Affirmed and Memorandum Opinion filed May 18 , 2023

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00611

- CR

JORDAN JAML ALVARADO , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Ca us e No. 15 9 9201

MEMORANDUM OPINION
A jury convicted appellant Jordan Jaml Al var a do of the first

- degree felony
of murder in 2021

. Tex. Penal Code Ann. § 19.0 2 ( b )

. Appellant pleaded true to two previous convictions for burglary of a habitation and felon in p ossession of a

weapon. T he trial court assess ed punishment at impr ison men t for 45 y ears

. Tex.
Penal Co de Ann. § 12. 3 2 (a)

. In h is sole is sue on appea l, a ppellan t challen ges his

conv iction , arguing th e evidence is legally i nsufficient to support his conv ic ti on because no rational juror could have re jected his claim of self

- defense

. We aff i rm.2 I. B ACKGRO UN D Shelby Fonseca was involved in an altercation at the apartment complex
where her m other live d in July 2018. The police were called and b ecause Shelby

was th en a minor and her mother was unavailable, S helby ’ s father, Ke it h Johnson,
drove out with his girlfriend to the apartment complex located in the Spring
B r anch area of Harris County t o releas e her from police custody

. Appellant, who is S helby ’ s maternal un cl e , was also present. Keith was a long

- time family fr iend who had close re lationshi ps with members of appellant ’s
f

amily. 1 After the polic e left, appellant began arguing with one of Shelby ’ s friends

a nd the two began physically fighting. Sh elby called for h er father ’ s help and
Keith intervened in the altercation and then be gan fi ghting w ith appellant.
The fight between appellant and Keith lasted for several minutes and was witnessed by several member s of Shelby ’ s family , including appellant ’ s brother , Bob by Alvarado , and sister , Shantell Johnson , as well as Shelby a nd a neighbor sitting on her b alcony

. While accounts describing the fi ght vary, i t is undisputed
that Keith had the up per hand in the figh t

. Some of appellant ’ s family members
describe the t w o m en a s both landing strikes on each other. Other accounts

sugge st that appellant was hit in the h ea d several times and was pushed up against
a wall and ch oked with Keith ’ s arm.
It is unc lear why the f ight e nded , although by most accounts it ended
sudden l y w i th appellant running away

. Keith returned with Shelby ’ s famil y to her
mother ’ s apa rtment. Ap pe lla nt ran off to a nea r by apartment where he was stay ing
with his girlfriend. Appellant ’ s brother and Shelby both testified they thought the fight was over and ev e r y o ne was returning to her mother ’ s apartment to c alm

1 Becaus e m any of th e witnesses are related to appellant and several have the s am e l ast
na m e , we refer to the witnesses by their firs t name s.3 down. Keith ha d been wearing san dal s when he arrived at the apartment complex and began looking for tennis shoes to wear. While Shelby ’ s family ga thered in the apartment, Keith went down to his car t o l ook for shoes. His girlfriend , Velesia Washington, followed

. V elesia passed appella nt while looking for Keith and described appellant as “ angr y ” though she did not see a gun on him at that point.
S hor tly thereafter, Velesia heard a gun shot.
Appellant f ou n d Keith outside in the parking area of the apartment complex

. A neighbor who o bse r ved t he altercation testified that appellant pulled out a gun
and shot Keith from several f eet away. A visitor to the apartment complex also
saw the sho oting and testifi ed t h at Keith had his hands up in response to the gun
and was atte mpting to de

- escalate the situation. Velesia did not see the sho oting
bu t found Keith on the ground and ran to alert Shelby ’ s family. Shel by and appellant ’ s b rother, Bob by, testified that th ey e n count ered appellant on their way to find Keith. Shelby and Bo bby both test ified t h at appellant pointed his gu n at them as he ran towards the exit of the apartment complex. Appellant fled the

scene an d was arrested later.

II. A N ALYSIS

A. Sufficienc y o f the ev id en c e Appellant does not challenge the sufficiency of the evidence supporti ng the jury ’ s findi ng that he (1) intentionally or knowingly caused Keith ’ s death or (2) intended to caus e serious bo dily injury and intentionally or know ingly
committed an act clear ly dangerous to human life that caused Keith ’ s death

. Tex.
Penal Code Ann. § 19.02(b)(1), (2). Rather, he asserts there was no evidence supporting the jury ’ s reject ion of his claim of self

- de fense.4 1. Applicable law

The Penal Code provide s th at deadly for ce us e d in se lf

- defense or in defense
of another is a defense to prose cution for murder if that use of force is “justified.”
See Tex. Penal Code Ann. §§ 9.02 (“I t is a defense to prosecut ion that the conduct in question is justified under this chapter .”) , 9.3 1

– . 33 ( set ting forth substantive requirements for establishing clai m of self

- defense or defense of third person).

Penal Code s ection 9.31 provides that, sub ject to certain exceptions, a person is justified in using force against another “wh en and to the de gr e e the a ctor reasonably believes the force i s immediately necessa ry to protect the actor against
the other ’ s use or attempted use of unlawful force.” Tex. Pena l Code Ann. § 9.31(a). The use of force is not justified in response to ver bal provocation a lon e, or if t he actor provoked the other ’ s use or attempted use of unl awful force. Tex.
Pena l Code Ann. § 9.31(b). A “reasonable belief” in this context is defined as “one
that woul d be held by an ordinar y an d prudent man in the same circumstances as
the a cto r

. ” Tex. Penal Code Ann. § 1.07(a)(42).
A person is justified i n using deadly force against another (1) if he would be justified in using force against the other under secti on 9. 31, and (2) “when and t o the degree the actor reasonably believes the deadl y f o r c e is immedi ately necessa ry: (A) to protect the actor against the other ’ s use or a ttempted use of unlawful deadly force, or (B) to prevent the other ’ s imminent commission of ag gravated kidnapping, mu rder, sexual assault, aggravated sexual assault, rob ber y , or aggravat ed robbery.” Tex. Penal Code Ann. § 9.32(a).

2. Sta n dard of review

The d ue
- process guarantee of the Fourteenth Amendment requires that a conviction be supported by le gally sufficient eviden ce. Braughton v. State , 5695 S.W.3d 592, 607 (Tex. Crim. Ap p. 2018) ; see also Jackson v. Virginia , 443 U.S. 307, 315

– 16 (1 979)

. I n assessing the suf ficiency of the evidence to support a criminal conviction, “we consider all the evidence in th e light most f avorable to the verdict and determine whether, based on tha t evid e n c e and reaso nable infere nces therefrom, a rational juror cou ld have found the ess ential elements of the crime beyond a reasonable doubt.” Hooper v. State , 214 S.W.3d 9, 1 3 (Te x. Crim. App. 2007) (ci ting Jackson , 443 U.S. at 318

– 19 ); see also B rooks v. St ate , 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. Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
Specific to self

- defen se , the co urt of criminal appeals has exp laine d th a t the
defenda nt bears the burden to p roduce evide nc e suppo rti ng the defense, whi le the State bears the burden of persuasion to dispro ve the raised issues. Braughton , 5 69
S.W.3d at 608

. We look not to whet her the Sta te pre s e n ted evidenc e that refut ed appellant ’ s self

- defense evidence , but to whether afte r viewing all the evidence in the light most favorable to the prosecution, any rational f actfi nder would have
found t he essential elements of murder beyond a reasonabl e doub t and wou ld have
foun d against appellant on the self

- defe nse issue beyond a re asonable doubt. Id. at
609 (citing Saxton v. State , 804 S.W.2d 910, 914 (Te x . Crim. App. 1991) )

.
T he reviewing court must defer to the jury ’ s determin ations o f th e witne sse s ’
credi bility and the weight to be given th eir testimony, as the jury is the sole judge
of those matters. Jackson , 443 U.S. at 326 ; Brooks , 323 S.W.3d at 899

– 900

. S elf

- defense is a fact issue to be determined by the jury and the jury is f ree to

ac cept or reject any def e nsive evidence on the issue. Saxton , 804 S.W.2d at 913

– 14.6 3. Jury ’ s rejection of s elf

- defense was supported by legally s uffic ient evidence Appellant ’ s claim of sel f

- defense rests primarily on the testimony of a neigh b or wh o saw t h e s ho oti ng a nd testified th at appell ant appeared scared a nd

“ was trying to defend himse lf. ” Appellant argues he was injured in the fight and
shot Keith when Kei th advanced towards him to continue the fight

. T herefore, appellant argues no rati onal j u ry cou ld h av e rejec ted h is claim of self

- defense. We
d isagree.
Appe llant ’ s argument omits discussion of other witness testimony at trial

. Furth er, t he neighbor ’ s testimony established that appellant appeared surprised
when he came across Keith a sec ond ti me a nd that h e shot Keith when Kei th stepped towards hi m. However, the nei ghbor ’ s testimony did not establish that appellant had a reasonable ex pecta tion or fear o f death or serious bodily i njury
from the use of unlawful deadly force at the hands of Keit h

.
T hi s n eigh b o r saw b oth the fight and the sho o ting fro m the vantage point of
her balcony . T h e n eighbor wa s familiar with ap pe llant and believed he lived in
the ir apartment complex. During the fight, the neighbor t estified she saw appellant get hit i n th e h ea d rep eate dl y and c hoke d until a third individual bro ke up the fight. 2 She saw Keith looking for something in two different ve hicles, but she
testified that she did not believe he found what he was looking for and she never

saw a w eapon in his hand s. A fte r se ver al m in utes, s he s aw appell ant and Keith

come ac r oss each other again after they came around a corner . Although she initially des cr ibed Keith as trying to “ chase ” appellant, she e xplained that she saw Keith take a s tep forward or walk towards appe lla nt

. Onc e K e it h took a st ep

2 This detail varies from other witness es w ho describe the fight as spontaneously breaking up with appella nt r unning away.7 forwar d, she testified t hat app ellant pulled a gun out of his pocket and shot Keith

. Although t his neighbor testified that she thou ght appellant was scared because she
saw him “ jump , ” she furt her testified appellant looked sca red f ro m t he e nd of the
fi g ht throug h the shoo t ing

. F inal ly, t he neighbor also testified that appellant just turned around and walked away after he shot Keith

. There was also testimony from a vis ito r to the apartment comple x who drove
in and saw Ke ith pacing al on e o n a si dew alk attem pting to calm dow n. W he n the
visitor got out of her car, she heard someone say “ Hey, what are you doing with
that ? ” She described turning around to see Keith with his hand s up looking
terrified. She then said Keith appea re d to try to s pea k c a lm ly to a ppell ant and
de

- escala te t he s ituation before appellant shot him

. The jury charge , in accordance with the Penal Code , provided instru ctions to the jury on self

- defense that if : 3

i t reasonably appeared to the [appellant] that his life or p er son was i n dange r an d there was creat ed i n hi s mind a reasonable expectation or fear of death or serious bodily i njury from the use of unlawful deadl y force at the hands of Keith Johnson , and that actin g under such apprehension and reasonab ly b elieving t ha t t he u se o f dea dly force on his part was imm ediately necessary to protect himself against Keith Johnson ’ s use or attempted use of unlawful deadly fo rce , he shot Keith Johnson , then you should acquit the defendant on the grounds of self

- def ense

. A ppell an t the refo re h ad th e bu rden to offer ev iden ce t hat he reasonably believed that deadly force was immediately necessary t o protect himself against Keith ’ s use

or attempted use of unlawful deadly force. Although there had been a fight
between Ke ith a nd appel lant ap p rox im ately t en minutes before th e sh ooti ng , t here
is no evidence in the record that Keith followed appellant to his apartment to

3 N o o bject i o ns to the jury charge were raise d in the trial court , and app el lan t does no t attempt to challenge the charge on appeal.8 conti nue the fight. At the time of the sho oting, testimony established there was no

co ntact between the me n an d they were a t l east s eve ral f eet away from each other

. The testimony is also undisputed that Keith was unarmed bu t appellant carr ied a weapon at the time of the shooting. Therefore, the re was no evidence of a threat of imminent, physi cal, serious bodi ly injury to ap pe lla n t

. We conclu de there was legally sufficient evidence supporting the jury ’ s rejection of appellant ’ s cla im of self

- defense and overrule ap pellant ’ s sole issue on

appeal.

III. C ONC LUSION

We affi rm the trial cou rt ’ s jud gment as challenged on appeal.

/s/ Cha rles A. Spain Justice

Panel consists of Justices Spain , Poissant , and Wilson

. Do Not Publish

— T ex

. R. App

. P. 4 7 .2( b )

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