Elizondo, Jose Guadalupe Rodriguez
2016 Tex. Crim. App. LEXIS 70
| Tex. Crim. App. | 2016Background
- Off-duty CBP agent Jose Guadalupe Rodriguez Elizondo was involved in an altercation outside Punto 3 nightclub; after running to his parked truck and struggling with others, Elizondo shot and killed owner Fermín Limón Sr. and was convicted of murder.
- Conflicting eyewitness accounts: some testified Elizondo swung/used his gun as a bludgeon and shouted while running; others described Limón Sr. approaching with a gun and Elizondo announcing he was U.S. Customs before firing.
- Physical evidence tied the fatal bullets to Elizondo’s .40 caliber handgun; multiple 9mm casings also found at the scene.
- At trial the jury received a self-defense instruction that included a provocation ("provoking the difficulty") limitation; Elizondo objected to submitting provocation to the jury.
- The Thirteenth Court of Appeals affirmed; the Texas Court of Criminal Appeals granted review to determine whether (1) the provocation instruction was properly submitted under Smith v. State’s three-element test, and (2) any jury-charge error was harmful.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Elizondo) | Held |
|---|---|---|---|
| Whether evidence supported submitting a provoking-the-difficulty instruction | There was sufficient evidence (words, blows, Elizondo running to truck shouting "Van a ver") that Elizondo provoked and continued the fight to retrieve a gun | Elizondo argued evidence did not support the three Smith elements, especially intent to provoke as a pretext to kill; running to truck was abandonment, not provocation | Reversed: appellate court erred — the record lacked sufficient evidence of intent (third Smith element) to justify a provocation instruction |
| Whether the provocation instruction as given was properly worded and non-confusing | Instruction tracked provocation doctrine sufficiently; any wording issues were harmless | Elizondo argued the instruction was confusing, shifted burden, and should not have been given at all | Court held the instruction was erroneous and misleading; its wording and placement increased risk of harm |
| Whether omission of additional statutory presumption language (Penal Code §9.32) harmed Elizondo | State: omissions were harmless given provocation theory | Elizondo: omitted presumptions (vehicle/habitation use) would aid his self-defense claim | Court held omissions could have mattered because the provocation limitation (which should not have been given) changed the charge dynamic; weighed toward harm |
| Whether Elizondo suffered "some harm" from the erroneous provocation instruction | State argued no harm—the jury repeatedly was told State bears burden | Elizondo argued the erroneous instruction undermined his sole defensive theory and was confusing | Court held Elizondo suffered "some harm" and reversed for a new trial |
Key Cases Cited
- Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998) (establishes three-element test for provocation: act/words provoked attack; reasonably calculated to provoke; done with intent to create pretext to harm)
- Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) (reversed where provocation instruction was incomprehensible and likely harmful)
- Bennett v. State, 726 S.W.2d 32 (Tex. Crim. App. 1986) (insufficient evidence of provocation where defendant did not orchestrate attack on a stranger)
- Norwood v. State, 120 S.W.2d 806 (Tex. Crim. App. 1938) (historic articulation that intent to provoke may be inferred from defendant’s words/acts and is a fact question)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harm analysis for jury-charge error; "some harm" standard when error preserved)