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Date: 04-18-2019

Case Style:

Juan Hernandez v. The State of Texas

Case Number: 04-18-00217-CR

Judge: Liza A. Rodriguez

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: Joe D. Gonzales

Defendant's Attorney: Jennifer Rossmeier Brown
Michael Lee Young
Michael D. Robbins

Description:


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Hernandez and the two victims, Victor and Jesus, are cousins, and Gloria Martinez is their
aunt. Victor and Jesus were at Gloria’s house following an altercation involving Victor, Jesus,
and Hernandez’s brothers Sonny and Jose. Gloria, Robert Lopez, and Andrea Vallejo were also
present at Gloria’s house. Victor, Jesus, Gloria, Lopez, and Vallejo were outside in front of
Gloria’s house talking when Hernandez arrived with Sonny and Hernandez’s brother-in-law Jesse
Martinez.
Upon arriving at Gloria’s house, Hernandez exited the car and approached Victor, and the
two men appeared to be preparing to fight. After Jesus pulled out a knife, Hernandez returned to
the car and retrieved a shotgun. Victor, Robert, and Andrea ran to the back of the house while
Jesus ran inside the house through the open front door. Hernandez followed Jesus inside the house
and shot him. Hernandez then exited the house where he encountered Victor holding a brick. The
evidence is conflicting regarding the men’s actions; however, the encounter ended with Hernandez
shooting and killing Victor. Hernandez, Sonny, and Martinez then fled the scene.
Sometime later, Hernandez, Sonny, Jose, and their sister went to a police station to provide
information regarding the events. Hernandez was arrested and charged with murder and
aggravated assault with a deadly weapon. After hearing all of the evidence, the jury found
Hernandez guilty of both offenses. Hernandez appeals. LEGAL SUFFICIENCY STANDARD OF REVIEW When addressing a challenge to the sufficiency of the evidence, we consider whether, after
viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979). This standard requires us to defer “to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
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inferences from basic facts to ultimate facts.” Id. The jury is the sole judge of the credibility of
the witnesses, and we presume the jury resolved any conflicts in the evidence in favor of the
verdict. Zuniga v. State, 551 S.W.3d 728, 733 (Tex. Crim. App. 2018). As the sole judge of the
credibility of witnesses, the jury is free to believe all, some, or none of a witness’s testimony. See
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Monreal v. State, 546 S.W.3d 718,
724 (Tex. App.—San Antonio 2018, pet. ref’d). “We may not re-weigh the evidence or substitute
our judgment for that of the factfinder.” Zuniga, 551 S.W.3d at 732. VOLUNTARY ACT In his first issue, Hernandez asserts the evidence is legally insufficient to establish he acted
voluntarily when he shot and killed Victor.
“A person commits an offense only if he voluntarily engages in conduct, including an act,
an omission, or possession.” TEX. PENAL CODE ANN. § 6.01(a). Voluntariness as used in section
6.01(a) “focuses solely on physical acts of the accused.” Farmer v. State, 411 S.W.3d 901, 905
(Tex. Crim. App. 2013). “‘The operative word under Section 6.01(a), for present purposes, is
include.’” Id. at 906 (emphasis added) (quoting Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim.
App. 2003)). “‘[T]the “voluntary act” requirement does not necessarily go to the ultimate act (e.g.,
pulling the trigger), but only that criminal responsibility for the harm must “include an act” that is
voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer).’” Id. (quoting Rogers,
105 S.W.3d at 638). “Thus, a voluntary act that comprised a portion of the commission of the
offense is sufficient to satisfy the requirement of Section 6.01(a), even if that voluntary act was
accidental or the consequences of that act were unintended.” Id. at 906; cf. Ross v. State, 763
S.W.2d 897, 901 (Tex. App.—Dallas 1988, pet. ref’d) (“In the final analysis, a trial court is not
required to charge on involuntary conduct if the defendant engaged in a single voluntary act and
its required mental state—even though an involuntary act may also constitute part of the overall
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conduct.”). For example, the fact that a defendant did not intend to struggle with a victim over a
gun “does not render his conduct in doing so involuntary or any of his bodily movements during
that encounter involuntary.” Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993).
And, even if a defendant did not intend to pull the trigger, a gun does not fire “on its own volition.”
Id.
Hernandez contends his actions were not voluntary because Victor’s shooting was “the
accidental result of a tug-of-war over the barrel of the shotgun.” Hernandez further contends he
was in a “stunned condition” after Victor hit him in the head with a brick, and “[t]he gun went off
accidentally during the [subsequent] struggle” over the shotgun. In support of his arguments,
Hernandez relies on his own testimony; however, that reliance is misplaced. First, the jury could
have disbelieved him. In addition, his own testimony established he engaged in the voluntary acts
of retrieving the shotgun and pointing it at Victor. And, even if Hernandez did not intend to pull
the trigger, the gun did not fire “on its own volition.” Id. Therefore, even if the jury believed that
the gun discharged during a struggle between Hernandez and Victor, Hernandez still engaged in
voluntary acts that comprised a portion of the offense. Thus, the evidence is legally sufficient to
establish Hernandez voluntarily engaged in acts “that comprised a portion of the commission of
the offense [which] is sufficient to satisfy the requirement of Section 6.01(a).” Farmer, 411
S.W.3d at 906.
SELF-DEFENSE/DEFENSE OF A THIRD PERSON In his second and third issues, Hernandez contends the evidence is legally insufficient to
support the jury’s implicit rejection of his claim that he acted in self-defense or in defense of a
third person when he shot Jesus. Hernandez contends the evidence established he grabbed the
shotgun because Jesus had a knife, and he believed Jesus tried to stab him. Hernandez further
contends he did not drive away when he returned to the car to retrieve the shotgun because he was
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concerned Victor or Jesus would retrieve an assault rifle from the house which could be used to
shoot him, Sonny, and Martinez. Finally, he contends the evidence established he shot Jesus when
Jesus kept coming at him with knives. A. Applicable Law “A person is justified in using deadly force against another: (1) if the actor would be
justified in using force against the other under Section 9.31; and (2) when and to the degree the
actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against
the other’s use or attempted use of unlawful deadly force.” TEX. PENAL CODE ANN. § 9.32(a).
Under Section 9.31, “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.” Id. at § 9.31(a).
A person is justified in using deadly force against another to protect a third person if: (1)
he would have been justified in using deadly force to protect himself against the unlawful deadly
force “he reasonably believes to be threatening the third person he seeks to protect;” and (2) he
“reasonably believes his intervention is immediately necessary to protect the third person.” Id. at
§ 9.33. “A person defending on the grounds of defense of a third person stands in the shoes of the
third person.” Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d) (citing Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986)). “Thus, the use of
[deadly] force to protect a third person is justified in any situation in which the third person would
be justified in using [deadly] force to protect himself.” Id.
In considering the justifications of self-defense and defense of a third person, the jury is
not required to find that a victim was actually using or attempting to use unlawful deadly force
against a defendant. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). “A person has
the right to defend himself from apparent danger to the same extent as he would if the danger were
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real.” Id. The only requirement is that a defendant reasonably believe he must act immediately.
See id.
B. Standard of Review: Implicit Rejection of Self-Defense or Defense of a Third Person Once a defendant produces some evidence raising the issue of self-defense or defense of a
third person, the State bears the burden of persuasion to show beyond a reasonable doubt that the
defendant’s actions were not justified. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App.
1991); Valverde v. State, 490 S.W.3d 526, 527–28 (Tex. App.—San Antonio 2016, pet. ref’d);
Smith, 355 S.W.3d at 144. To meet its burden of persuasion, the State is not required to produce
additional evidence. Saxton, 804 S.W.2d at 913; Valverde, 490 S.W.3d at 528; Smith, 355 S.W.3d
at 144. If the jury finds the defendant guilty, it has made an implicit finding against any defensive
theory raised by the defendant. Saxton, 804 S.W.2d at 914; Valverde, 490 S.W.3d at 528; Smith,
355 S.W.3d at 144.
When a defendant challenges the legal sufficiency of the evidence to support the jury’s
implicit rejection of his self-defense or defense of a third party claim, “‘we look not to whether the
State presented evidence which refuted appellant’s self-defense testimony, but rather we determine
whether after viewing all the evidence in the light most favorable to the prosecution, any rational
trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt
and also would have found against appellant on the self-defense issue beyond a reasonable doubt.’”
Valverde, 490 S.W.3d at 528 (quoting Saxton, 804 S.W.2d at 914). In conducting a legal
sufficiency review, we defer to the jury’s assessment of the credibility of the witnesses and the
weight to be given to their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010); Valverde, 490 S.W.3d at 528.
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C. Discussion In order for the jury to find Hernandez was justified in using deadly force, the jury had to
find Hernandez had a “reasonable belief” that deadly force was immediately necessary to protect
himself, Sonny, or Martinez against Jesus’s use or attempted use of unlawful deadly force. A
“reasonable belief” is “a belief that would be held by an ordinary and prudent man in the same
circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42).
In his brief, Hernandez focuses extensively on his own testimony regarding Jesus
threatening him with a knife and continuing to threaten him when Hernandez followed him inside
the house. Hernandez’s testimony, however, was inconsistent with the testimony of the other
witnesses. First, the other witnesses testified Jesus kept the knife at his side and never threatened
Hernandez or anyone else with the knife. In addition, Jesus testified he dropped the knife on his
way inside the house and was not in possession of the knife when Hernandez shot him.
Furthermore, the jury could have disbelieved Hernandez’s testimony regarding his fear that Victor
or Jesus would retrieve an assault rifle. No other testimony or evidence established an assault rifle
was even in the house, and the jury could have believed Hernandez’s use of a gun to shoot Jesus
was not immediately necessary because he could simply have driven away from the scene rather
than following Jesus inside the house. Several witnesses testified Jesus did not pursue Hernandez
when he walked back to the car to retrieve the shotgun. Finally, Hernandez fled the scene after
the shooting. See Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (noting a
“factfinder may draw an inference of guilt from the circumstance of flight”); Valverde, 490 S.W.3d
at 529 (noting jury was entitled to consider defendant’s actions in leaving the scene in evaluating
self-defense claim).
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Having reviewed all of the evidence in the light most favorable to the jury, we hold the
evidence supported the jury’s implicit rejection of Hernandez’s claims of self-defense and defense
of a third person. Hernandez’s second and third issues are overruled. NECESSITY In his final issue, Hernandez contends the evidence is legally insufficient to support the
jury’s implicit rejection of his assertion of the defense of necessity with regard to Jesus’s shooting.
Hernandez relies on the same evidence in support of his defense of necessity as he relies on in
support of his self-defense and defense of a third person arguments. First, he contends the evidence
established he did not leave after retrieving the shotgun because he believed Victor and/or Jesus
“would assassinate him using an automatic weapon before he could drive out of the range of such
a weapon.” Next, he contends the evidence showed his approaching the house “was necessary to
assure that [Jesus] would not get an assault weapon and blow him away.” Finally, he contends the
evidence established that he shot Jesus because Jesus was “brandishing an apparent knife at him”
and he “reasonably feared that [Jesus] would stab him to death.”
In order to prove the defense of necessity, the evidence must establish that the defendant
reasonably believed his conduct was “immediately necessary to avoid imminent harm.” TEX.
PENAL CODE ANN. § 9.22. “‘Reasonable belief’ means a belief that would be held by an ordinary
and prudent person in the same circumstances as the defendant.” Stefanoff v. State, 78 S.W.3d
496, 501 (Tex. App.—Austin 2002, pet. ref’d). “‘Imminent’ has been defined as ready to take
place, near at hand, impending, hanging threateningly over one’s head, menacingly near.” Henley
v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016) (internal quotation omitted). “Thus, imminent
harm is harm that is ready to take place—harm that is coming in the very near future.” Id. Stated
differently, “[h]arm is imminent when there is an emergency situation and it is ‘immediately
necessary’ to avoid that harm.” Pennington v. State, 54 S.W.3d 852, 857 (Tex. App.—Fort Worth
04-18-00217-CR


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2001, pet. ref’d). “In other words, a split-second decision is required without time to consider the
law.” Id. “The justification defense of necessity applies when action is needed ‘immediately’ (i.e.,
now) to avoid ‘imminent’ harm (i.e., harm that is near at hand).” Henley, 493 S.W.3d at 89.
As previously noted, the only evidence that Hernandez believed shooting Jesus was
immediately necessary to avoid imminent harm was Hernandez’s own testimony, and the jury
apparently disbelieved him. The other witnesses testified Jesus did not threaten Hernandez with
the knife or pursue Hernandez when he returned to his car, so nothing prevented Hernandez from
simply driving away. In addition, Jesus testified he dropped the knife when he tripped going inside
the house. Although two knives were located at the scene, Jesus testified he was not holding a
knife when Hernandez shot him. Accordingly, Hernandez’s fourth issue is overruled.

Outcome: The trial court’s judgments are affirmed.

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