Affirmed as Modified and Opinion Filed April 12, 2016 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-15-00198-CR 

RIGOBERTO VAZQUEZ HERNANDEZ, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 203rd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F13-59234-P 

MEMORANDUM OPINION 

Before Justices Francis, Lang-Miers, and Myers 

Opinion by Justice Francis 

Rigoberto Hernandez appeals his conviction for the capital murders of Francisco 

Martinez and Claudia Balderas. Because the State did not seek the death penalty, punishment is 

life in prison without parole. In a single issue, appellant claims the trial court erred by failing to 

instruct the jury on self-defense and he was egregiously harmed by the error. Viewed in the light 

most favorable to appellant, the evidence at trial, including eyewitness testimony, a surveillance 

video capturing the shootings, and appellant’s testimony, does not raise self-defense. On our 

own motion, we modify the trial court’s judgment to reflect (1) the trial court assessed 

punishment and (2) there is no possibility of parole. We affirm the judgment as modified. 

In his sole issue, appellant claims the trial court erred by failing to instruct the jury on the 

law of self-defense. We use a two-step process in reviewing jury charge error. Ngo v. State, 175 
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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. When the defendant fails to object, as is the case 

here, we will not reverse for jury charge error unless the record shows “egregious harm” to the 

defendant. Id. at 743–44. 

A defendant is entitled to an instruction on self-defense if the issue is raised by the 

evidence, whether that evidence is strong or weak, unimpeached or contradicted, and without 

regard to what the trial court may think about the credibility of the evidence. Ferrel v. State, 55 

S.W.3d 586, 591 (Tex. Crim. App. 2001). But if the evidence, viewed in the light most 

favorable to the defendant, does not establish self-defense, the defendant is not entitled to an 

instruction on the issue. Id. Whether a defense is supported by the evidence is a sufficiency 

question reviewable on appeal as a question of law. Shaw v. State, 243 S.W.3d 647, 658 (Tex. 

Crim. App. 2007). 

A person may justifiably use force against another when he reasonably believes the force 

is immediately necessary to protect himself from the other person’s use or attempted use of 

unlawful force. TEX. PENAL CODE ANN. § 9.31(a) (West 2011). A person is justified in using 

deadly force against another if he would be justified in using force under section 9.31, and when 

and to the degree he reasonably believes the deadly force is immediately necessary to protect 

himself against the other person’s use or attempted use of unlawful deadly force or to prevent 

another’s imminent commission of certain offenses, including robbery. Id. § 9.32(a)(1), (2). The 

actor’s belief that deadly force is immediately necessary is presumed to be reasonable if the actor 

knew or had reason to believe that the person was committing or attempting to commit robbery. 

Id. § 9.32(b). A reasonable belief is one held by an ordinary and prudent person in the same 

circumstances as the actor. Id. § 1.07(42) (West Supp. 2015). The use of force against another is 
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not justified in response to verbal provocation alone. Id. § 9.31(b)(1); Walters v. State, 247 

S.W.3d 204, 213 (Tex. Crim. App. 2007). 

The evidence at trial included David Carbajal’s eyewitness testimony about the events, 

the surveillance videotape of the entire incident from a neighboring store, and appellant’s 

testimony. 

Vilma Vicente owned the San Francisco Night Club in a strip center on Maple Avenue 

and appellant, her husband, helped her manage it. Vilma was eight and one-half months 

pregnant. Around four-thirty in the morning on August 18, 2013, Vilma and appellant were 

closing up when some people outside began knocking and banging on the door. Vilma walked to 

the door and yelled that the bar was closed even though several bar regulars, including Carbajal 

and Marcella Arellano, were still inside. The people outside––Francisco Martinez, Claudia 

Balderas, and Alfredo Arredondo––continued kicking the door and began yelling. Vilma opened 

the door and walked outside, and when Carbajal heard yelling and women fighting, he and 

Marcella followed her out. 

According to Carbajal, Claudia and Vilma wanted to fight each other but Martinez, 

Arredondo and Marcella kept separating them. The two women were standing close to the door, 

arguing, when one of the men gave Vilma “a little push on her shoulder.” Carbajal said no one 

made any threats and the only people fighting were Claudia and Vilma. Appellant suddenly 

appeared with a gun and shot Arredondo who was standing apart from the women. Carbajal said 

no one else had a gun or weapon of any kind and that, at that point, he feared he too would be 

shot, so he left. 

The video camera was located at the entrance of the business next door to the club and 

recorded the entire event, including appellant shooting three people. The video shows a group of 

people at the front door of the bar. The door opened, and several people exited the bar. Claudia 
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and Vilma argued and were gesturing at each other; Marcella stood between them. When 

Claudia and Vilma grabbed each other, Marcella separated them. The men watched but were 

generally not engaged in the physical argument. Marcella pushed Claudia toward the wall, and 

Vilma stepped off the curb into the parking lot. As she did, Arredondo reached his left arm 

around the left side of her body. Vilma pushed him away, causing him to stumble backwards 

further into the parking lot. 

At this point, appellant appeared with a gun in his hand. Stepping off the curb, he raised 

his right arm and shot Arredondo in the face. Appellant turned and shot Martinez who fell back 

onto the curb. He then walked to where the three women were standing. He separated Marcella 

and Vilma from Claudia and, using his outstretched left arm, held Claudia in place. As Marcella 

and Vilma walked back toward the bar, he shot Claudia twice in the chest. He turned and walked 

to the bar. 

Martinez struggled to sit up and reached in his pocket for his cell phone. Appellant 

returned, stood behind Martinez, and pointed his gun at Martinez’s head. A man and a woman 

walked behind appellant, got in a car, and drove off. Appellant looked toward the bar door; 

Marcella, Vilma, and a third person left and got in a pickup truck. As the pickup pulled out of 

the parking lot, appellant shot Martinez in the back of his head. He started to leave but turned 

and shot Martinez one last time, then ran away. Shortly afterwards, a white van drove slowly by 

the club. According to the counter on the video recorder, the entire incident took about two 

minutes. 

Police received a 911 call from a passerby. When they arrived, they found the bodies of 

Arredondo, Martinez, and Claudia in the parking lot in front of the bar. After being contacted by 

police, the owner of the store next to the bar played the video for the police and identified Vilma 

as the owner of the bar and appellant as the shooter. Police located a nearby address for Vilma 
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and drove to the address where they saw Vilma standing next to a white van in front of the 

house. She got in the van and drove off but was pulled over by police not far away. When 

police searched the area around the van, they found a bag containing a photo album with 

photographs of Vilma, appellant, and some children as well as what appeared to be a change of 

clothes for a man. Although she initially denied knowing appellant, police found a wallet with 

his identification card inside the van. Vilma was taken in for questioning and within a day, 

appellant turned himself in. 

Appellant told the jury that when his wife opened the door, the people outside dragged 

her out by the hair. He got outside “as soon as possible” and when he did, he saw a man grab 

Vilma and demand she give him the money. He shot “out of fear for [his] wife’s life” as well as 

the life of his unborn baby. He said the people were “aggressive” and continued “to attack us 

and threaten us.” Appellant thought it was necessary to pull out his gun and shoot those people 

to protect himself, his wife, and their unborn child. 

Appellant also told the jury that, about ten months before the murders in the parking lot, 

he was robbed in the area behind the bar. Two men, one of whom had a pistol, attacked him and 

demanded his wallet. They kicked him until he told them the wallet was on the ground, and then 

took his wallet and fled. Appellant claimed he grabbed his gun because he thought he would be 

robbed like he was on the previous occasion. 

On cross-examination, appellant said he told the man who grabbed Vilma that he had the 

money. He shot that man because, “I feared that when I told him that I was the one that had the 

money, that he would come towards me. I had the gun and perhaps if I had not had the gun, I 

would have given him the money.” He conceded that Arredondo did not have a weapon but said 

he “looked towards me” with what appellant feared was “the intention for me – him to come 

over towards me to grab the gun and hurt everybody present.” He then shot Martinez because 
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“[h]e was being aggressive as well” and “threatening” him. He shot Claudia because she was 

“hysterical saying she wanted to attack” Marcella and Vilma and he “could not control her with 

words.” 

The charge instructed the jury to find appellant guilty if it found he caused Martinez’s 

death by shooting him with a firearm, and during the same transaction, or during a different 

criminal transaction under the same scheme or course of conduct, appellant caused Claudia’s 

death by shooting her with a firearm. The charge also instructed the jury on defense of a third 

party, that is, to find appellant not guilty if, under the circumstances as appellant reasonably 

believed them to be, he would have been justified in using deadly force against Martinez and 

Claudia to protect himself in self-defense against the unlawful deadly force he reasonably 

believed to be threatening Vilma. 

Although appellant argues his testimony was some evidence he was entitled to an 

instruction on self-defense, we disagree. No evidence shows that Arredondo, Martinez, or 

Claudia used or attempted to use deadly force against appellant or that appellant could have 

reasonably believed immediate deadly force was necessary to defend himself to prevent a 

robbery. The video shows it took appellant approximately five seconds to come out of the bar 

and shoot Arredondo and Martinez and, seconds later, Claudia. Furthermore, while appellant’s 

testimony described verbal threats, verbal provocation does not justify self-defense. Because 

self-defense was not raised in this case, the trial court did not err by failing to instruct the jury on 

self-defense. We overrule appellant’s sole issue. 

Finally, although neither party has raised the issue, our review of the record reveals two 

errors in the trial court’s judgment. First, the judgment reflects the jury assessed punishment, not 

the trial court. Second, the judgment reflects punishment as life in prison, not life in prison 

without parole. Section 12.31(a)(2) provides that when the State does not seek the death penalty 
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in a capital felony trial, a sentence of life imprisonment without parole is mandatory if the person 

is eighteen years of age or older. See TEX. PENAL CODE ANN. § 12.31(a)(2) (West Supp. 2015). 

Because appellant was older than eighteen years of age when he committed the offense and the 

State did not seek the death penalty, punishment is life in prison without parole. 

We have the authority to correct a judgment below to make the record “speak the truth” 

when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 

529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we modify the trial court’s judgment to 

reflect (1) the trial court assessed punishment and (2) punishment is life in prison without parole. 

We affirm the trial court’s judgment as modified. 

 

 

 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

150198F.U05 

 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

RIGOBERTO VAZQUEZ HERNANDEZ, 

Appellant 

No. 05-15-00198-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 203rd Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. F13-59234-P. 

Opinion delivered by Justice Francis, 

Justices Lang-Miers and Myers 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED 

as follows: 

 To reflect (1) the trial court assessed punishment and (2) punishment as life 

imprisonment without parole. 

As MODIFIED, the judgment is AFFIRMED. 

Judgment entered April 12, 2016.