Affirmed as Modified a nd Opinion Filed April 12, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-00198-CR RIGOBERTO VAZQUEZ HE RNANDEZ, 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 tria l court erred by failing to instruct the jury on self-defense and he was egregi ously harmed by the error. Viewed in the light most favorable to appellant, the evidence at tr ial, including eyewitne ss testimony, a surveillance video capturing the shootings, and appellant’s te stimony, does not raise self-defense. On our own motion, we modify the tria l court’s judgment to reflect (1) the trial court assessed punishment and (2) there is no possibility of pa role. We affirm the judgment as modified. In his sole issue, appellant claims the trial c ourt erred by failing to instruct the jury on the law of self-defense. We use a two-step pr ocess in reviewing jury charge error. Ngo v. State , 175–2– 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 revers al 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 w eak, 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 de fendant is not entitled to an instruction on the issue. Id . Whether a defense is supported by the evidence is a sufficiency question reviewable on app eal 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 anot her when he reasonab ly believes the force is immediately necessary to protect himself fr om the other person’s use or attempted use of unlawful force. T EX
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. § 9.31(a) (West 2011). A person is justified in using deadly force against another if he would be justified in usi ng force under section 9.31, and when and to the degree he reasonably be lieves the deadly force is immediately necessary to protect himself against the other person’s use or attempte d use of unlawful deadly force or to prevent another’s imminent commission of ce rtain offenses, including robbery. Id . § 9.32(a)(1), (2). The actor’s belief that deadly force is immediately n ecessary 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 us e of force against another is–3– 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 Carbaj al’s eyewitness testimony about the events, the surveillance videotape of th e entire incident from a nei ghboring 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 morni ng on August 18, 2013, Vilma and appellant were closing up when some people outside began knoc king and banging on the door. Vilma walked to the door and yelled that the bar was closed even though several ba r regulars, incl uding Carbajal and Marcella Arellano, were st ill inside. The people outside ––Francisco Martinez, Claudia Balderas, and Alfredo Arredondo––continued kicki ng the door and began yelling. Vilma opened the door and walked outside, and when Carb ajal heard yelling and women fighting, he and Marcella followed her out. According to Carbajal, Claudia and Vilma wa nted to fight each other but Martinez, Arredondo and Marcella kept sepa rating them. The two women were standing close to the door, arguing, when one of the men gave Vilma “a little push on her should er.” Carbajal said no one made any threats and the only pe ople fighting were Claudia an d Vilma. Appellant suddenly appeared with a gun and shot Arredondo who was st anding apart from the women. Carbajal said no one else had a gun or weapon of any kind and that, at that poi nt, 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, includ ing appellant shooting three peopl e. The video shows a group of people at the front door of the bar. The door ope ned, and several people exited the bar. Claudia–4– and Vilma argued and were gest uring at each other; Marcel la 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 lo t. 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. Appe llant turned and shot Martinez who fell back onto the curb. He then walked to where the three women were st anding. He separated Marcella and Vilma from Claudia and, using his outstretched le ft arm, held Claudia in place. As Marcella and Vilma walked back toward the bar, he shot Cl audia 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 drov e 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 star ted to leave but turned and shot Martinez one last time, then ran away. Shortly afterwar ds, 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 Claudi a in the parking lot in front of th e bar. After being contacted by police, the owner of the store next to the bar pl ayed the video for the police and identified Vilma as the owner of the bar and appe llant as the shooter. Police lo cated a nearby address for Vilma–5– 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 deni ed knowing appellant, po lice 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 ju ry that when his wife opened th e 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 we re “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 mo nths 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 to ld 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 ha d 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 fear ed was “the intention for me – him to come over towards me to grab the gun and hurt everybody present.” He then shot Martinez because–6– “[h]e was being aggressive as well” and “threaten ing” him. He shot Claudia because she was “hysterical saying she wanted to attack” Marcellaand Vilma and he “could not control her with words.” The charge instructed the jury to find appe llant guilty if it found he caused Martinez’s death by shooting him with a firearm, and duri ng 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 justif ied in using deadly force against Martinez and Claudia to protect himself in self-defense ag ainst the unlawful deadly force he reasonably believed to be thre atening 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 wa s necessary to defend himself to prevent a robbery. The video shows it took appellant approxi mately five seconds to come out of the bar and shoot Arredondo and Martinez and, seconds later, Claudia. Fu rthermore, while appellant’s testimony described verbal threats, verbal provo cation does not justify self-defense. Because self-defense was not raised in this case, the tria l 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 judgmen t. First, the judgme nt reflects the jury as sessed punishment, not the trial court. Second, the judgment reflects p unishment as life in prison, not life in prison without parole. Section 12.31(a)(2) provides that when the Stat e does not seek the death penalty–7– in a capital felony trial, a sentence of life imprison ment without parole is mandatory if the person is eighteen years of age or older. See T EX
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. § 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, punish ment 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). Accordingl y, we modify the trial court’s judgment to reflect (1) the trial court assesse d punishment and (2) punishment is life in prison without parole. We affirm the trial court’s judgment as modified.

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. P. 47.2(b) 150198F.U05 /Molly Francis/ MOLLY FRANCIS JUSTICE–8– 

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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 da te, the judgment of the trial court is MODIFIED as follows: To reflect (1) the trial court assess ed punishment and (2) punishment as life imprisonment without parole.
As MODIFIED , the judgment is AFFIRMED

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Judgment entered April 12, 2016.