PD-1039-14

Court of Criminal Appeals of Texas

Jose Guadalupe Rodriguez Elizondo,

Appellant

v. 

State of Texas,

Appellee

ON APPEAL FROM CAUSE NO. 13-12-00028-CR IN THE THIRTEENTH COURT OF 

APPEALS

TRIAL COURT CAUSE NO. CR-3485-10-I

398TH JUDICIAL DISTRICT COURT OF HIDALGO COUNTY, TEXAS 

HON. AIDA SALINAS FLORES/HON. LINDA YAÑEZ PRESIDING

APPELLANT JOSE GUADALUPE RODRIGUEZ ELIZONDO’S 

AMENDED PETITION FOR DISCRETIONARY REVIEW

ORAL ARGUMENT REQUESTED Brandy Wingate Voss

State Bar No. 24037046

SMITH LAW GROUP, P.C.

820 E. Hackberry Ave.

McAllen, TX 78501

(956) 683-6330

(956) 225-0406 (fax)

Counsel for Appellant Jose 

Guadalupe Rodriguez Elizondo

PD-1039-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 3/11/2015 3:54:30 PM

Accepted 3/12/2015 9:11:00 AM

ABEL ACOSTA

CLERK
i

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Trial Court Judges

Appellant

Jose Guadalupe Rodriguez Elizondo

Hon. Aida Salinas Flores

Hon. Linda Yañez sitting by assignment

Appellate Counsel

Brandy Wingate Voss 

Smith Law Group, P.C.

820 E. Hackberry Ave.

McAllen, Texas 78501

Trial Counsel

Santos Maldonado, Jr.

209 E. University Dr.

Edinburg, Texas 78539

Appellee

State of Texas

Trial Counsel

Rolando Cantu

Criselda Rincon-Flores

Hidalgo County District Attorney’s 

Office

Asst. Criminal District Attorneys

100 N. Closner 

Edinburg, Texas 78539

Appellate Counsel

Ted Hake

Michael Morris

Hidalgo County District Attorney’s 

Office

Assistant District Attorneys—Appeals 

Division

100 N Closner Rm 303

Edinburg, TX 78539
ii

TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL................................................i

TABLE OF CONTENTS .............................................................................................ii

INDEX OF AUTHORITIES....................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT................................................. vi

STATEMENT OF THE CASE ................................................................................... vi

STATEMENT OF PROCEDURAL HISTORY....................................................... viii

GROUNDS FOR REVIEW........................................................................................ix

ARGUMENT................................................................................................................1

I. Fleeing to a vehicle nearly 70 yards away from an initial 

altercation should be sufficient abandonment and not a mere 

change of position. .............................................................................................1

II. The court of appeals should have analyzed all the elements 

of Smith v. State before determining that Elizondo 

provoked the second altercation. .......................................................................3

III. The court of appeals affirmed on a jury charge that was 

grossly incorrect by ignoring and then misapplying this Court’s precedent. ....8

A. The court of appeals erroneously refused to review two 

omissions from the charge, in conflict with this Court’s 

prior decisions..........................................................................................9

B. The court of appeals erroneously failed to properly apply 

the appropriate harm analysis to the other charge errors .....................11
iii

C. The jury charge was a garbled mess, and a review of the 

complete charge and application of the proper harm 

analyses requires reversal. ......................................................................15

CONCLUSION AND PRAYER................................................................................19

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e) .......................................20

CERTIFICATE OF SERVICE...................................................................................21

APPENDIX .................................................................................................................22
iv

INDEX OF AUTHORITIES

Cases

Barrera v. State, 

982 S.W.2d 415 (Tex. Crim. App. 1998)....................................................... 10, 11

Brown v. State, 

651 S.W.2d 782 (Tex. Crim. App. 1983)...............................................................17

Carlile v. State, 

255 S.W. 990 (Tex. Crim. App. 1923). ....................................................................2

Cornet v. State, 

417 S.W.3d 446 (Tex. Crim. App. 2013)...............................................................14

Elizondo v. State, 

No. 13-12-00028-CR, 2014 WL222834 (Tex. App.—Corpus Christi 

Jan. 16, 2014, pet. filed) (mem. op., not designated for publication).............passim

Ervin v. State, 

367 S.W.2d 680 (Tex. Crim. App. 1963).................................................................2

Frank v. State, 

688 S.W.2d 863 (Tex. Crim. App. 1985)...............................................................10

Gray v. State, 

388 S.W.2d 710 (Tex. Crim. App. 1964). ................................................................2

Lerma v. State, 

807 S.W.2d 599 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).....................10

Mendoza v. State, 

349 S.W.3d 273 (Tex. App.—Dallas 2011, pet. ref’d).................................. 6, 17, 19
v

Reeves v. State,

No. 01-10-00395-CR, 2012 WL 5544770 (Tex. App.—Houston 

[1st Dist.] Nov. 15, 2012) (mem. op. on reh’g, not designated for publication)..6, 7

Reeves v. State,

420 S.W.3d 812 (Tex. Crim. App. 2013)..................................................... 6, 9, 15

Reynolds v. State, 

371 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2012, no pet.)...........................10

Saxton v. State, 

804 S.W.2d 910 (Tex. Crim. App. 1991)...............................................................13

Smith v. State,

965 S.W.2d 509 (Tex. Crim. App. 1998).................................................... 3, 4, 6, 7

Vega v. State,

394 S.W.3d 514 (Tex. Crim. App. 2013)...............................................................11

Statutes

TEX. PENAL CODE ANN. § 9.04.....................................................................................9

TEX. PENAL CODE ANN. § 9.31.....................................................................................1

TEX. PENAL CODE ANN. § 9.32...................................................................................12

Secondary Authority

Tex. Pattern Jury Charges, Criminal Defenses, § B14.2 ...............................................16
vi

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

Appellant, Jose Guadalupe Rodriguez Elizondo, respectfully requests that this 

Court grant his petition for discretionary review and respectfully shows:

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would be beneficial in this case because it presents unique 

circumstances that should be addressed by this Court. Specifically, this case presents 

complicated issues of self-defense, provocation, and abandonment of the difficulty,

and a grossly erroneous jury charge on those defensive issues, with which counsel for 

appellant can assist the Court through oral argument.

STATEMENT OF THE CASE1

This case involves complicated isues of self-defense arising from two separate 

altercations. After his wife was mistreated by a bouncer at a nightclub, Elizondo—an 

off-duty United States Customs officer—was involved in an initial altercation with 

the bouncer and several others outside the club.

2 Elizondo was outnumbered during 

this initial altercation, and he feared for his life.3 The undisputed evidence shows 

 1 The clerk’s record consists of one volume and two supplemental volumes, which will be 

2 16RR183-192. 

3 12 RR 178, 180; 16RR191-195; 17 RR 19, 21.
vii

that Elizondo sought to abandon the difficulty by running nearly seventy yards to his 

truck and getting inside the vehicle.

4

Nevertheless, the bouncers chased Elizondo all the way to his truck, cursing 

and yelling at him to stop running, and then “banging on the windows” of the truck

to force him out.

5 Once at the truck, Elizondo was forcefully removed from it and 

engaged in a second altercation with the men.6 As part of this second altercation, the 

club’s owner, Fermin Limon, Sr., pointed a gun at Elizondo, refused to put the 

weapon down after being told to do so by Elizondo, and Elizondo fired his own gun 

in self-defense, causing Limon, Sr.’s death.7

The court of appeals acknowledged this sequence of events but dismissed 

Elizondo’s self-defense argument with two short, conclusory paragraphs, glossing 

over Elizondo’s arguments distinguishing the two altercations and his assertion that 

he abandoned the difficulty. Elizondo v. State, No. 13-12-00028-CR, 2014

WL222834, at *6 (Tex. App.—Corpus Christi Jan. 16, 2014, pet. filed) (mem. op., 

not designated for publication). The court held that an alleged statement by 

Elizondo after he had already started to flee the difficulty and after the men initiated 

 4 12RR178, 180; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-137, 233; 

16RR113, 197; 21RRDX21.

5 13RR149, 179; 14RR104, 105; 15RR41-42, 237; 16RR27-29.

6 16RR201-203.

7 12RR180-181; 13RR16, 68-69, 134-137, 171-173; 14RR108-109, 250; 15RR15-17, 44-47, 

138, 140, 143, 152; 16RR38, 206-207, 214-215.
viii

a chase to his vehicle provoked the second altercation, undermining Elizondo’s selfdefense justification. Id. The court, however, did not analyze the elements of 

provocation with respect to these statements. Id.

Moreover, the jury charge was incomplete and woefully erroneous. The court 

of appeals rejected Elizondo’s complaints about the jury charge without analyzing all 

of Elizondo’s arguments and without conducting a full harm analysis. Id. Elizondo is 

currently serving a 25-year sentence for murder.8

STATEMENT OF PROCEDURAL HISTORY

Date and citation to Court of Appeals 

Opinion:

The Thirteenth Court of Appeals issued 

its opinion and judgment on January 

16, 2014. Elizondo v. State, No. 13-12-

00028-CR, 2014 WL222834 (Tex. 

App.—Corpus Christi Jan. 16, 2014, pet. 

filed) (mem. op., not designated for 

publication).

Motion for Rehearing and 

Reconsideration En Banc:

Elizondo timely filed motions for 

rehearing and for reconsideration en 

banc on March 3, 2014 (the Thirteenth 

Court granted an extension of time).

Court of Appeals’ Disposition: The Thirteenth Court of Appeals 

overruled Elizondo’s motions for 

rehearing and for reconsideration en 

banc on June 30, 2014, and this Court 

extended the time to file a petition for 

discretionary review.

 8 CR69-71.
ix

GROUNDS FOR REVIEW

1. The evidence showed that Elizondo fled nearly 70 yards to his vehicle

and got inside—the only realistic place to run under the circumstances—only to be 

chased by his attackers and forcibly removed from the vehicle. Under those 

circumstances, did Elizondo sufficiently “abandon the difficulty” to support a selfdefense justification, or was his flight a mere change of position of the parties and a 

continuation of the prior altercation?

2. The State alleged that after Elizondo fled the initial altercation and after 

his attackers began their pursuit, Elizondo made statements that provoked a second 

attack. Was the court of appeals required to conduct a full analysis of the elements 

of provocation under Smith v. State, including (1) whether the defendant did some 

act or used some words which provoked the attack on him; (2) whether the act or 

words were reasonably calculated to provoke the attack; and (3) whether the act was 

done or the words were used for the purpose and with the intent that the defendant 

would have a pretext for inflicting some harm on another? Should the Court reverse 

and render a judgment of acquittal when the words allegedly spoken after a pursuit 

was already underway could not have possibly provoked a pursuit and a further 

attack, and where there is no evidence that the defendant intended to provide a 

pretext for inflicting harm?
x

3. The jury charge contained numerous errors and omissions, which the 

court of appeals recognized. Yet the court of appeals erroneously (1) held that 

omissions from the charge were waived by defense counsel, and (2) failed to apply 

the appropriate harm standard to all the errors presented. Should the Court reverse 

under these circumstances, where after applying the correct harm analysis, it appears 

that the charge as a whole was incomplete, the instructions actually provided were 

woefully inaccurate, and the charge failed to protect and preserve Elizondo’s only 

defense?
1

ARGUMENT

I. Fleeing to a vehicle nearly 70 yards away from an initial 

altercation should be sufficient abandonment and not a mere 

change of position.

Provocation and abandonment are central, complex issues in this case, 

involving a multi-part inquiry. The court of appeals below failed to conduct a 

thorough analysis, instead essentially ignoring Elizondo’s “abandonment” argument. 

As a result, a former United States Customs officer is serving a twenty-five year 

murder sentence.

“[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 ANN.

§ 9.31(a). A defendant, however, is not entitled to use force “if the actor provoked 

the other’s use or attempted use of unlawful force, unless: (A) the actor abandons 

the encounter, or clearly communicates to the other his intent to do so reasonably 

believing he cannot safely abandon the encounter; and (B) the other nevertheless 

continues or attempts to use unlawful force against the actor . . . .” Id. § 9.31 (b)(4).

When there are multiple altercations, courts looking at provocation first 

determine if the initial encounter was abandoned. See Carlile v. State, 255 S.W. 990, 

991-92 (Tex. Crim. App. 1923). This Court has held that “the abandonment of the 
2

difficulty by the defendant does not arise where the difficulty was continuous, the 

only change being in the position of the parties during the progress of the 

encounter.” Ervin v. State, 367 S.W.2d 680, 683-84 (Tex. Crim. App. 1963). Rather, 

it is “necessary that the intention to abandon the difficulty be, in some manner, 

communicated by the appellant so as ‘to advise his adversary that his danger had 

passed, and make his conduct thereafter the pursuit of vengeance rather than 

measures to repel the original assault.’” Id. at 684.

Logically, flight from an altercation will always be a “change of the position of 

the parties,” and this Court has never explained just how much distance is enough 

to constitute abandonment. The Court should take the opportunity to clarify that 

fleeing to a vehicle—where that is the only reasonable location to retreat—is sufficient 

abandonment. See, e.g., Gray v. State, 388 S.W.2d 710, 712 (Tex. Crim. App. 1964).

Here, it is undisputed that the first altercation occurred at the nightclub’s 

door. Regardless of whether Elizondo provoked the initial altercation, he

nevertheless ran almost 70 yards to his vehicle, got inside, and shut the door.9 This 

was not a mere “change of position.” Running that far away from an altercation and 

getting in a vehicle is abandonment, yet the lower court’s opinion does not address 

whether Elizondo’s flight sufficiently communicated his intent. There was no 

 9 11RR95; 12RR178, 180-181; 13RR15, 26, 66; 14RR100-103, 126, 235; 15RR80, 133-

137, 233; 16RR113, 197; 21RRDX21.
3

testimony (1) demonstrating that Elizondo could have fled to any other location, or 

(2) that Elizondo should have left his wife and truck at the establishment in order to 

abandon the altercation.10 It is unclear what more he could have done. That should 

not be the law in Texas, and this Court should grant the petition to clarify the law of 

abandonment.

II. The court of appeals should have analyzed all the elements of

Smith v. State before determining that Elizondo provoked the 

second altercation.

The court of appeals found that Elizondo provoked the second altercation, yet 

it did so without conducting a full analysis as required in Smith v. State, 965 S.W.2d 

509, 512 (Tex. Crim. App. 1998). To invoke the provocation exception to selfdefense, the State must show that 

(1) that the defendant did some act or used some words which 

provoked the attack on him, 

(2) that such act or words were reasonably calculated to provoke the 

attack, and 

(3) that the act was done or the words were used for the purpose 

and with the intent that the defendant would have a pretext for 

inflicting harm upon the other.

Id. The State must show that Elizondo performed some act or used words that 

actually provoked the attack, the words or acts were the type that would ordinarily 

 10 See generally RR.
4

provoke an attack, and he intended to provoke an attack to have a pretext for killing 

Limon, Sr. See id.

Elizondo specifically argued that the first and second altercations should be 

distinguished based on the timing of the events, the first altercation was abandoned

when he ran to nearly 70 yards and got inside his vehicle, and there was no evidence 

he said or did anything as a pretext to kill Limon, Sr. Rejecting Elizondo’s 

arguments in one short paragraph, the court below held:

Elizondo argues, however, that even assuming he provoked the 

initial difficulty, he abandoned this first encounter near the bar by 

running to his pickup truck. This abandonment would thus make him 

eligible for the self-defense affirmative defense. However, we conclude 

that a reasonable jury could have found otherwise. Junior testified that 

when Elizondo left the first difficulty and ran to his pickup truck, he 

was yelling, “Van a ver,” roughly translated as “You will see.” Junior was 

frightened by that statement and believed it constituted a threat to him 

and his co-workers. Further, the jury had Elizondo’s police statement 

wherein he admitted that he “ran towards [his] truck where [he] had 

[his] duty issued H & K 40 Caliber handgun.” This evidence supports 

the jury’s implied finding that Elizondo was running to his truck for his 

firearm, not to abandon or discontinue the fight.

Elizondo, 2014 WL 222834, at *6 (citations omitted).

Affirming on these grounds, however, the court failed to address all of 

Elizondo’s arguments, including:

a. The court of appeals relied on Elizondo’s alleged statement “van a 

ver”—translated as “you will see”—while running away from the initial altercation. Id.
5

Elizondo argued that these words did not actually provoke the pursuit, which was 

already under way, or the continued attack at his truck. Elizondo expressly testified 

that he ran to his truck to get away from his attackers and got inside the vehicle.11

The only testimony regarding the initial reason for the chase came from a bouncer 

named “Junior,” who claimed that he followed Elizondo to his truck to make sure 

he left safely, which is completely consistent with Elizondo’s abandonment of the 

difficulty.

12 The court of appeals disregarded this uncontradicted testimony.

Yet, upon arriving at the truck and discovering Elizondo inside, Junior did 

not then just make sure that Elizondo left—he admitted to hitting Elizondo’s vehicle, 

and other witnesses testified that Junior was also yelling, “Get off, asshole.”13 In fact, 

Rodrigo testified that Junior was trying to get Elizondo to come out of his truck.14

Junior testified that while Elizondo was running away he said the words, “Van 

a ver,” or “you’re going to see,” claiming that he took those words as a threat, but 

Junior expressly testified that he had already started the pursuit by that time.15 Thus, 

those words did not actually provoke the pursuit of Elizondo by Rodrigo, Bryan, and 

 11 16RR113-114, 191-195; 21RRDX21.

12 16RR9-10, 25.

13 13RR149, 179; 14RR104-105; 15RR41-42; 16RR27-29.

14 15RR80.

15 15RR234-235.
6

Junior, which was already underway.16 Smith, 965 S.W.2d at 512 (“A defendant may 

have a desire that the victim will attack him, or he may seek the victim with the 

intent to provoke a difficulty, but the defendant must go further and do or say 

something which actually provokes the attack before he will lose his right to selfdefense.”) (emphasis added); Reeves v. State, No. 01-10-00395-CR, 2012 WL 

5544770, at *4 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012) (mem. op. on reh’g, 

not designated for publication) (“Such threats and conduct could not have provoked 

a fight that was already in progress.”), aff’d, 420 S.W.3d 812 (Tex. Crim. App. 2013). 

This would be a necessary element of any claim by the State that Elizondo’s words, 

while already running away, actually provoked the second altercation, and it is 

simply insufficient given the sequence of events. See Mendoza v. State, 349 S.W.3d 

273, 280-81 (Tex. App.—Dallas 2011, pet. ref’d). 

b. The court of appeals likewise did not address whether the words “van a 

ver” were reasonably calculated to provoke a pursuit and further attack. In fact, the 

opinion does not mention this requirement at all. Elizondo argued there was no 

showing that the words were reasonably calculated to provoke an attack or that the 

words were used for the purpose and with the intent to provide Elizondo with a 

pretext for inflicting harm upon Junior or the ulitmate victim, Limon, Sr. Smith, 965 

 16 15RR234-235.
7

S.W.2d at 512. “Although a jury can rely upon wholly circumstantial evidence to 

find provoking acts or words, such evidence must create more than a suspicion 

because juries are not permitted to reach speculative conclusions.” Reeves, 2012 WL 

5544770, at *5. There was simply no evidence to support a finding that the words, 

“Van a ver,” were of the type that were reasonably capable of causing an attack or 

had a reasonable tendency to cause an attack. Smith, 965 S.W.2d at 517 (“An act is 

reasonably calculated to cause an attack if it is reasonably capable of causing an 

attack, or if it has a reasonable tendency to cause an attack. Some provoking acts or 

words can by their own nature be legally sufficient to support a jury finding.”). 

In fact, Junior’s own explanation for the pursuit belies any reliance on the 

words, “Van a ver,” as the provocation for the second altercation, as he testified he 

followed merely to make sure that Elizondo was going to leave and that Elizondo’s 

words were spoken after the pursuit was already underway.17 Yet, once he discovered 

Elizondo already inside the vehicle, he banged on the window to get him out of the 

truck. 

There was nothing presented that showed that Elizondo intended to do 

anything other than escape the attack by running to his truck—there is nothing to 

support a finding that Elizondo intended his actions to provoke Limon, Sr. into 

 17 15RR234-235; 16RR9-10, 25.
8

pointing a weapon at him as a pretext for killing him. The court of appeals relied on 

a statement given to police where Elizondo said that he “ran towards [his] truck 

where [he] had [his] duty issued H & K 40 Caliber handgun.” Elizondo, 2014 WL 

222834, at *6. The fact that Elizondo ran towards his truck where his gun was 

located does not imply that he intended to continue the altercation at the truck or 

that he intended to use the altercation as a pretext to kill Limon, Sr.—in fact, the 

same statement shows that Elizondo perceived that the men were “attacking” him 

and he “just thought [he] needed to get away from them before they take him to the 

ground.”18 The statement relied upon by the court of appeals can only support its 

decision when taken completely out of context. Elizondo respectfully requests that 

this Court grant the petition and conduct the analysis that the court of appeals 

should have undertaken.

III. The court of appeals affirmed on a jury charge that was grossly 

incorrect by ignoring and then misapplying this Court’s 

precedent. 

The court of appeals’ opinion demonstrates an inconsistent application of 

this Court’s precedent that could lead to erroneous future decisions in an area of 

 18 21RRDX21.
9

law that is already confusing at best. Elizondo raised four19 different charge errors, 

which the court of appeals erroneously rejected without applying the proper 

preservation and harm standards. Ultimately, Elizondo’s conviction was affirmed on

a jury charge that was an “impenetrable forest of legal ‘argle-bargle.’” Reeves, 420 

S.W.3d at 817.

A. The court of appeals erroneously refused to review two 

omissions from the charge, in conflict with this Court’s prior 

decisions 

Elizondo argued below that once the trial court undertook to charge the jury 

on the law of self-defense, it had the obligation to provide correct and complete 

instructions—the self-defense instructions should have included instructions on the 

law of multiple assailants and threats as justifiable force.

The jury charge did not provide an instruction on section 9.04, regarding a 

threat of deadly force by production of a weapon. See TEX. PENAL CODE ANN. § 

9.04. This was certainly raised by the evidence. Elizondo stated he intended to grab 

his gun and his credentials and thought that if he displayed them, the men might 

 19 Elizondo also argued that provocation should not have been submitted to the jury. 

Again, the court of appeals failed to properly apply Smith v. State to the evidence and rejected 

Elizondo’s charge arguments based on its erroneous finding that Elizondo did not abandon the 

first encounter. Elizondo submits that if the court had properly analyzed Smith v. State, the jury 

charge should not have included a provocation instruction, and Elizondo respectfully requests the 

ability to fully brief this issue if review is granted.
10

stop.20 Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston [1st Dist.] 2012, 

no pet.).

Additionally, the jury charge omitted any reference to the law of multiple 

assailants, instead instructing the jury with reference only to Limon, Sr.’s conduct. 

This Court, however, has held that when there are multiple assailants, a jury charge 

focusing on only one of those assailants is too restrictive. Frank v. State, 688 S.W.2d 

863, 868 (Tex. Crim. App. 1985); Lerma v. State, 807 S.W.2d 599, 601 (Tex. App.—

Houston [14th Dist.] 1991, pet. ref’d). There was certainly evidence in the record 

that multiple attackers were pursuing Elizondo.

21 It was error for the trial court to 

limit its instructions to Elizondo’s beliefs as to the “person against [whom] deadly 

force was used.”22

Elizondo argued below that Barrera v. State required treating the omission of 

the multiple assailants charge as “error” that the court could properly review under 

Almanza. In Barrera, this Court held that when a trial court undertakes to instruct a 

jury on a defense raised by the evidence, that defense becomes the law applicable to 

the case, and the trial court has a duty to state the law correctly. Barrera v. State, 982 

S.W.2d 415, 416 (Tex. Crim. App. 1998). The Court held that where a self-defense 

instruction contains an error to which counsel did not object—in that case a 

 20 16RR200-201.

21 17RR19, 21.

22 2Supp.CR3.
11

complete omission of an application paragraph—the error is subject to review for 

egregious harm. Id. at 417.

This Court later clarified that it does not matter if the defensive instruction 

was initially requested by the defendant or sua sponte included by the judge—the 

judge bears sole responsibility for errors in the charge:

However, if the trial judge does charge on a defensive issue 

(regardless of whether he does so sua sponte or upon a party’s request), but fails 

to do so correctly, this is charge error subject to review under Almanza.

If there was an objection, reversal is required if the accused suffered

“some harm” from the error. If no proper objection was made at trial, a 

reversal is required only if the error caused “egregious harm.”

Vega v. State, 394 S.W.3d 514, 518-19 (Tex. Crim. App. 2013) (emphasis added).

The court of appeals, however, refused to recognize this precedent and held that 

both the “threats as justifiable force” and “multiple assailants” issues were waived by 

defense counsel’s failure to request the instructions. Elizondo, 2014 WL 222834, at 

*10. The court erroneously refused to review these errors or apply a harm analysis.

B. The court of appeals erroneously failed to properly apply the 

appropriate harm analysis to the other charge errors

Elizondo further pointed out two other errors in the jury charge, which the 

court of appeals held were reviewable but then failed to properly analyze under 

Almanza.
12

First, the presumption of reasonableness instruction was incomplete. The jury 

was instructed that a presumption of reasonableness would arise if the actor “knew 

or had reason to believe that the person against [whom] deadly force was used was 

committing or attempting to commit murder.”23 However, Texas Penal Code section 

9.32(b) provides that the presumption arises in two other situations raised by the 

evidence in this case, where the actor knew or had reason to believe an assailant “(A) 

unlawfully and with force entered, or was attempting to enter unlawfully and with 

force, the actor’s occupied habitation, vehicle, or place of business or employment;”

and “(B) unlawfully and with force removed, or was attempting to remove unlawfully 

and with force, the actor from the actor’s habitation, vehicle, or place of business or 

employment.” TEX. PENAL CODE ANN. § 9.32(b)(1)(A)-(B). Here, the evidence 

showed that Elizondo knew or had reason to believe that Junior either unlawfully 

and with force entered Elizondo’s vehicle or removed him from the vehicle, or was 

attempting to do so.24 Defense counsel did not object to this charge, and while the 

court of appeals agreed that the evidence “warranted the inclusion of these 

instructions,” it nevertheless found that the error was not egregiously harmful.

Elizondo, 2014 WL 222834, at *9.

 23 2Supp.CR3.

24 12RR178, 180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134; 15RR233; 16RR113, 

197; 21RRDX21.
13

Second, Elizondo argued that the provocation instruction changed the State’s 

burden of proof by erroneously telling the jury that if it found provocation, it must 

find Elizondo guilty of murder.25 The jury received this 169-word, unintelligible 

instruction:

So, in this case, if you find and believe from the evidence beyond 

a reasonable doubt that the defendant, Jose Guadalupe Rodriguez 

Elizondo, immediately before the difficultly, then and there did some 

act, or used some language, or did both, as the case may be, with the 

intent on his, the defendant’s, part to produce the occasion for killing 

the deceased, Fermin Limon, and to bring on the difficultly with the 

said deceased, and that such words and conduct on the defendant’s 

part, if there were such, were reasonably calculated to, and did, provoke 

the difficulty, and that on such account the deceased attacked 

defendant with deadly force, or reasonably appeared to defendant to so 

attack him or to be attempting to attack him, and that the defendant 

then killed the said Fermin Limon by use of deadly force, to wit, by 

shooting him with a firearm, in pursuance of his original design, if you 

find there was such design, then you will find the defendant guilty of 

murder.

26

The jury should not have been instructed that if it found provocation, it should find 

Elizondo guilty—rejection of self-defense does not require a finding of all the 

elements of murder. In fact, the jury was required to find all the elements of murder 

and reject self-defense in order to convict. Saxton v. State, 804 S.W.2d 910, 914 (Tex. 

Crim. App. 1991). While the court of appeals erroneously determined otherwise, 

 25 2Supp.CR6.

26 2Supp.CR5-6 (emphasis added).
14

defense counsel did not object to this error.

27 The court found no harm, but it did 

so without evaluating the Almanza factors. Elizondo, 2014 WL 222834, at *9.

In addressing these two charge errors, while paying lip service to the 

applicable standard of review, the court of appeals did not engage in any analysis at 

all. Id. With respect to the presumptions of reasonableness, the court of appeals held 

that because the jury “could have found that Elizondo was not entitled to a selfdefense argument because he provoked the initial difficulty and did not abandon the 

encounter, . . . these extra instructions would not have affected the outcome.” Id.

But just because the jury could have believed the State’s version of the evidence does 

not mean that it was not harmful to submit an incomplete version of Elizondo’s 

defense. Cornet v. State, 417 S.W.3d 446, 453 (Tex. Crim. App. 2013) (“We agree 

with appellant that a review for sufficiency of the evidence cannot substitute for a 

harm analysis.”).

With respect to the erroneous provocation instruction, the court of appeals 

held that “from voir dire to closing arguments, the jury was repeatedly instructed 

that it was the State’s burden to prove that Elizondo committed murder.” Elizondo, 

2014 WL 222834, at *9. Those “repeated” instructions were completely undermined 

 27 See generally 17 RR. 
15

by the instruction that if it rejected provocation, the jury must find Elizondo guilty 

of murder, yet the court of appeals did not address that argument.

C. The jury charge was a garbled mess, and a review of the 

complete charge and application of the proper harm analyses 

requires reversal.

Considering the entire jury charge and all the harm factors, it becomes clear 

that Elizondo suffered the requisite degree of harm. As this Court recently 

explained, 

The trial judge must “distinctly set[ ] forth the law applicable to the 

case” in the jury charge. “It is not the function of the charge merely to 

avoid misleading or confusing the jury: it is the function of the charge 

to lead and to prevent confusion.” While generally, “in the absence of 

evidence to the contrary, we will assume that the jury followed its 

written instructions,” this presupposes that the instructions are 

understandable. Because these instructions were not, “this is not a case 

in which the reviewing court should apply the usual presumption that 

the jury understood and applied the court’s charge in the way it was 

written.”

Reeves, 420 S.W.3d at 819. When the jury charge contains numerous errors, 

incomprehensible wording, and essentially robs the defendant of his only defense, 

the Court should be extraordinarily careful to analyze the harm, recalling that 

neither party has a burden on this issue—the burden of properly analyzing harm falls 

squarely on this Court. Id. at 816, 819.
16

Here, as in Reeves, the jury charge contained numerous errors and was 

incomplete.28 Additionally, the state of the evidence mandates a finding of the 

requisite degree of harm. With respect to provocation and the presumption of 

reasonableness, the evidence was undisputed that Junior and two others pursued 

Elizondo to his vehicle, and Elizondo testified that Junior pulled him out of the 

vehicle.29 All the witnesses testified that, at the very least, Junior was beating on 

Elizondo’s car and trying to force him to come out. 30 But the jury was never 

instructed that, if it believed those facts, a presumption of reasonableness could 

arise.31 Instead, in order to raise the presumption, they were instructed that they had 

 28 The charge contained numerous confusing “converse” instructions, which tell the jury 

that “if the state met its burden, the juries should find against the defendants on the issue of self 

defense,” and which have been criticized by the Texas Pattern Jury Charge committee on Criminal 

Defenses:

The Dallas court of appeals in 1999 appeared sympathetic to a defendant’s 

argument that a converse instruction of the second type is an ‘anachronism in 

Texas law’ that violates the spirit of the prohibition against comment on the 

evidence. Nevertheless, it held that it was bound to precedent establishing that the 

giving of such a converse instruction is not a basis for reversing a conviction. Aldana 

v. State, No. 05-98-00135-CR, 1999 WL 357355, at *6-7 (Tex. App.—Dallas June 4, 

1999, pet. ref’d) (not designated for publication) (relying on Powers v. State, 396 

S.W.2d 389, 391-92 (Tex. Crim. App. 1965)). The Committee concluded that if 

jury instructions on self-defense are properly crafted, so-called converse instructions 

are neither necessary nor desirable. Thus the instruction at section B14.4 below 

does not include them.

Tex. Pattern Jury Charges, Criminal Defenses, § B14.2.9.

29 12RR180; 13RR15, 26, 66; 14RR126, 235; 15RR133-134, 233; 16RR113, 197, 201-

203; 21RRDX21.

30 13RR149, 179; 14RR104-105; 15RR42, 80, 237; 16RR29.

31 2Supp.CR.3.
17

to find that Elizondo knew or had reason to believe that Limon was committing or 

attempting to commit “murder.”32 Compounding this problem was the lack of a 

multiple assailants instruction, which would have allowed the jury to consider 

Junior’s conduct, as well as the other two assailants.

33 Instead, all of the language in 

the charge referred to Limon’s conduct alone.34 Under these circumstances, the jury 

charge failed to adequately protect Elizondo’s right to argue self-defense. See Brown v. 

State, 651 S.W.2d 782, 784 (Tex. Crim. App. 1983).

Second, any evidence of guilt was not so overwhelming that the jury charge 

errors necessarily caused no harm to Elizondo. Mendoza, 349 S.W.3d at 282. But 

nevertheless, the jury was not only instructed to disregard Elizondo’s self-defense if it 

found provocation, it was instructed to find Elizondo guilty of murder. Cf. id. In other 

words, the jury charge implied not only that there was some evidence to support 

every element of provocation, but that there was some evidence to support every 

element of murder. Cf. id. 

Furthermore, self-defense was the focus of the entire case. 35 Specifically, 

Elizondo’s defense centered on the following: (1) he abandoned the difficulty by 

 32 Id.

33 Id.

34 Id.

35 See 17RR82.
18

running to his truck;

36 (2) the club’s bouncers chased Elizondo to his truck yelling 

obscenities with the intent to continue an attack on Elizondo;

37 (3) Junior then 

banged on Elizondo’s window to get him out of the truck;38 (4) Elizondo was pulled 

out of his truck, and then Limon. Sr. pointed a gun at him.

39 For example, 

provoking the difficulty was not a theory that was downplayed or ignored by the 

State—provocation was the State’s central argument. Specifically, the State argued 

during closing:

This moment in time is pivotal, because he runs from what he 

says are five or six guys beating on him. That’s what he told Deputy 

Hector Garcia. This moment is pivotal, because this is where he said—

or Trooper Champion said that he just got kicked in the head. He 

further says that at some point in time, he books it to his car, to his 

truck, and on the way, he is getting hit on the head (knocking). 

. . . .

Somewhere along the way, while he’s running, he gets hit on the 

head. In his statement he says, at least twice. He needs you to believe 

that he’s being beaten (indicating).

. . . .

He gets to his truck, first thing he does is pull out a weapon. 

Now, his testimony is that he got into his truck and closed the door. 

Far different from what is in his statement. He grabs the gun—and he 

 36 17RR89.

37 17RR90-92.

38 17RR95-96.

39 17RR98.
19

decides to grab that gun—and at that point in time when he grabs that 

gun, another escalation. Things just got deadly, and all bets are off. 

Everybody’s life now is in danger.40

Thus, the State did not distinguish between the two altercations, but was allowed to 

argue that the first altercation was the provocation that mattered. The self-defense 

instructions took up a significant part of the jury charge.41 Mendoza, 349 S.W.3d at 

283. Furthermore, the state of the evidence shows egregious harm, given that 

Elizondo admitted to shooting Limon. See id.

CONCLUSION AND PRAYER

This Court should grant review, request additional briefing, and render the 

judgment that the court of appeals should have rendered. The Court should reverse 

the judgment of the lower courts and render a judgment of acquittal or, 

alternatively, reverse and remand for further proceedings below.

 40 17RR112-114.

41 See 2Supp.CR5-6.
20

Respectfully submitted,

/s/ Brandy Wingate Voss

Brandy Wingate Voss

State Bar No. 24037046

SMITH LAW GROUP, P.C.

820 E. Hackberry Ave.

McAllen, TX 78501

(956) 683-6330

(956) 225-0406 (fax)

brandy@appealsplus.com

Counsel for Appellant

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e)

This document complies with the typeface requirements of Tex. R. App. P. 

9.4(e) because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document also complies with the 

word-count limitations of Tex. R. App. P. 9.4(i), because it contains 4,499 words, 

excluding the parts exempted by Rule 9.4.

/s/ Brandy Wingate Voss

Brandy Wingate Voss
21

CERTIFICATE OF SERVICE

On March 11, 2015, in compliance with Texas Rule of Appellate Procedure 

9.5, I served a copy of this document upon all other parties to the trial court’s 

judgment and the respondent by first-class United States mail, return receipt 

requested, properly posted and deliverable as follows:

Ted Hake

Michael Morris

Assistant District Attorney

Appeals Section

Office of Criminal District Attorney

Hidalgo County, Texas

100 N. Closner, Rm 303

Edinburg, Texas 78539

Fax: (956) 380-0407

ted.hake@da.co.hidalgo.tx.us

michael.morris@da.co.hidalgo.tx.us

Lisa C. McMinn

John R. Messinger

State Prosecuting Attorney

Office of State Prosecuting Attorney of Texas

P. O. Box 13046 

Austin, Texas 78711-3046

Fax: (512) 463-5724

/s/ Brandy Wingate Voss

Brandy Wingate Voss
22

APPENDIX
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 222834

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Do not publish. Tex.R.App. P. 47.2(b).

Court of Appeals of Texas,

Corpus Christi–Edinburg.

Jose Guadalupe Rodriguez ELIZONDO, Appellant,

v.

The STATE of Texas, Appellee.

No. 13–12–00028–CR. | Jan. 16, 2014.

On appeal from the 398th District Court of Hidalgo County,

Texas.

Attorneys and Law Firms

Brandy M. Wingate, for Jose Guadalupe Rodriguez Elizondo.

Rene A. Guerra, for The State of Texas.

Before Chief Justice VALDEZ and Justices BENAVIDES

and LONGORIA.

MEMORANDUM OPINION

Memorandum Opinion by Justice BENAVIDES.

*1 Appellant, Jose Guadalupe Rodriguez Elizondo, was

convicted of murder and sentenced to twenty-five years

in prison at the Texas Department of Criminal Justice—

Institutional Division. By two issues, Elizondo argues that:

(1) the evidence was legally insufficient to support the jury's

rejection of his self-defense argument and (2) the jury charge

was erroneous and harmful, requiring reversal. We affirm.

I. BACKGROUND

The undisputed facts reveal that, on August 8, 2010, appellant

Elizondo, his brother Juan, and his wife Maria went to

a barbeque at Elizondo's mother house. At the barbeque,

Elizondo, Juan, and Maria socialized. Elizondo testified that

he drank approximately two beers, while his brother Juan

admitted to finishing a six-pack of beer. Maria did not drink at

that time. The three then decided to go to Punto 3, a nightclub

in Mission, Texas. Punto 3 was owned by Fermin Limon, Sr.,

his wife Nora, his son Fermin Limon, Jr. (Junior), and his

daughter Mireya. Elizondo and Maria went home to change

and then proceeded to the bar. Juan was picked up by a

friend and arrived later. All of the parties were at the bar

by 12:45 a.m. At this point, the versions of what occurred

differ, therefore, we will summarize each relevant witness's

testimony.

A. Jose Elizondo

Elizondo, a customs agent employed by the United States

Department of Homeland Security, testified that he arrived at

the bar with his wife in his white Dodge pickup. He stated

that, as a licensed peace officer for the State of Texas, he

has an assigned pistol from U.S. Customs. This pistol was

in the console of his pickup truck, as well as his credentials

identifying him as a federal agent. Elizondo explained that,

under federal law, he is authorized to carry a weapon at all

times. He left his pistol and credentials in the car when he and

his wife entered the club.

Elizondo testified that he had gone into the bar and then went

outside, when he saw his wife Maria exit the bar looking

“teary-eyed,” “emotional,” and “in distress.” He asked her

what was wrong and she said that someone pushed her “really

ugly.” She pointed to the man who had allegedly pushed

her, who turned out to be Junior. Elizondo asked Junior why

he had pushed his wife, and he said Junior was cocky and

aggressive towards him. Elizondo claimed that he did not

know Junior worked at the bar because he was wearing a

different shirt than the other Punto 3 employees—he thought

Junior was just another customer. Elizondo called Junior a

curse word in Spanish and Junior responded by pushing him.

Elizondo pushed back. Then, Elizondo claimed that Rigo,

another security employee, punched Elizondo on the right

side of his face. Elizondo punched back, and then became

enthralled in a brawl with at least four nightclub employees.

Elizondo believed that he could be killed if he fell to the

ground, so as soon as he could, he ran to his truck. The

distance from the bar to his truck was approximately seventy

yards. Elizondo testified that he could not believe it when

he realized his aggressors were following him. He stated that

he heard, “Stop, asshole,” and that the men tried to trip his

boots, but he did not stop running. He ran past a fence to

his car. While running, he pulled out the control to his truck

and unlocked his pickup. He testified that, at that time, he

remembered he had his gun in the truck.
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

*2 As soon as he arrived at his pickup, Elizondo testified

that he got in, closed the door, and grabbed the gun from his

console. He wanted to grab his credentials, too, but he claimed

that Junior reached in and pulled him out of his truck. After

being pulled out, Elizondo claimed he started hitting Junior

to protect himself. Then, Elizondo's brother Juan arrived and

pulled Junior off of him. At that point, Elizondo then saw

a man approaching his vehicle with a gun. This person was

Limon. Elizondo testified that Limon pointed the gun at him

and did not say anything. Elizondo claimed that he shouted to

Limon, “U.S. Customs” and told him to “throw the gun” about

two times. He claimed that Limon never lowered his gun.

Elizondo fired, claiming he had “no other choice” because he

was convinced Limon was going to shoot.

On cross-examination, the prosecution questioned Elizondo

with the statement he gave to police the night of the shooting.

Although Elizondo testified that he didn't remember he had

his gun in his console until he began running to his truck, his

statement provided that, “I ran towards my truck where I had

my duty issued H & K 40 Caliber handgun.” The prosecution

suggested that Elizondo ran to the truck specifically to

retaliate against the security guards with his gun. Elizondo

denied this assertion.

B. Juan Elizondo

Juan, appellant's brother, testified that when he arrived at

Punto 3 with his friend, Elizondo and his wife were already

there. Juan said hello to some friends. He then bought a beer

for himself and his brother, and a mixed drink for his sisterin-law Maria. He stated that he saw a fight erupt between two

women and that he tried to break up the fight, even though

his brother told him “not to get involved.” Juan was escorted

out of the building by Punto 3 security along with the two

fighting women. After explaining the situation to Limon, Sr.,

whom he thought was the head of security or a manager, he

was allowed back inside the club.

As soon as Juan entered, though, he testified that he noticed

people running out. He heard a “commotion” and went

outside again, because he did not see his brother inside the

club. He also thought he heard his sister-in-law Maria yelling.

When he got outside, Juan saw Maria “crying” and “yelling.”

Juan saw “at least three guys hitting” Elizondo when his

brother started running to his pickup truck. Juan testified

that the three security guards followed his brother, so he

ran after them, too. When he arrived at Elizondo's truck, he

saw Elizondo and Junior struggling. He pulled Junior off his

brother's back and began fighting with him. At that point, he

heard his brother yell, “U.S. Customs” and “please put the

gun down.” Then he heard two gunshots.

C. Maria Elizondo

Maria Elizondo, Elizondo's wife, confirmed that her husband

and brother-in-law Juan had been drinking at their mother's

home prior to going to Punto 3. After she and her husband

arrived at the Punto 3 nightclub, Juan handed her a margarita.

Maria and her husband then danced two songs. After dancing,

Maria talked to some friends while her husband went with

his brother. When Maria saw her husband exiting the bar,

she started to follow him out. She still had her drink in her

hand. She testified that, as she approached the exit, a female

employee working at the front entrance stated, “This stupid

lady doesn't want to leave her drink behind.” Maria went

back and set her drink down at the bar, but stated that she

was offended by the woman's words. She testified that as she

was walking back towards the entrance, Junior arrived and

grabbed her. Maria testified that he told her, “I know women

like you” and to “get out.” Then, according to Maria, Junior

pushed her and took her outside. Junior then went back into

the club.

*3 Maria, upset, began looking for her husband outside. She

noticed Junior had returned outside laughing and she thought

he was making fun of her. She found her husband, pointed

Junior out to him, and explained that Junior had pushed

her inside. Maria stated that Elizondo then asked Junior,

“Why were you pushing my wife?” A fight then ensued.

Maria claims that a security guard punched her husband

in the face, and that the men were yelling, grabbing, and

pushing. She said she yelled at the Punto 3 security guards to

leave her husband alone. Then, she testified that her husband

started running towards his truck and that the security guards

followed him, yelling, “Stop asshole!” She also testified that

they were trying to trip him while he was running.

Maria ran to her husband's truck, where all the men had

convened. She saw her husband pointing a gun saying,

“Lower your weapon. Lower your weapon.” She did not hear

him say that he was a U.S. Customs agent. Then, Maria heard

her husband's gun fire.

D. Francisco Garcia

Francisco Garcia worked at Punto 3 as a general employee.

His job responsibilities included setting up for the night,

cleaning, working at the door to check for weapons and proper
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

age identification, assisting with security, and performing

tasks as required by the Limon family. He carried a

walkie-talkie and wore a microphone to be in constant

communication with his employers throughout the night.

Francisco testified that, at approximately 1:00 a.m. on August

9, 2013, he was summoned by intercom and through his

walkie-talkie to report to the bar section because a fight

had broken out. He recalled that he, along with four other

security guards, escorted two men and two women who had

been fighting to the nightclub's exit. He then returned to his

assigned watch area that night, the stage area. Seconds later,

Francisco testified that he and all other security employees

were alerted by their walkie-talkies to report outside. Outside,

he noticed a group of people in a fight or “commotion.” He

witnessed the defendant Elizondo run to a white truck. He

then witnessed some of his fellow employees follow Elizondo

and then bang on the window of Elizondo's truck. According

to Francisco, Elizondo then got out of his truck and hit Junior.

He then heard a gunshot and someone yelled, “Run. There's

a gun.” At that point, Francisco called 911, as he saw his

co-workers running from the truck back to the club. He then

saw Limon, Sr. running alongside the fence towards the white

truck. At that point, he did not see Limon, Sr. carrying a

weapon. Once Limon, Sr. got closer to where his son, Junior,

and Elizondo were, he noticed that Limon, Sr. and Elizondo

were pointing guns at each other. He heard Elizondo tell

Limon, Sr. to get on the ground, but Limon, Sr. did not.

Instead, he saw Limon, Sr. hold the gun with one hand and

make gestures with his other hand as if to calm Elizondo

down. Francisco then heard more gunshots and saw Limon,

Sr. fall. At that time, Francisco placed his second call to 911.

E. Rodrigo Hernandez Carrion

*4 Rodrigo Hernandez Carrion (Rigo) also worked at Punto

3 as a general employee. On the night of the incident, Rigo

testified that he was called by walkie-talkie to remove some

women from the premises for fighting. Outside, he saw

Limon, Sr. and Junior talking to two men and a woman. He

said the woman (presumably Maria) was hysterical and being

disrespectful to Junior, calling him “idiot, stupid, sons of

bitches.” He heard Elizondo tell Junior, “Don't disrespect my

woman you son of a bitch” and “Well, son of a bitch, are you

going to calm down or not?”

Rigo then testified that fighting started when Elizondo swung

at Limon, Sr. A brawl ensued. Rigo then witnessed Elizondo

run to his truck, get in, and “close [ ] the door and lock[ ]

it.” Rigo followed, along with his fellow employees. Rodrigo

witnessed Elizondo “looking for something in the console.”

Junior “got to the truck and was hitting the window,” telling

him to “Get off asshole.” He said that then Juan, Elizondo's

brother, grabbed Junior from behind. At that point, Elizondo

got out and started hitting Junior with a gun on Junior's head

and forehead. When Elizondo brandished his gun, though,

Rigo left running, thinking he was going to be killed. He

returned to the club and saw Limon, Sr. approaching the

truck with a gun. Rigo said that Limon, Sr. had a gun in

one hand and was making a gesture with the other hand

as though to calm Elizondo down. He heard Elizondo say,

“Get to the ground, son of a bitch. Get to the ground ...

you dog.” According to Rigo, before Limon, Sr. could

respond, Elizondo “instantly” fired his weapon. Rigo stated

that Elizondo never identified himself as a federal agent that

worked for U.S. Customs. Rigo saw Limon, Sr. “walking,

like, if he was in pain like it hurt,” and then fall down.

F. Fermin Limon, Junior

Junior worked for the family business as a bartender. He

testified that, on the night of the incident, his wife, who

worked at the front counter, informed him that a woman was

trying to leave Punto 3 with an alcoholic drink. This woman

was later identified as Maria, the defendant's wife. Junior

claimed that he grabbed Maria's arm in an effort to stop her

from leaving the premises with her drink, as the club would

be fined by the Texas Alcoholic Beverage Commission for

allowing that. He escorted her to the door and returned to

the bar. At that point, his mother asked him to go outside

and check on his father, as his father had exited when some

patrons had been escorted outside.

Junior saw his father talking to two men and Maria. Maria,

according to Junior, was screaming, calling Junior “pendejo ”

and a “dumb ass.” Her husband, Elizondo, also called Junior

a “pendejo.” Junior took offense to this, and his father Limon,

Sr. told Elizondo not to insult his son. Limon, Sr. pushed his

son back because Elizondo was being “aggressive.” Junior

testified that other employees, including Rigo and Francisco,

were now near the commotion. Junior said that one man,

either Elizondo or his brother Juan, then hit his father, Limon,

Sr. Junior was shocked at this. Next, according to him, Rigo

struck the man back with an open hand. After a skirmish,

Elizondo began running, and the club employees followed

him. Junior heard Elizondo say, “Van a ver ” 1 while running,

and Junior “got scared” because he felt it was “a threat.”

Junior kept following Elizondo because of this threat.
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

*5 When Junior arrived at the truck, Elizondo was “inside

the truck ... searching around.” Junior began hitting the

driver's side window. While banging on the window, he felt

someone grab him from behind in a headlock. It was Juan,

Elizondo's brother. Then, Junior felt punches from both men.

He heard a shot fired and then someone screamed that there

was an “officer.” After the shot, the men let him go and he

ran back to the club. He did not see his father until he crossed

the fence. When he saw Limon, Sr. “all bloody on the floor,”

he became hysterical.

II. LEGAL SUFFICIENCY

A. Standard of Review

In conducting a legal sufficiency review, we view the

evidence in a light most favorable to the verdict and

ask “whether any rational trier of fact could have

found the essential elements of the crime beyond a

reasonable doubt.” Garcia v. State, 367 S.W.3d 684, 686–87

(Tex.Crim.App.2012) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)). The trier of fact, in this case the jury, is the

sole judge of the credibility of witnesses and the weight, if

any, to be given to their testimony. Id.; Brooks v. State, 323

S.W.3d 893, 899 (Tex.Crim.App.2010) (plurality op.). “The

reviewing court must give deference to the responsibility of

the trier of fact to fairly resolve conflict in testimony, to

weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318–

19). In a sufficiency review, “circumstantial evidence is as

probative as direct evidence in establishing the guilt of an

actor, and circumstantial evidence alone can be sufficient

to establish guilt.” Id. “Each fact need not point directly

and independently to the guilty of the appellant, as long as

the cumulative force of all the incriminating circumstances

is sufficient to support the conviction.” Id. If the record

supports conflicting inferences, we presume that the fact

finder resolved the conflict in favor of the verdict. Garcia,

367 S.W.3d at 687; Brooks, 323 S.W.3d at 899.

We measure the sufficiency of the evidence supporting a

conviction “by the elements of the offense as defined by

the hypothetically correct jury charge for the case.” Malik

v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). “Such

a charge would be one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase

the State's burden of proof or unnecessarily restrict the

State's theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Id. A

hypothetically correct murder charge in this case would have

required the jury to find that Elizondo intentionally caused

the death of Limon by shooting him with his gun. See TEX.

PENAL CODE ANN. § 19.02(b)(1) (West 2011).

B. Applicable Law

With regard to Elizondo's self-defense argument, “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.” See id. § 9.31(a) (West

2011). The actor's belief that the force was immediately

necessary is presumed reasonable if the actor knew or had

reason to believe that the person against whom the force was

used was attempting to commit a felony, like murder in this

case. Id. § 9.31(a)(1)(C).

*6 The person who is claiming self-defense cannot have

provoked the person against whom the force was used. Id.

§ 9.31(a)(2). The Texas Court of Criminal Appeals further

elaborated on the doctrine of provocation in Smith v. State:

Provoking the difficulty, as the

doctrine of provocation is commonly

referred to in our jurisprudence, is

a concept in criminal law which

acts as a limitation or total bar on

a defendant's right to self-defense.

The phrase “provoking the difficulty”

is a legal term of art, and more

accurately translates in modern usage

to “provoked the attack.” The rule of

law is that if the defendant provoked

another to make an attack on him, so

that the defendant would have a pretext

for killing the other under the guise of

self-defense, the defendant forfeits his

right of self-defense.

965 S.W.2d 509, 512 (Tex.Crim.App.1998). The use of force

against another is not justified if the actor provoked the

other's use or attempted use of unlawful force, unless the actor

abandons the encounter and the other nevertheless continues

or attempts to use unlawful force against the actor. TEX.

PENAL CODE ANN. § 9.31(b)(4).

C. Discussion
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

By his first issue, Elizondo complains that the evidence was

legally insufficient to support the jury's rejection of his selfdefense argument. We disagree. A reasonable jury could have

believed that Elizondo provoked the fight, which made the

self-defense argument unavailable. See Smith, 965 S.W.2d at

512. Rigo testified that Elizondo told Junior, “Don't disrespect

my woman, you son of a bitch” and “Well, son of a bitch,

are you going to calm down or not?” Junior stated that

Elizondo called him “pendejo ” or “dumbass.” Then, both

Rigo and Junior testified that Elizondo swung, hitting Limon,

Sr. Viewing the evidence in the light most favorable to the

verdict, we hold that a reasonable jury could have rejected

Elizondo's self-defense argument because they believed that

he provoked the initial difficulty. See id.

Elizondo argues, however, that even assuming he provoked

the initial difficulty, he abandoned this first encounter near

the bar by running to his pickup truck. This abandonment

would thus make him eligible for the self-defense affirmative

defense. See TEX. PENAL CODE ANN. § 9.31(b)(4)

(providing that self-defense is available to a defendant who

leaves the altercation but is still pursued). However, we

conclude that a reasonable jury could have found otherwise.

Junior testified that when Elizondo left the first difficulty and

ran to his pickup truck, he was yelling, “Van a ver,” roughly

translated as “You will see.” Junior was frightened by that

statement and believed it constituted a threat to him and his

co-workers. Further, the jury had Elizondo's police statement

wherein he admitted that he “ran towards [his] truck where

[he] had [his] duty issued H & K 40 Caliber handgun.” This

evidence supports the jury's implied finding that Elizondo

was running to his truck for his firearm, not to abandon or

discontinue the fight.

*7 We overrule Elizondo's first issue.

III. JURY CHARGE ERROR

In his second issue, Elizondo contends that the jury charge

contained error.

A. Standard of Review

In analyzing a jury charge issue, or initial inquiry is

whether error exists in the charge submitted to the jury.

Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005)

(en banc); Almanza v. State, 686 S.W.2d 157, 171

(Tex.Crim.App.1985). If error is found, the degree of harm

necessary for reversal depends on whether the appellant

preserved the error by objection. Ngo, 175 S.W.3d at 743.

If the defendant properly objected to the erroneous jury

charge, reversal is required if we find “some harm” to the

defendant's rights. Id. (citing Almanza, 686 S.W.2d at 171).

If no objection was made, we may only reverse if the record

shows egregious harm. Id. at 743–44. “Errors that result in

egregious harm are those that affect ‘the very basis of the

case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally

affect a defensive theory.’ “ Cueva v. State, 339 S.W.3d 839,

858–59 (Tex.App.-Corpus Christi 2011, pet. ref'd).

B. Discussion

Elizondo argues that the jury charge on self defense was

erroneous because it: (1) included a provocation instruction

over Elizondo's objection; (2) did not include all of the

presumptions of reasonable force as provided by section 9.32

of the penal code; (3) improperly stated the provocation

instruction; (4) failed to include an instruction on “threats as

justifiable force”; and (5) failed to include any reference to

multiple assailants. We address each point in turn.

1. Provocation Instruction

Elizondo asserts that the trial court committed error when

it included a provocation instruction to the jury over his

objection. In Matthews v. State, the Texas Court of Criminal

Appeals held that a provocation charge is proper when:

(1) self defense is an issue; (2) there are facts in evidence

which show that the deceased made the first attack on the

defendant; and (3) the defendant did some act or used some

words intended to and calculated to bring on the difficulty

in order to have a pretext for inflicting injury upon the

deceased. 708 S.W.2d 835, 837–38 (Tex.Crim.App.1986).

The determination to include the instruction “is limited to

whether there is any evidence raising the issue.” Id. at 838.

“Words alone may provoke the difficulty, thereby justifying

a provocation charge.” Id. (citing Morrison v. State, 256

S.W.2d 410 (Tex.Crim.App.1953)).

Here, there was some evidence to show that Elizondo

provoked the fight. Rigo testified that Elizondo told Junior,

“Don't disrespect my woman, you son of a bitch” and “Well,

son of a bitch, are you going to calm down or not?” Junior

stated that Elizondo called him a “pendejo ” or “dumbass.”

Then, both Rigo and Junior testified that Elizondo swung,

hitting Limon, Sr. These words and actions constituted

“some” evidence that Elizondo provoked the first difficulty.
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

*8 As noted earlier, however, the provocation doctrine

is limited if the defendant abandoned the difficulty. See

Smith, 965 S.W.2d at 513 n. 1 (citing TEX. PENAL CODE

ANN. § 9.31(b)(4)). Elizondo argues he “abandoned” the

encounter by running from the difficulty outside the bar to

his pickup truck, nearly seventy yards away. Therefore, he

contends that the provocation instruction was improper. To

achieve the abandonment caveat to the provocation doctrine,

though, it is “necessary that the intention to abandon the

difficulty be, in some manner, communicated by the appellant

so as ‘to advise his adversary that his danger has passed,

and make his conduct thereafter the pursuit of vengeance

rather than measures to repel the original assault.’ “ Ervin

v. State, 367 S.W.2d 680, 684 (Tex.Crim.App.1963); see

also TEX. PENAL CODE ANN. § 9.31(b)(4) (providing

that abandonment must be “clearly communicated”). Further,

“the abandonment of the difficulty by the defendant does not

arise where the difficulty was continuous, the only change

being in the position of the parties during the progress of the

encounter.” Ervin, 367 S.W.2d at 683–84 (citing Campbell v.

State, 84 Tex.Crim. 89, 91, 206 S.W. 348 (1918)).

While it is undisputed by all of the witnesses that Elizondo

ran nearly seventy yards away from the first difficulty, Junior

testified that Elizondo was yelling, “Van a ver,” roughly

translated as “You will see,” while running. Junior testified

that he believed that Elizondo's words constituted a threat to

the others, which made Junior scared. These words did not

communicate to Junior that the danger had passed. See id. at

684. Further, the jury was presented with Elizondo's statement

to the police which provided that he “ran towards [his] truck

where [he] had [his] duty issued H & K 40 Caliber handgun.”

This evidence supports a rational inference that Elizondo was

running to his truck for a weapon, not to escape the fight.

See id. at 683–84 (providing that one does not abandon a

difficulty by merely changing positions). Accordingly, we

find that a reasonable jury could have surmised that Elizondo

did not abandon the first encounter, and that the provocation

instruction was therefore merited.

We conclude that the trial court did not err when it submitted

the provocation instruction to the jury because there was

sufficient evidence to raise this issue. Matthews, 708 S.W.2d

at 838. Because we have found no error, no harm analysis is

required. Ngo, 175 S.W.3d at 743. We overrule this issue.

2. Presumptions of Reasonable Force

Elizondo also argues that the trial court erred when it failed

to include all of the presumptions of reasonable force as

provided by section 9.32 of the penal code. TEX. PENAL

CODE ANN. § 9.32. The jury charge only provided that

a presumption of reasonableness would arise if Elizondo

“knew or had reason to believe that the person against

[whom] deadly force was used was committing or attempting

to commit murder.” Id. § 9.32(b)(1)(C). Elizondo argues

that two additional scenarios should have been added to

the charge. First, where the actor knew or had reason to

believe an assailant “unlawfully and with force entered,

or was attempting to enter unlawfully and with force, the

actor's occupied habitation, vehicle, or place of business

or employment.” Id. § 9.32(b)(1)(A). And second, where

the actor “(B) unlawfully and with force removed, or was

attempting to remove unlawfully and with force, the actor

from the actor's habitation, vehicle, or place of business or

employment.” Id. § 9.32(b)(1)(B).

*9 Elizondo complains that he knew or had reason to

believe that Junior unlawfully and with force pulled him out

of his pickup truck, or was attempting to do so. He stated

that Junior's banging on Elizondo's driver's side window

yelling “Get off asshole” meant that he was entitled to those

instructions.

We agree that the evidence in the record warranted the

inclusion of these instructions. Accordingly, we hold that

the trial court erred by omitting them. Having found error,

though, we do not find any egregious harm. 2 Ngo, 175

S.W.3d at 743–44. Because we previously concluded that

a reasonable jury could have found that Elizondo was not

entitled to a self-defense argument because he provoked

the initial difficulty and did not abandon the encounter, see

section III(B)(1) supra, these extra instructions would not

have affected the outcome. See TEX.R.APP. P. 44.2. We

overrule this issue.

3. Improper Provocation Instruction

Elizondo also argued that the provocation instruction changed

the State's burden of proof by instructing the jury to find

Elizondo guilty of murder if he provoked the difficulty. The

charge provided as follows:

So, in this case, if you find and

believe from the evidence beyond a

reasonable doubt that the defendant,

Jose Guadalupe Rodriguez Elizondo,

immediately before the difficulty, then

and there did some act, or used

some language, or did both, as the
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

case may be, with the intent on

his, the defendant's part to produce

the occasion for killing the deceased,

Fermin Limon, and to bring on the

difficulty with the said deceased, and

that such words and conduct on the

defendant's part, if there were such,

were reasonably calculated to, and did,

provoke the difficulty, and that on

such account the deceased attacked

the defendant with deadly force, or

reasonably appeared to defendant to

so attack him or to be attempting to

attack him, and that the defendant then

killed the said Fermin Limon by use

of deadly force, to wit, by shooting

him with a firearm, in pursuance of

his original design, if you find there

was such design, then you will find the

defendant guilty of murder.

(Emphasis added). At trial, Elizondo argued that “the jury

should have been instructed, however, that if it found

provocation, it should reject self-defense.” We agree and hold

that this instruction was erroneous.

Having found error, we turn to a harm analysis. Almanza,

686 S.W.2d at 171. To determine if Elizondo suffered some

harm by this incorrect instruction, we consider “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.” Id. Upon a thorough review

of the trial record and jury charge, though, we find no harm.

From voir dire to closing arguments, the jury was repeatedly

instructed that it was the State's burden to prove that Elizondo

committed murder. The jury charge reinforced this tenet. In

light of the foregoing, we hold that the error was harmless and

overrule this issue.

4. Instruction on “Threats as Justifiable Force”

*10 Elizondo also argues that it was error to fail to include

an instruction on “threats as justifiable force.” Texas Penal

Code section 9.04 provides that:

the threat of force is justified when

the use of force is justified by this

chapter. For purposes of this section,

a threat to cause death or serious

bodily injury by the production of a

weapon or otherwise, as long as the

actor's purpose is limited to creating an

apprehension that he will use deadly

force if necessary, does not constitute

the use of deadly force.

TEX. PENAL CODE ANN. § 9.04. It is undisputed, however,

that Elizondo did not request this instruction. In Posey v.

State, the Texas Court of Criminal Appeals held as follows:

Article 36.14 [of the Texas Code of

Criminal Procedure] ... mandates that

a trial court submit a charge setting

forth the law “applicable to the case.”

The question in this case is whether

this imposes a duty on trial courts

to sua sponte instruct the jury on

unrequested defensive issues. We hold

Article 36.14 imposes no such duty.

966 S.W.2d 57, 62 (Tex.Crim.App.1998). “Though the

evidence might raise a defensive issue, it does not necessarily

follow that a trial court has a duty to sua sponte instruct the

jury on that issue when the defendant does not request such

an instruction.” Id. Elizondo failed to make this request, so

we overrule this issue.

5. Failure to Include a Multiple Assailant Instruction

Finally, Elizondo asserts that the trial court erred when it

failed to include a multiple assailant instruction in the jury

charge. The Texas Court of Criminal Appeals “has held that

a charge which is confined only to the right of self-defense

against the deceased is too restrictive if there is evidence that

more than one person attacked the defendant.” Frank v. State,

688 S.W.2d 863, 868 (Tex.Crim.App.1985) (citing Sanders v.

State, 632 S.W.2d 346 (Tex.Crim.App.1982)). “Accordingly,

a defendant is entitled to a charge on the right of self-defense

against multiple assailants if there is evidence, viewed from

the accused's standpoint, that he was in danger of an unlawful

attack or a threatened attack at the hands of more than one

assailant.” Id. (internal quotations omitted).

Again, however, Elizondo did not ask for this instruction.

Although the evidence at trial raised this issue, with various

witnesses testifying that Elizondo and his brother Juan fought

with at least three Punto 3 employees, the trial court did

not have a sua sponte duty to include a multiple assailant
Elizondo v. State, Not Reported in S.W.3d (2014)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

instruction when it was not requested. See Posey, 966 S.W.2d

at 62. We overrule this issue.

IV. CONCLUSION

Having overruled all of Elizondo's issues, we affirm the trial

court's judgment.

Footnotes

1 Literal translation: “you all will see.”

2 Elizondo's counsel failed to object to the omissions in this instruction.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.