Opinion filed April 18, 2019

In The

Eleventh Court of Appeals __________

No. 11-17-00103-CR

__________

NOE LOPEZ TREVINO, Appellant

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 26485A

M E M O R A N D U M O P I N I O N

The jury convicted Noe Lopez Trevino of the first-degree felony offense of 

murder and assessed his punishment at confinement for a term of twenty-five years 

in the Institutional Division of the Texas Department of Criminal Justice.

TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2011). Appellant brings two issues on 

appeal. He contends that (1) the evidence was legally insufficient to support the 

jury’s rejection of his self-defense claim and (2) the trial court erred when it failed 

to submit jury instructions on the use of deadly force in the defense of property and 

on apparent danger. We affirm. 
2

Background Facts

The jury convicted Appellant of the murder of Lewis Maston. Maston’s 

granddaughter, Erica Hill, testified that she went to the Ol Skool nightclub with 

Maston. Erica decided to leave after a confrontation occurred inside the club. When 

Erica walked outside, more than a dozen people were standing in the middle of the 

street, including Appellant and his cousins, Deanna Flores and Tesia Flores.

Erica testified that Appellant started to argue with two men in the middle of 

the street. The group of people moved to a vacant lot by Gloria’s Grill, a restaurant 

across the street from Ol Skool. Erica testified that Appellant pulled up his shirt and

showed the men a knife in his waistband. The men backed away from Appellant. 

Nevertheless, Appellant continued to yell, and he and the two men continued to

argue. 

Erica testified that Maston came out of the club and saw Erica in the vacant 

lot near the altercation. Erica believed that Maston went over to Appellant and the 

two men to prevent a fight. Erica testified that Maston was known for trying to break 

up fights and keeping the peace. Maston pushed Appellant while Maston was trying 

to separate everyone. The two men backed further away from Appellant and stopped 

yelling. Next, Appellant pushed Maston back, and Maston hit Appellant. Then, 

Appellant grabbed Maston and started “jabbing” Maston. Erica testified that she did 

not realize that Appellant was stabbing Maston until she saw the blood running down 

his shirt. The two men pulled Appellant away from Maston. Appellant got into his 

car with Deanna and Tesia and drove away. Erica then called 9-1-1. 

Another granddaughter of Maston, Ebony Hill, testified that, on the night of 

the alleged offense, she met Erica and Maston at Ol Skool. Ebony described Maston 

as about six feet tall and three hundred pounds. When Ebony left the club, she found 

Erica and a friend, Maurisha Walker, outside Ol Skool. Ebony observed two men

arguing with Appellant. According to Ebony, Maston came out of the club to check 
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on her and Erica. After Maston saw the altercation, Maston stepped between 

Appellant and the two men and appeared to try to prevent a fight. Ebony testified 

that Maston pushed Appellant to the side but did not hit or swing at Appellant. After 

that, Appellant grabbed Maston and appeared to start punching him. Ebony, like 

Erica, did not realize that Appellant was stabbing Maston at the time. Ebony testified 

that Deanna and Tesia pulled Appellant off Maston, but Appellant “looked like he 

wanted to keep stabbing [Maston], but [Ebony and Tesia] literally stopped 

[Appellant].”

Maurisha Walker is a close friend of Ebony. Walker testified that she saw 

Appellant and Maston arguing when she left Ol Skool. Next, Walker saw what 

looked like Appellant punching Maston repeatedly, and Appellant did not stop until 

Deanna and Tesia pulled Appellant back. Walker testified that Appellant looked 

like he “didn’t want to leave” and wanted to keep attacking Maston. The next thing 

Walker heard was Ebony yelling that her grandpa had been stabbed. 

Deanna Flores, Appellant’s cousin, testified that she went to Nueva Luna, 

another nightclub next to Ol Skool, with Appellant and her sister, Tesia. According 

to Deanna, when they left the club, a woman began yelling at Appellant in the 

parking lot. This woman and a couple other women started to follow them to 

Appellant’s car. Deanna testified that the altercation escalated when Maston 

approached Appellant. Deanna claimed that Maston swung at Appellant a couple 

times before Appellant defended himself. Deanna did not see Appellant defend 

himself. Deanna did not report this incident to the police because she thought it was 

“just a fight.”

Tesia Flores testified that, when she left Nueva Luna with Appellant and 

Deanna, a group of people started arguing with Appellant while they walked to 

Appellant’s car. Tesia did not know why the group was angry with Appellant. Next, 

one of the men, presumably Maston, swung at Appellant. Tesia did not see 
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Appellant stab Maston, and she did not remember if she pulled Appellant away from 

Maston. 

Tesia testified that she did not remember anyone hitting Appellant or 

threatening him with serious bodily injury or a deadly weapon. Tesia acknowledged 

that no one prevented Appellant from leaving and that Maston would still be alive if 

Appellant, Tesia, and Deanna had ignored the verbal confrontation and left. 

However, she did not think that they could have gotten into the car without a 

confrontation because she “felt we were trying to avoid anything from happening 

[to] the car, them following us or hitting the car or anything.” 

Appellant testified on his own behalf at the guilt/innocence phase. He testified

that, when he left Nueva Luna, he saw Walker outside and casually greeted her. He 

admitted that he and Walker “had words” several weeks prior. Subsequently, Erica 

and Ebony started arguing with Deanna and Tesia. Then, according to Appellant,

Maston and three men approached Appellant in an aggressive manner, and Maston 

asked Appellant why his granddaughters were arguing with Appellant, Deanna, and 

Tesia. By then, a large crowd had gathered. Appellant testified that, after dodging 

two of Maston’s punches, he defended himself by attacking Maston with his knife. 

Appellant claimed that nobody pulled him off Maston; rather, one of the men from 

the original altercation with Appellant grabbed Maston. Appellant did not report the 

incident to the police because it did not “cross his mind.”

Appellant asserted that he acted in self-defense—he was “being enticed” and 

“harassed” and he “was in fear for his life” and for his cousins. Appellant denied 

scaring off the two men with a knife and claimed that any witnesses who testified 

that he did so were lying. Appellant claimed that he fled to Iowa, where he was 

ultimately arrested, because he was receiving threats by phone and was afraid for his 

life. 
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Abilene Police Detective Chris Milliorn testified that he responded to a report 

of an injured person outside Ol Skool. At Ol Skool, Detective Milliorn found 

Maston unconscious on the ground and a woman tending to his wounds yelling, “It 

was Noe.” An ambulance transported Maston to the hospital. 

Surgeon Rhett Lohman testified that he treated Maston at the hospital. Maston 

had multiple stab wounds to his chest, abdomen, and arms. Maston also had stab 

wounds on the back of his arm; these injuries were consistent with defensive 

wounds. Maston tested positive for alcohol but not for any illegal substances. 

Subsequently, Maston died. Dr. Richard Christian Fries, a deputy medical examiner, 

testified that he performed an autopsy on Maston and determined that the cause of 

death was stab wounds to the chest. 

Sufficiency of the Evidence

In his first issue, Appellant contends that the evidence was legally insufficient 

to support the jury’s rejection of his self-defense claim. Appellant alleges that 

Maston was the first aggressor, that Maston used deadly force, and that at least two 

men threatened Appellant to the point that he had to brandish a knife to deter their 

advance.

Self-defense is a fact issue to be determined by the jury, and a jury’s verdict 

of guilt is an implicit finding that it rejected a defendant’s self-defense theory. 

Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991). For self-defense 

claims, the defendant has the burden of producing some evidence to support the 

claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); see also Saxton, 

804 S.W.2d at 913–14 (contrasting self-defense from affirmative defenses and 

explaining how burdens shift for self-defense). If the defendant produces some 

evidence, the State has “the burden of persuasion to disprove the raised defense.”

Zuliani, 97 S.W.3d at 594. The State’s burden does not require the production of 

any additional evidence; instead, “it requires only that the State prove its case beyond 
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a reasonable doubt.” Id.; see Saxton, 804 S.W.2d at 913. “Because the State bears 

the burden of persuasion to disprove” a claim of self-defense “by establishing its 

case beyond a reasonable doubt, we review both legal and factual sufficiency 

challenges to the jury’s rejection of such a defense under” the legal sufficiency 

standard. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 

2011, pet. ref’d).

We review a sufficiency of the evidence issue under the standard of review 

set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 

893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.

App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the 

evidence in the light most favorable to the verdict and determine whether any 

rational trier of fact could have found the elements of the offense beyond a 

reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010). Thus, when reviewing the sufficiency of the evidence to 

support a conviction involving a claim of self-defense, we review the sufficiency of 

the evidence to support a jury’s rejection of a defendant’s self-defense theory by 

examining all the evidence in the light most favorable to the verdict to determine 

whether any rational trier of fact could have found the essential elements of the 

offense and also could have found against the defendant on the self-defense issue 

beyond a reasonable doubt. Saxton, 804 S.W.2d at 914 (citing Jackson, 443 U.S. 

307).

When conducting a sufficiency review, we consider all the evidence 

admitted at trial, including pieces of evidence that may have been improperly 

admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton 

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s 

role as the sole judge of the witnesses’ credibility and the weight their testimony is 

to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the 
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factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 

319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, 

we presume that the factfinder resolved the conflicts in favor of the verdict and defer 

to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

There is no dispute that Maston died as a result of injuries inflicted by 

Appellant. Under the Penal Code, a person commits murder if he intends to cause 

serious bodily injury and commits an act clearly dangerous to human life that causes 

the death of an individual. PENAL § 19.02(b)(2). The jury determined that Appellant 

committed murder under this provision of the Penal Code. However, the Penal Code 

also states that an individual “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.” Id. § 9.31(a).

Furthermore, the Penal Code provides that an individual “is justified in using deadly 

force against another . . . if the actor would be justified in using force against the 

other” and “when and to the degree the actor reasonably believes the deadly force is 

immediately necessary . . . to protect the actor against the other’s use or attempted 

use of unlawful deadly force.” Id. § 9.32(a). “‘Deadly force’ means force that is 

intended or known by the actor to cause, or in the manner of its use or intended use 

is capable of causing, death or serious bodily injury.” Id. § 9.01(3). A reasonable 

belief is a belief that would be held by an ordinary and prudent person in the same 

circumstances as the actor. Id. § 1.07(a)(42) (West Supp. 2018).

Appellant contends that the evidence was insufficient to disprove self-defense 

because no evidence was offered to show that he did not act unreasonably. To the 

contrary, Appellant asserts that the evidence established that he believed he was 

under attack by deadly force. In support of this proposition, Appellant relies on 

aggravated assault cases wherein the jury determined that a defendant’s use of his 
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hands to commit an assault constituted the use of a deadly weapon. Appellant 

essentially contends that the jury was required to accept Maston’s alleged punching

of Appellant as the use of deadly force. Appellant further contends that it was 

irrational for the jury to conclude that his response to Maston’s punches was 

unreasonable. We disagree with Appellant’s analysis. 

The aggravated assault cases that Appellant cites are distinguishable because 

the jury found that the use of hands in those cases constituted the use of deadly force. 

The jury did not make a similar finding in this case. Additionally, the jury was not 

required to accept that Maston’s actions constituted the use of deadly force against 

Appellant. Erica and Ebony testified that Maston was attempting to break up an 

altercation. Ebony testified that Maston did not hit or swing at Appellant. 

Furthermore, there is evidence supporting the jury’s rejection of Appellant’s 

actions as being reasonable. The State contends that the evidence in this case is 

similar to the facts in Smith v. State. We agree. The defendant in Smith argued that 

he stabbed the victim because he was being “punched, hit, rushed, and ‘aggressed’” 

and that he needed to protect himself and others. Smith, 355 S.W.3d at 146. The 

court noted that the jury’s decision to reject the defendant’s defensive claims 

ultimately hinged on the credibility of the witnesses. Id. “The statements of the 

defendant and his witnesses do not conclusively prove a claim of self-defense or 

defense of a third party.” Id. 

As was the case in Smith, the jury chose not to believe the version of events 

presented by Appellant and his cousins. The credibility of Appellant’s self-defense 

testimony was solely within the jury’s province to determine, and they were free to 

reject it. See Saxton, 804 S.W.2d at 914. Additionally, there was evidence that 

undermined Appellant’s defensive claims, including the testimony of Maston’s 

granddaughters and Walker, as well as Appellant’s flight after the altercation. See
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Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (“Evidence of flight

. . . shows a consciousness of guilt of the crime for which the defendant is on trial.”).

Viewing the evidence in the light most favorable to the jury’s verdict, we 

conclude that a rational trier of fact could have found the elements of murder beyond 

a reasonable doubt while rejecting Appellant’s self-defense claim. We overrule 

Appellant’s first issue on appeal. 

Jury Charge Error

In his second issue, Appellant contends that the trial court erred when it failed 

to sua sponte submit an instruction to the jury on the use of deadly force in the 

defense of property. Appellant asserts that he was entitled to this instruction because 

the evidence shows that Appellant was acting, in part, for the preservation of his car. 

Likewise, Appellant contends that the trial court erred when it failed to include a 

separate “apparent danger” instruction in the jury charge. We disagree. 

“[A]ll alleged jury-charge error must be considered on appellate review 

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 

(Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether 

error occurred; if no error occurred, our analysis ends. Id. If error occurred, whether 

it was preserved then determines the degree of harm required for reversal. Id.; see 

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). Where, as here, Appellant did 

not raise a timely objection to the jury instructions, Appellant will obtain a reversal 

only if the error is so egregious and created such harm that he “has not had a fair and 

impartial trial.” Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171).

Appellant first contends that he was entitled to a jury instruction on the use of 

deadly force in the defense of property because the evidence shows that Appellant 

was acting, in part, to protect his car from the “imminent threat of criminal mischief 

in the night” against his car. A person is justified in using deadly force against 
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another to protect land or tangible, movable property when he reasonably believes 

deadly force is immediately necessary “to prevent the other’s imminent commission 

of . . . criminal mischief during the nighttime.” PENAL § 9.42(2)(A). However, 

Appellant did not request an instruction on the defense of property. 

A trial judge has the duty to instruct the jury on the law applicable to the case 

even if an appellant fails to object to inclusions or exclusions in the charge. 

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). However, a trial judge does 

not have a duty to instruct the jury sua sponte on unrequested defensive issues 

because an unrequested defensive issue is not the law “applicable to the case.” 

Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (citing Posey v. State, 

966 S.W.2d 57, 62 (Tex. Crim. App. 1998)); see CRIM. PROC. art. 36.14. An 

appellant cannot complain on appeal about the trial judge’s failure to include a 

defensive instruction that the appellant did not preserve by request or objection—he 

has procedurally defaulted any such complaint. Id.1

 Accordingly, the jury charge’s 

omission of the defensive issue of defense of property did not constitute error. 

Appellant next contends that he was entitled to an apparent-danger instruction 

in addition to the court’s self-defense instruction. Because the trial court included a 

self-defense instruction in the jury charge, self-defense is the law applicable to this 

case. See Vega, 394 S.W.3d at 519. Thus, the trial court assumed the duty to 

administer that instruction correctly, and a flaw in the charge on this issue would be 

error. Id.; see Mendez v. State, 545 S.W.3d 548, 553 (Tex. Crim. App. 2018). 

“Texas courts have held that when a defendant claims self-defense, his rights 

are fully preserved (and the concept of ‘apparent danger’ is properly presented) when 

 1

Appellant acknowledges that the current state of the law precludes his contention that the jury 

charge is erroneous because the trial court should have sua sponte included a defensive instruction on the 

defense of property. He urges us to overrule Posey and its progeny. We decline to do so. See Zarychta v. 

State, 44 S.W.3d 155, 162 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (As an intermediate court of 

appeals, we are bound by controlling authority from the Court of Criminal Appeals.). 
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a jury charge (1) states that a defendant’s conduct is justified if he reasonably 

believed that the deceased was using or attempting to use unlawful deadly force 

against the defendant, and (2) correctly defines ‘reasonable belief.’” Bundy v. State, 

280 S.W.3d 425, 430 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing Valentine v. 

State, 587 S.W.2d 399, 401 (Tex. Crim. App. [Panel Op.] 1979)). Thus, a separate 

instruction for apparent danger is not required when the charge adequately defines 

reasonable belief and explains when reasonable belief justifies the use of deadly 

force. Id.

Here, the jury charge included an instruction on the issue of self-defense. The 

jury was instructed:

If you all agree the state has proved, beyond a reasonable doubt, 

that the defendant is guilty of the offense of murder as charged in 

paragraph one of the indictment or murder as charged in paragraph two 

of the indictment, you must next consider whether the defendant’s use 

of force was made in self-defense. 

. . . .

A person’s use of deadly force against another that would 

otherwise constitute the crime of murder is not a criminal offense if the 

person reasonably believed the force used was immediately necessary 

to protect the person against the other’s use or attempted use of 

unlawful deadly force. 

(Emphasis added). Additionally, the trial court’s charge defined “reasonable belief” 

as a “belief that an ordinary and prudent person would have held in the same 

circumstances as the defendant.” Thus, Appellant was not entitled to a separate 

instruction on apparent danger because the charge adequately defined reasonable 

belief and explained when reasonable belief justifies the use of deadly force. See 

Valentine, 587 S.W.2d at 401; Bundy, 280 S.W.3d at 430. Thus, the trial court did 

not err when it did not provide a separate instruction on apparent danger. We 

overrule Appellant’s second issue on appeal. 
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This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY 

CHIEF JUSTICE

April 18, 2019

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

 2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.