
support the jury’s negative finding on the issue of sudden passion. See id.; see also
Perez v. State, 323 S.W.3d 298, 305 (Tex. App.—Amarillo 2010, no pet.). We
overrule Perez-Vasquez’s fifth issue.
B. Factual sufficiency
The jury is the sole judge of the weight and credibility given to any
witness’s testimony. Smith, 355 S.W.3d at 149; Cleveland v. State, 177 S.W.3d
374, 390–91 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). The argument for a
sudden-passion finding depended largely on the testimony of Perez-Vasquez and
his brother. The jury could have doubted their testimony because Escobedo’s
testimony contradicted their version of events. Perez-Vasquez testified that
Calvillo had a knife when he hit him from behind, but Escobedo said that he did
not. Another witness testified that Calvillo did not have a weapon when he went
into Escobedo’s house. Despite Perez-Vasquez’s attempts to diminish Escobedo’s
testimony because she admitted to giving false statements prior to trial and being
drunk on the night Calvillo was killed, the jurors were free to accept her version of
37
events over his. See Smith, 355 S.W.3d at 149; see also Cleveland, 177 S.W.3d at
390–91.
Perez-Vasquez never testified that he was angry, upset, or irate when he
attacked Calvillo. He only testified that he was afraid of him. A bare claim of fear
does not demonstrate sudden passion arising from adequate cause. Daniels v. State,
645 S.W.2d 459, 460 (Tex. Crim. App. 1983). “Fear” that rises to the level of
“terror” may constitute sudden passion when its cause is such that commonly
would produce a degree of terror sufficient to render the mind incapable of cool
reflection. Id. In his appellate brief, Perez-Vasquez suggests that he became
terrified after he hit Calvillo in the head with the bottle because he feared he was
going to be stabbed with a knife. But there was evidence that Perez-Vasquez
provoked Calvillo by hitting him in the head with the bottle. Further, the jury
rationally could have concluded Perez-Vasquez was not telling the truth or that his
“terror” was objectively unreasonable. See Cleveland, 177 S.W.3d at 391.
Escobedo testified that Perez-Vasquez was angry after the fight. Ordinary
anger is not sufficient to support an affirmative sudden-passion finding. Dukes v.
State, 486 S.W.3d 170, 180–81 (Tex. App.—Houston [1st Dist.] 2016, no pet.);
Hernandez, 127 S.W.3d at 213–14. A reasonable view of the record indicates that
Calvillo’s punching of Perez-Vasquez may have been a cause for anger, but it
would not drive a person of ordinary temper to violent passion. See Dukes, 486
38
S.W.3d at 181. Further, a rational jury could conclude from the evidence that there
was a reasonable opportunity for cool reflection during the significant passage of
time between when Perez-Vasquez was punched by Calvillo in the club and when
Perez-Vasquez attacked Calvillo. See McKinney v. State, 179 S.W.3d 565, 569
(Tex. Crim. App. 2005).
After viewing all of the evidence in a neutral light, we hold that the evidence
supporting the jury’s failure to find that appellant acted in sudden passion is not so
contrary to the great weight and preponderance of the evidence that the verdict is
clearly wrong and manifestly unjust. See Smith, 355 S.W.3d at 149–50; Cleveland,
177 S.W.3d at 390–91. We overrule Perez-Vasquez’s sixth issue.
V. Deadly-weapon finding
In his final issue, Perez-Vasquez contends that the trial court erred by
including an affirmative deadly-weapon finding in the judgment.
Under the law that applied at the time of trial, for a trial court to enter a
deadly-weapon finding in the judgment, the trier of fact was required to first make
an “affirmative finding” to that effect. Act of May 30, 1977, 65th Leg., R.S., ch.
347, § 1, sec. 3f, 1977 Tex. Gen. Laws 925, 926, repealed by Act of May 29, 2015,
84th Leg., R.S., ch. 770, § 3.01, 2015 Tex. Gen. Laws 2320, 2394, eff. Jan. 1, 2017
(current version at TEX. CODE CRIM. PROC. art. 42A.054(c)). The indictment did
not specifically allege that Perez-Vasquez used a deadly weapon, and the weapons
39
it alleged he used (a bottle, a router device, a knife, a screwdriver, “and/or . . . an
object unknown to the grand jury”) were not all deadly weapons per se. No deadly-
weapon special issue was submitted to the jury. But the indictment alleged that
Perez-Vasquez caused the death of Calvillo with an object, and the jury found that
he was “guilty of murder as alleged in the indictment.” As a result, the jury
necessarily found that Perez-Vasquez used something that in the manner of its use
was capable of causing—and did cause—death. See Crumpton v. State, 301
S.W.3d 663, 664 (Tex. Crim. App. 2009).
Relying upon Guthrie-Nail v. State, 506 S.W.3d 1 (Tex. Crim. App. 2015),
Perez-Vasquez argues that the factfinder had the authority to decline to make a
deadly-weapon finding, even when the use of a deadly weapon was a necessary
element of the charged offense. Because no special issue was presented to the jury,
he thus contends that the trial court could not enter a deadly-weapon finding,
despite the jury’s guilty verdict.
In Guthrie-Nail, the defendant pleaded guilty to conspiracy to commit
capital murder. 506 S.W.3d at 2. The indictment in that case alleged that the
defendant, “with the intent that capital murder . . . be committed,” agreed with
another person that “they or one of them would engage in conduct that would
constitute the offense” by entering the habitation of the victim, and the other
person entered the habitation and shot the victim with a firearm. Id. at 2–3. The
40
defendant pleaded guilty to the offense as alleged in the indictment. Id. at 3. The
trial court found her guilty of the offense as set forth in the indictment, but there
was no mention, orally or in writing, about a deadly-weapon finding. Id. The
judgment reflected “N/A” in the space provided for “Findings on Deadly
Weapon.” Id. Two months after the original judgment the trial judge signed a
judgment nunc pro tunc, changing the “Findings on Deadly Weapon” from “N/A”
to “Yes, a Firearm.” Id. The defendant appealed, challenging the trial court’s
affirmative deadly-weapon finding. Id. On appeal, the Court of Criminal Appeals
described the issue presented as “whether the trial judge in a bench trial has the
discretion to decline to make a deadly-weapon finding, even when the use of a
deadly weapon is a necessary element of the charged offense.” Id. at 4. The Court
answered the question “yes,” and it remanded the case to the trial court for hearing
to determine why it entered an “N/A” in the original judgment. Id. at 7.
Guthrie-Nail is distinguishable from this case. In Guthrie-Nail, the
defendant was convicted of conspiracy to commit capital murder, and the
indictment in that case did not allege that she actually used a deadly weapon. See
id. at 2–3. In contrast, in this case the indictment alleged that Perez-Vasquez
committed a homicide by hitting, stabbing, cutting, or striking Calvillo using an
object.
41
Based on the jury’s finding that Perez-Vasquez was guilty of murder as
alleged in the indictment, we conclude that the trial court had an adequate basis for
entering a deadly-weapon finding in the judgment. See Crumpton, 301 S.W.3d at
664. We overrule Perez-Vasquez’s seventh issue.
Conclusion
We affirm the trial court’s judgment.
Michael Massengale
Justice
Panel consists of Justices Higley, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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