### IN THE TENTH COURT OF APPEALS
No. 10
- 16
- 00030
- CR
SOSIMO GONZALEZ , Appellant v. THE STATE OF TEXAS , Appellee

From the 361st District Court Brazos County, Texas Trial Court No. 13
- 05235
- CRF
- 361

MEMORANDUM OPINION
A jury convicted Appellant Sosimo Gonzalez of the murder of Andres Tula

Penaloza (more commonly known as “Tula”) and assessed his punishment at forty years’ incarceration and a $10,000 fine. Gonzalez asserts in two issues that the trial court erred in the instructions given to the jury . We will affirm. Standard of Review
A claim of jury

- charge error is reviewed using the procedure set out in Almanza v.
State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)

. See Barrios v. State , 283Gonzalez v. State Page 2

S.W.3d 348, 350 (Tex. Crim. App. 2009). The first step is to determine whether there is error in the charge. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Only if we find error, do we then analyze that error for harm. Id . If there is no er ror, our analysis
ends. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If an error was properly preserved by objection, reversal will be necessary if the error is not harmless. Almanza , 686 S.W.2d at 171; see also Brock v. State , 495 S.W.3 d 1, 13 (Tex. App.

— Waco 2016, pet. ref’d). The appellant must have suffered actual harm and not just merely theoretical
harm. Sanchez v. State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State , 721 S.W.2d 348, 352 (Tex. Crim. App. 1986). When considering whether a defendant suffered harm, the reviewing court must consider: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) the argument of counsel; and (4) any other r elevant information revealed by the record of the
trial as a whole. Al manza , 686 S.W.2d at 171. Self

- Defense
Gonzalez first asserts that the trial court erred by includ ing a self

- defense instruction in the jury charge despite his obj ection. Gonzalez elected to rely upon the
defense of necessity, arguing that self

- defense was not raised by the evidence. The trial

court a lso included an instruction on necessity. The trial court has no duty to instruct the jury on an unrequested defensive issue , even i f the issue is raised by the evidence

. See Delgado v. State , 235 S.W.3d 244, 246 (Tex.Gonzalez v. State Page 3

Crim. App. 2007) ; see also Posey v. State , 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)

. However, the trial court may , sua sponte , instruct the jury on a n unrequested defe nsive
issue as long as the instruction is a correct statement of the law and is supported by the
evidence. See Mendez v. State , 545 S.W.3d 548, 552

- 53 (Tex. Crim. App. 2018) ; see also
Barrera v. State , 982 S.W.2d 415, 416 (Tex. Crim. App. 1998). On appeal, evidence in support of a defensive issue is viewed in the light most favorable to the defense, and a defendant’s testimony is by itself sufficient to raise a defensive issue. See Elliott v. State , 293 S.W.3d 781, 783 (Tex. App.

— Waco 2009, no pet.). In determining whether the evidence raises a defense, the credibility, source, and strength of the evidence is
immaterial. Stefanoff v. State , 78 S.W.3d 496, 499 (Tex. App.

— Austin 2002, pet. ref’ d); see also Muniz v. State , 851 S.W.2d 238, 254 (Te x. Crim. App. 1993) (“The evidence which raises the issue may be either strong, weak, contradicted, unimpeached, or unbelievable.”). Gonzalez does not argue that the instruction on self

- defense given by the trial

court was an incorrect statement of the la w . Rather, he contends that the trial court should not have given the instruction because it was not supported by the evidence as he was illegally carrying a firearm at the time he shot Tu l a
. 1 Assuming, without deciding,

1 Section 9.31(b)(5) of the Penal Code provides: “The use of force against another is not justified . . . if the actor sought an explanation from or discussion with the other person concerning the actor’s difference with the other person while the actor was . . . carrying a weapon i n violation of Section 46.02.” T EX

. P ENAL C ODE A NN
. § 9.31(b)(5) (West 2011 ). Section 46.02 prohibits carrying a handgun if the actor is not on his own premises or inside of or directly en route to a motor vehicle .

. . that is owned by the person or under the person’s control. . . .” T EX

. P ENAL C ODE A NN
. § 46.02 (West Supp. 2017 ) . (Section 46.02 was amended subsequent to the murder, but the amendments do not affect this appeal.)Gonzalez v. State Page 4

that the trial court erred in giving the self

- defense instruction, we conclude that Gonzalez
did not suffer harm. In his brief, Gonzalez notes:
The harm in this case was that the submission of self

- defense placed defense counsel in the untenable position of being forced to argue to t he jury to disregard a defensive charge . This served as a launching pad for the prosecutor to belittle the self

- defense charge and, thereby, portray the necessity defense as just another clever defense lawyer artifice, not worthy of consideration. The ne cessity defense was highly contested during trial. There were only two eyewitnesses to the actual shooting: Appellant and Annie Arredondo. The submission of self

- defense completely undermined any hope for success of the necessity defense. (emphasis in original). As previously noted, we must find that the appellant suffered
actual rather than theoretical harm. Sanchez , 376 S.W.3d at 775. Gonzalez argues that the necessi ty defense was highly contested. However, a
review of the record reflects that i t was self

- defense that was highly contested . The issue
of self

- defense permeated the trial from voir dire through closing arguments. The attorneys for both Gonzalez and the State spent considerable time during voir dire questioning the venire panel abou t self

- defense. The State’s attorney, not Gonzalez, additionally questioned the panel about the defense of necessity , although to a much lesser extent. During opening statements, defense counsel specifically stated: “[H]ow the deceased Andres Tula, died is not at issue. What’s at issue is the notion of self

defense.” Gonzalez’s counsel further state d : “Please look at all the facts, at all the circumstances surrounding the facts and understand that my client was defending
himself because he was afraid of imminent danger and death.” In its opening statement, the State’s attorney outlined the facts of the case, pointing out that th os e facts d id notGonzalez v. State Page 5

constitute self

- defense. The defense of necessity was raised in Gonzalez’s closing argument after his own testimony negated self

- defense. Whether self

- defense was included in the jury charge or not, Gonzalez would still have needed to address the issue
or leave the jury to speculate why self

- defense was suddenly no longer part of the case.
Gonzalez also argues that the jury may have disregarded the necessity defense
because it was belittled by the prosecutor during closing argument as an “artifice” not worthy of their consideration. However , the jury could well have disregarded the
defense due to th e lack of evidence that Gonzalez acted with “ necessity .” The defense of necessity is closely aligned with self

- defense. It is a justification
defense that excuses a defendant’s otherwise unlawful conduct. Like self

- defense, necessity requires immediacy

— “force is needed at that moment

— ‘when a split second
decis i on is required.’” Henley v. State , 493 S.W.3d 77, 89 (Tex. Crim. App. 2016) ( quoting
Smith v. State , 874 S.W.2d 269, 273 (Tex. App.

— Houston [14th Dist. ] 1994, pet. ref ’ d) , abrogated on other groun ds by Clewis v. State , 922 S.W.2d 126 (Tex. Crim. App. 1996)). Gonzalez does not dispute that he shot and killed Tula. At trial, Gonzal ez gave the following testimony as a justification for his actions: On August 31, 2013, Gonzalez and Monica Uvalle , his girlfriend, met some friends, Victor and Ruby Balderas at Club Karma. While Gonzalez and Uvalle were dancing, Gonzlez saw a woman he had known previously, Aracely Martinez, dancing with her boyfriend. The boyfriend attacked Gonzalez, striking him i n the face. Other people joined in the fracas, including Tula . Gonzalez had never seen Tula before. Tula yelled at Gonzalez, “I’m going to kill you. I’m going to kill you.” Club security escorted everyoneGonzalez v. State Page 6

out of the club, and Gonzalez saw Martinez’s b oyfriend hit Uvalle in the face as they were exiting the club. Gonzalez started to approach Tula and his friends in the parking lot , but Uvalle pulled him to their car. Tula again threatened to kill Gonzalez. Uvalle drove them away and Gonzalez directed her to take them to his house. A nother vehicle began following them. When the vehicle pulled close to them, Gonzalez saw Tula point a gun out of one of the windows. Uvalle turned down another street, but Tula’s vehicle did not
follow t hem. Uvalle, who had previously dated Tula, told Gonzalez that Tula was dangerous, that he was known to carry a weapon, and that he had killed someone in Mexico. Gonzalez felt defenseless during the drive to his house because he was not armed , and he bel ieved that Tula was going to kill him. When Gonzalez got to his residence, he went inside and retrieved three guns. Gonzales testified that the guns were stored without their magazines and that he inserted the magazines before returning to
the car. Two of the guns were inside a box, and Gonzalez placed the remaining gun in the waistband of his pants where it was covered by his shirt. Gonzalez did not chamber a round in the gun before securing it at his waistband. Gonzalez did not tell Uvalle about
the guns. Uvalle then proceeded to drive them to her apartment. On the way, Gonzalez
saw Tula in an apartment complex parking lot talking with some people. Gonza lez did
not see the friends who had been with Tula at the bar. Gonzalez told Uvalle to stop
bec ause he wanted to ask Tula why he had been following them and trying to hurt them. Although Gonzalez was frightened by Tula, he believed that his life was at risk and wanted to tell Tula to leave him alone. Gonzalez told Uvalle, “If that man is threateni ngGonzalez v. State Page 7

my life, I might as well take his life.” 2 Uvalle parked behind an d perpendicular to the car
where Tula was standing , with her driver’s side closest to the other car. Annie Marie Arredondo, who had been talking with Tula, left the other car and quickly approached Uvalle’s car. Tula remained at Arredondo’s car, positioned behind the driver’s side 3 door which was open. Gonzalez got out of the passenger side of Uvalle’s car and walked
behind it toward Tula. Gonzalez then asked Tula if he was Andres Tula , and Tula answered affirmatively . Gonzalez noted that Tula “tried to turn really fast around, turn around to the door and was trying to put his hand by his waist.” Gonzalez stated that
Tula came from behind the door to confront him. Gonzalez believed t hat Tula was going to shoot him. Gonzalez pulled the gun from his waistband, chambered a round, and then shot Tula, firing the gun until it ran out of ammunition. Gonzalez then quickly returned
to Uvalle’s car , and he told her to drive to the Balderas’s residence because it was closer than Uvalle’s apartment. Gonzal ez and Uvalle told the Balderase s everything that had happened. After Gonzalez told Mr. Balderas that he wanted to get rid of the guns, Mr.
Balderas told him to take them into the woods close to the Balderas’s residence. Gonzalez took the guns to the wooded area and buried them. Gonzalez left Uvalle with the
Balderas e s and returned to his house where he was arrested.
As is clear from Gonzalez’s testimony, the immediacy of the situation ha d passed by the time Gonzalez retrieved his gun and shot Tula

. The record reflects that over an

2 Gonzalez equivocated in his testimony about whether he said this to Uval le before or after he shot Tula.

3 Gonzales testified on direct that Tula was at the passenger

- side door, but testified on cross that Tula was at the driver’s side door. Defendant’s Exhibit 2, a drawing of the scene, sh ows Tula positioned behind the driver’s side door. Priscilla Torres testified that Tula was in front of the driver’s side door.Gonzalez v. State Page 8

hour had elapsed between the time of the altercation with Tula at the club and the time
that Gonzalez shot Tula

. The length of time that passed before the mur der and Gonzalez’s deliberate actions weigh against the defense of necessity. We conclude after
a review of the record that Gonzalez was not harmed by the inclusion of the self

- defense instruction in the jury charge. Gonzalez’s claim of harm is theoretical rather than actual.
Gonzalez’s first issue is overruled.
Sudden Passion Gonzalez next asserts that the trial court erred in failing to give a jury instruction on sudden p assion at the punishment phase. “When an a ppellant protests that the trial court erred not to grant his request to charge the jury regarding sudden passion, a reviewing court must first determine whether the complained

- of error exists.” Wooten v.
State , 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). If the reviewing court finds error, “it then analyzes whether the error harmed the appellant.” Id . In evaluating harm, the reviewing court focuses on the evidence and record “to determine the likelihood that a jury would have believed that the appellan t acted out of sudden passion had it been given
the instruction.” Id . The defendant has the burden of production and persuasion with regard to the issue of sudden passion. Id . at 605. The Texas Penal Code allows a defendant at the punishment phase of a murder
trial to raise the issue of whether he caused a death “under the immediate influence of sudden passion arising from an adequate cause.” T EX
. P ENAL C ODE A NN
. § 19.02(d) (West
2011 ). “Sudden passion” is “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises atGonzalez v. State Page 9

the time of the offense and is not solely the result of former provocation.” Id . at § 19.02(a)(2). “Adequate cause” is a “cause that would commonly pr oduce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Id . at § 19.02(a)(1)

. If a defendant presents evidence of sudden passion, he is entitled to an instruction on this mitigating circumstance even if the evidence raising such an issue is “weak, impeached, contradicted, or unbelievable.”
Trevino v. State , 100 S.W.3d 232, 238 (Tex . Crim. App. 2003); see also Perez v. State , 940 S.W.2d 820, 822 (Tex. App.

— Waco 1997, no pet.). “In determining whether a defense is raised, the court must rely on its own judgment, formed in the light of its own common sense and experience, as to the li mits of rational inference from the facts proven.” Arabie
v. State , 421 S.W.3d 111, 114 (Tex. App.

— Waco 2013, pet. ref’d). The question is whether there was any evidence from which a rational jury could infer su dden passion. See Moore
v. State , 969 S.W .2d 4, 11 (Tex. Crim. App. 1998). To justify a jury instruction on sudden passion, the record must at least minimally support an inference: 1) that the defendant in fact acted under the immediate influence of a passion such as terror, anger, rage, or rese ntment; 2) that his sudden passion was in fact induced by some provocation by the deceased or another acting with him, which provocation would commonly produce such a passion in a person of ordinary temper; 3) that he committed the murder before regaining his capacity for cool reflection; and 4) that a causal connection existed “between the provocation, passion, and homicide.”
Wooten , 400 S.W.3d at 605 ( quoting McKinney v. State , 179 S.W.3d 565, 569 (Tex. Crim. App. 2005)) ; see also Beltran v. State , 472 S.W.3d 283 , 290 (Tex. Crim. App. 2015)

.Gonzalez v. State Page 10

Even after taking Gonzalez’s testimony in the light most fa vorable to the instruction, and taking his testimony as true, the evidence does not support a sudden passion instruction. “Immediacy” is a requirement fo r sudden passion, just as it is with
self

- defense and necessity. When Gonzalez shot Tula, he was not acting under the “immediate” influence of a passion nor did he commit the murder before regaining his capacity for cool reflection . The last contact with Tula, according to Gonzalez’s testimony, occurred when Tula followed Gonzalez’s car and pointed a gun at him. There is no indication how long the “car chase” lasted, but approximately one hour passed from
the time Gonzale z was ejected from the club to th e time Gonzalez shot Tu l a. The actions Gonzalez took during that hour

— retrieving the gun, loading and hiding the gun, and locating Tu l a — were not those of someone acting under a sudden passion, but of someone acting after the opportunity for cool reflectio n. Even after Gonzalez arrived at Tu l a’s apartment complex, he acted with deliberation rather than sudden passion. While
Gonzalez testified that he shot Tu l a because he was afraid , his actions do not reflect that
fear

. Gonzalez deliberately sought Tu l a out after seeing him in the apartment complex

. A reasonable person who was truly afraid would not have initiated the confrontation. Additionally, a mere claim of fear does not establish sudden passion arising from an adequate cause

. See Wooten , 400 S.W.3d at 606

- 07; see also Griffin v. State , 461 S.W.3d 188,
19 4 (Tex. App.

— Houston [1st Dist.] 2014, no pet. ). The trial court did not err in denying Gonzalez’s request for a sudden passion instruction

. Even if the trial court erred, we conclude that Go nzalez has failed to establish that he was harmed by the lack of a sudden passion instruction. The jury had already rejectedGonzalez v. State Page 11

his necessity defense. As the Wooten court noted: “It is highly unlikely that a jury that had already rejected the appellant’s c laim that he reasonably believed that deadly force was immediately necessary to defend himself would ne vertheless fin d in his favor on the issue of sudden passion.” Wooten , 400 S.W.3d at 609. Having failed to show error or harm, Gonzalez’s second issue i s overruled. Having overruled both issues presented by Gonzalez, we affirm the trial court’s judgment.

R EX D. DAVIS Justice
B efore Chief Justice Gray, * Justice Davis, and Justice Scoggins *(Chief Justice Gray respectfully concurs in the Court’s judgment to the extent it affirms the trial court’s judgment. A separate opinion will not issue.) Affirmed Opinion delivered and filed August 15, 2018 Do not publish [CR PM ]