Elizondo, Jose Guadalupe Rodriguez
PD-1039-14
| Tex. App. | May 6, 2015Background
- Defendant Jose Guadalupe Rodriguez Elizondo was involved in an altercation with security/bouncers after a nightclub fight; he struck Fermin Limon and later shot and killed Limon.
- After the initial fight, Elizondo ran about 70 yards to his truck, yelled threats (“van a ver”/“you will see”), and retrieved a firearm from the vehicle.
- Elizondo claimed he had abandoned the initial confrontation and ran only to escape, forgetting the gun was in his truck; witnesses contradicted parts of his account.
- He was convicted of murder; the Thirteenth Court of Appeals affirmed, concluding there was no clear abandonment of the initial provocation and rejecting several charge-based claims.
- The State’s brief urges the Court of Criminal Appeals to affirm: it argues there was a continuation, not a second provocation; provocation instructions were supported by evidence; several omitted defensive instructions were waived for failure to request; and any charge errors were not egregiously harmful.
Issues
| Issue | Plaintiff's Argument (Elizondo) | Defendant's Argument (State) | Held (Court of Appeals / State urges affirmance) |
|---|---|---|---|
| Whether Elizondo clearly abandoned the initial altercation (so a second provocation arose) | Running to his truck showed abandonment as a matter of law; no second provocation | No clear abandonment: words and conduct (threats, running toward weapon, retrieving gun) show continuation of initial provocation; abandonment is a fact for the jury | Court of Appeals: no clear abandonment; treated events as continuation, so no second provocation |
| Whether provocation instruction should have been given | Alleged lack of provocation at the later encounter (if abandonment occurred) meant instruction was improper | Evidence of initial striking, heated dispute, threats, and retrieving a firearm provided a basis for provocation instruction; abandonment is factual | Provocation instruction was supported by evidence; proper to submit to jury |
| Whether trial court erred by omitting certain defensive instructions (§ 9.04 threats; multiple assailants; full § 9.32 presumptions) | Omitted instructions deprived Elizondo of correct law and prejudiced him | These defensive instructions were not requested at trial and thus waived under Posey; where requested elsewhere, similar omissions have been found harmless | Court of Appeals: omission of requested-form instructions waived when not requested; no reversible error shown under Almanza/egregious-harm standard |
| Whether provocation and presumptions charge errors were harmful enough to require reversal | The provocation wording and omitted presumptions misdirected jury and undermined self-defense | Any wording error was harmless or did not cause egregious harm; a jury finding against self-defense merely reflects admission of the act and is consistent with verdict; evidence did not support the specific presumptions | Court of Appeals: acknowledged some charge imprecision but held errors were not egregiously harmful and did not warrant reversal |
Key Cases Cited
- Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998) (provocation instruction elements and standards for submission)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (harm standard for unobjected-to jury charge errors)
- Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998) (defensive instructions must be requested or are waived)
- Barrera v. State, 982 S.W.2d 415 (Tex. Crim. App. 1998) (trial court’s duty when giving charges sua sponte; related charge-duty principles)
- Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) (principles on provocation and burden of proof)