Elizondo, Jose Guadalupe Rodriguez, PD-1039-14

Background

Defendant Jose Elizondo (a U.S. Customs officer) got into an initial, outnumbered altercation with bouncers after his wife was allegedly mistreated at a nightclub; he ran ~70 yards to his pickup and got inside.
Witnesses testified the bouncers chased him to the truck, banged on the windows, and forced him out; a second confrontation ensued at the vehicle.
During the second confrontation, club owner Fermin Limon, Sr. pointed a gun at Elizondo and refused to lower it; Elizondo fired, killing Limon, Sr.
At trial the jury convicted Elizondo of murder and rejected his self-defense claim; he was sentenced to 25 years.
On appeal (Thirteenth Court of Appeals) the court affirmed, finding (inter alia) that Elizondo’s conduct/words while fleeing (“Van a ver” / “you will see”) could constitute provocation and that he did not abandon the encounter; the court also rejected several jury-charge challenges.
Elizondo petitioned the Court of Criminal Appeals raising three principal grounds: (1) whether his flight to the truck was legal abandonment of the difficulty; (2) whether the provocation analysis (Smith) was properly applied to the post‑flight words and intent; and (3) whether multiple jury‑charge errors (omissions and an erroneous provocation instruction) require reversal.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Elizondo)	Held (Court of Appeals)
Was running ~70 yards to his truck an abandonment of the difficulty (so self‑defense survives)?	The flight plus statements and admission of running to his truck for his gun show he did not abandon but sought to continue the fight.	Running that far and getting inside the truck was a clear abandonment; pursuit by the bouncers transformed the encounter into a new attack.	Court of Appeals: A reasonable jury could find Elizondo did not abandon; provocation could still bar self‑defense.
Did Elizondo’s words while fleeing (“Van a ver”) satisfy the Smith provocation elements (act/words that actually provoke, reasonably calculated to provoke, done with intent to pretext harm)?	The words and conduct while running were evidence of provocation and of intent to obtain a weapon and continue the attack.	The words were spoken after the pursuit had begun, so they could not have provoked the chase/attack; no evidence he intended a pretext to kill.	Court of Appeals: Found some evidence of provocation (relied on witness testimony and Elizondo’s statement about running to his gun) and submitted provocation to the jury.
Did the trial court err by omitting instructions (threats-as-justifiable-force §9.04, multiple‑assailants) and by giving a confusing/erroneous provocation instruction that lessened the State’s burden?	Omitted instructions were not requested; remaining charge was adequate; any errors were harmless.	Once the court charged self‑defense it had a duty to include correct, complete instructions (including multiple assailant and threat rules); the provocation paragraph was misleading and effectively directed a murder verdict if provocation found.	Court of Appeals: Held some omissions were waived (no request); found no reversible harm for omitted or erroneous instructions and affirmed.
Was harm from charge errors egregious (warranting reversal without objection)?	The charge errors did not cause egregious harm given other instructions and the evidence.	The charge was a ‘‘garbled mess’’ that deprived Elizondo of his sole defense; proper Almanza/egregious‑harm analysis requires reversal.	Court of Appeals: Applied harmless‑error framework and found no reversible (egregious) harm.

Key Cases Cited

Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998) (provocation doctrine: three‑part test for when provocation forfeits self‑defense)
Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) (clarifies charge‑error harm review; jury instructions must be understandable and the court bears burden to analyze harm)
Barrera v. State, 982 S.W.2d 415 (Tex. Crim. App. 1998) (trial court must correctly state law when charging on a defensive issue; omitted application paragraph reviewable for egregious harm)
Vega v. State, 394 S.W.3d 514 (Tex. Crim. App. 2013) (if judge charges on a defensive issue, errors are charge errors subject to Almanza review regardless of how charge came before the court)
Ervin v. State, 367 S.W.2d 680 (Tex. Crim. App. 1963) (abandonment requires communication of intent to abandon; mere change of position is not abandonment)
Carlile v. State, 255 S.W. 990 (Tex. Crim. App. 1923) (analysis of abandonment vs. continuous difficulty when multiple encounters occur)
Cornet v. State, 417 S.W.3d 446 (Tex. Crim. App. 2013) (insufficiency review cannot substitute for charge‑error harm analysis)
Brown v. State, 651 S.W.2d 782 (Tex. Crim. App. 1983) (trial court must distinctly set forth law applicable to the case; incomplete charges can deprive defendant of defense)