Jonathan Andrew Rosario v. State, 01-14-00561-CR

Jonathan Andrew Rosario v. State

01-14-00561-CR

| Tex. App. | Apr 29, 2015

Check Treatment

Case Information

*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/29/2015 5:42:19 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-14-00561-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 4/29/2015 5:42:19 PM CHRISTOPHER PRINE NO. 01-14-00561-CR CLERK IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS

JONATHAN ROSARIO,

Appellant

STATE OF TEXAS,

Appellee Appealed From The

186th Judicial District Court Of Bexar County, Texas

BRIEF FOR THE APPELLANT GROSS & ESPARZA, P.L.L.C.

MICHAEL C. GROSS State Bar No. 08534480 106 South St. Mary’s Street, Suite 260 San Antonio, Texas 78205 Lawofcmg@gmail.com (210) 354-1919

(210) 354-1920 Fax Attorney for the Appellant, JONATHAN ROSARIO ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL Mr. Jonathan Rosario, Appellant

Michael C. Gross, Attorney for the Appellant

106 South St. Mary’s Street, Suite 260

San Antonio, Texas 78205

Alex Scharff, Attorney for the Appellant

222 East Main Plaza

San Antonio, Texas 78205

Loraine Efron, Attorney for the Appellant

1001C San Pedro Avenue

San Antonio, Texas 78216

Enrico Valdez, Assistant District Attorney

101 West Nueva

San Antonio, Texas 78205

Tanner Neidhardt, Assistant District Attorney

101 West Nueva

San Antonio, Texas 78205

Ryan Groomer, Assistant District Attorney

101 West Nueva

San Antonio, Texas 78205

TABLE OF CONTENTS

PAGE IDENTITY OF PARTIES AND COUN. .S.E.L. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 2

POINTS OF ERROR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

POINT OF ERROR ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

THE JURY’S REJECTION OF THE APPELLANT’S CLAIM OF SELF-DEFENSE IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.

ARGUMENT AND AUTHORITIES IN SUPPORT OF POINT OF ERROR ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 POINT OF ERROR TWO .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE JURY’S REJECTION OF THE CLAIM THAT THE MURDER WAS COMMITTED UNDER THE IMMEDIATE INFLUENCE OF SUDDEN PASSION ARISING FROM AN ADEQUATE CAUSE.

iii *4 ARGUMENT AND AUTHORITIES IN SUPPORT OF POINT OF ERROR TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 POINT OF ERROR THREE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

T H E E V I D E N C E W A S F A C T U A L L Y INSUFFICIENT TO SUPPORT THE JURY’S REJECTION OF THE CLAIM THAT THE MURDER WAS COMMITTED UNDER THE IMMEDIATE INFLUENCE OF SUDDEN PASSION ARISING FROM AN ADEQUATE CAUSE.

ARGUMENT AND AUTHORITIES IN SUPPORT OF POINT OF ERROR THREE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TABLE OF AUTHORITIES Allen v. State, 253 S.W.3d 260

(Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Brooks v. State, 323 S.W.3d 893

(Tex. Crim. App. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Clayton v. State, 235 S.W.3d 772

(Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Cleveland v. State, 177 S.W.3d 374

(Tex. App. - Houston [1st Dist.] 2005, pet. ref’d). . . . . . . . . . . . . . . . . 17, 20 Hartsfield v. State, 305 S.W.3d 859

(Tex. App. - Texarkana 2010, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 iv

Hooper v. State, 214 S.W.3d 9

(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Malik v. State, 953 S.W.2d 234

(Tex. Crim. App. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Meraz v. State, 785 S.W.2d 146

(Tex. Crim. App. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Morales v. State, 357 S.W.3d 1

(Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Saxton v. State, 804 S.W.2d 910

(Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Smith v. State, 355 S.W.3d 138

(Tex. App. - Houston [1st Dist.] 2011, pet. ref’d) . . . . . . . . . . . . . . 11, 16, 17 Watson v. State, 204 S.W.3d 404

(Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Zuliani v. State, 97 S.W.3d 589

(Tex. Crim. App. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 Zuniga v. State, 144 S.W.3d 477

(Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Constitutions And Statutes

Tex. Penal Code Section 9.32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Tex. Penal Code Section 9.33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. P. 39.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

NO. 01-14-00561-CR IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS

JONATHAN ROSARIO,

Appellant

STATE OF TEXAS,

Appellee Appealed From The

186th Judicial District Court Of Bexar County, Texas

BRIEF FOR THE APPELLANT TO THE HONORABLE COURT OF APPEALS:

Jonathan Rosario, the Appellant in Cause Number 2013-CR-5658 in the 186th Judicial District Court of Bexar County, Texas and the Appellant in this cause,

pursuant to Rule 38.1 of the Texas Rules of Appellate Procedure, submits this brief

to this Honorable Court for the purpose of appealing the judgment and sentence in

this cause that were adjudged on May 23, 2014. The parties will be referred to as “the

Appellant” and “the State.”

STATEMENT OF THE CASE The Appellant was indicted in Cause Number 2013-CR-5658 with Murder occurring on or about December 2, 2012. (T - 7, 95). ^[1] The jury trial began with jury

selection on May 14, 2014 before the Honorable Maria Herr, presiding judge. (R -

v.2 - 1). On May 22, 2014, the jury found the Appellant guilty, contrary to his plea.

(R - v.8 - 1, 119). On May 23, 2014, the jury sentenced the Appellant to

imprisonment for forty years in the Texas Department of Criminal Justice,

Institutional Division and no fine. (T - 95; R - v.9 - 1, 163). A motion for new trial

was timely filed on June 16, 2014 and was denied by operation of law. Notice of

appeal was timely filed on June 16, 2014. (T - 102).

STATEMENT REGARDING ORAL ARGUMENT Counsel for the Appellant respectfully requests leave, pursuant to Rule 39.1 of the Texas Rules of Appellant Procedure, to make oral argument to this Honorable

Court. Counsel believes that oral argument is necessary for a full and complete

understanding of the facts and constitutional issues presented in this case. This

request is made so that justice may be done.

*8 POINTS OF ERROR

POINT OF ERROR ONE

THE JURY’S REJECTION OF THE APPELLANT’S CLAIM OF SELF-DEFENSE IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.

POINT OF ERROR TWO

THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE JURY’S REJECTION OF THE CLAIM THAT THE MURDER WAS COMMITTED UNDER THE IMMEDIATE INFLUENCE OF SUDDEN PASSION ARISING FROM AN ADEQUATE CAUSE.

POINT OF ERROR THREE

THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE JURY’S REJECTION OF THE CLAIM THAT THE MURDER WAS COMMITTED UNDER THE IMMEDIATE INFLUENCE OF SUDDEN PASSION ARISING FROM AN ADEQUATE CAUSE.

STATEMENT OF FACTS

Romello “Mello” James knew Michael Huizar had been selling drugs, and Mello informed the parents of Huizar about this selling of drugs. (R - v.3 - 130-131).

As a result, Huizar and his friend Robert Aldana were very angry with Mello. (R - v.4

- 190; R - v.6 - 252). About one week prior to December 2, 2012, Aldana assaulted

Mello since Mello had informed on Huizar. (R - v.3 - 68, 144). Huizar used his cell

phone to videotape this fight. (R - v.3 - 132, 138, 142; R - v.10 - Defense Exhibit 2).

On December 2, 2012, both Aldana and Mello wanted a rematch to fight again with each other. (R - v.3 - 69, 71, 138). On this date, Huizar was seventeen years old,

Aldana was sixteen years old, Jacob St. Clair was eighteen years old, and John Valdez

was about twenty years old. (R - v.3 - 135, 148). Just prior to the rematch, Huizar and

Aldana had been smoking marijuana with John Valdez and Jacob St. Clair. (R - v.3 -

124-126). Huizar was on probation at the time. Id. Aldana received a text message

from Mello about scheduling the rematch for that night. (R - v.3 - 127, 136). Huizar

received a call from the complainant, Kevin Hill, that several people were at the site

where the rematch was to take place. (R - v.4 - 9). Hill was in an agitated mood. (R -

v.6 - 176-177). After the call from Hill, Huizar sent a text message to St. Clair that

stated, “Get ready, we fittin’ to fuck up Romello.” (R - v.4 - 10, 12). Mello thought

is was possible that Huizar and Aldana would bring weapons to the fight. (R - v.4 -

69).

Huizar drove five people including Aldana, St. Clair, and Valdez to the fight and, in his car, there were knives and brass knuckles. (R - v.3 - 71-75, 122-123, 144;

R - v.4 - 99). At the site of the rematch, Hill joined Huizar’s “crew” against the

people who were with Mello. (R - v.4 - 13). Huizar had more people with him than

Mello had with him. (R - v.5 - 44). Aldana and Huizar and everyone else in their

crew, except Hill, had weapons. (R - v.6 - 151). Aldana and Huizar brought people

with them to the rematch including Jacob St. Clair who had a knife with him by his

side, and John Valdez who had two knives on his belt and a taser. (R - v.3 - 122-123;

R - v.6 - 28-29, 75; R - v.6 - 220). Prior to the rematch, Mello called people and went

on Facebook and asked his friends (including a female named Shay Godley) to come

help him during the rematch. (R - v.4 - 70, 102-103). Mello was afraid that if he beat

Aldana in the fight that other people would begin to assault Mello. (R - v.4 - 103).

Five people, including the Appellant (Jonathan Rosario) and Shay, accompanied

Mello to the rematch. (R - v.4 - 71-74; R - v.5 - 31). In the car was a bat and a

screwdriver. (R - v.5 - 33).

The rematch resulted in many people fighting each other, and many of the combatants were carrying knives, a taser, and the threat of a gun. Jonathan brought

a paring knife with him to the rematch. (R - v.5 - 34). Jonathan did not appear as if

he was ready to use the knife. (R - v.6 - 132). Prior to the rematch fight, Emily from

Huizar’s crew threatened Mello’s group. (R - v.5 - 82-83). Emily was in a bad mood.

(R - v.6 - 177-178). Emily made a statement that was threatening to Mello’s group

that she had “a 40 Glock” nearbyat her house and would use it. (R - v.6 - 178-180; R -

v.7 - 34). This terrified Jonathan since he is afraid of guns after his friend was shot

and killed when Jonathan was fourteen years old. (R - v.7 - 176-177). Hill told one

of the people from Mello’s group that, “I don’t give a fuck about you. Get the fuck

away from me.” (R - v.7 - 29-30). It was clear that everyone in Huizar’s crew wanted

to fight Mellos’s group. (R - v.6 - 187). Hill and Emily had some dogs with them that

were threatening to a person from Mello’s group. (R - v.6 - 135). If there was

fighting, there was a worry that the dogs might attack someone. (R - v.6 - 135). Emily

and Hill were drinking alcohol at this time. (R - v.7 - 31-32).

At the rematch, Huizar struck Mello in the head, Mello fell to the ground, and Huizar then kicked Mello in the head at least seven times while Mello was on the

ground causing Mello’s head to bounce off the asphalt. (R - v.3 - 90-91, 146-148; R -

v.4 - 115, 159-160, 204; R - v.5 - 47, 73, 75; R - v.7 - 42-43). Shay was getting bad

vibes at this point of the fighting. (R - v.5 - 74). While Huizar was kicking Mello, Hill

and St. Clair stepped in and Hill fought with two people. (R - v.4 - 19). St. Clair

pulled his knife out at this point since he thought he would be attacked by Mello’s

group. (R - v.6 - 228). While Huizar was kicking Mello, Valdez brandished his taser

to keep the people with Mello from stopping Huizar. (R - v.3 - 147; R - v.4 - 208).

The taser was inches from Shay’s eyes, and Shay could hear the taser. (R - v.5 - 48,

83). Shay felt very threatened at this point. (R - v.5 - 83). At this point, Hill began

fighting with another person, and then another person from Mello’s group confronted

Hill and Hill then assaulted that second person too and knocked out one person. (R -

v.4 - 208-210, 214; R - v.6 - 30-31, 104). Mello was limp on the asphalt when Huizar

repeatedly kicked him in the head. (R - v.5 - 76). Mello sustained a swollen eye,

fractured nose, and bleeding face and eye. (R - v.4 - 113-115). Mello stated that his

memory was adversely affected by these injuries to his head. (R - v.4 - 127).

Shay attempted to stop Huizar from continuing to kick Mello in the head. (R - v.4 - 116-117). Shay stated that she thought Mello would be killed if Shay did not

stop the kicking. (R - v.5 - 47, 77). Shay thought she would be killed during this

fighting. (R - v.5 - 85). Emily then assaulted Shay and they began fighting each

other. (R - v.3 - 149-152; R - v.4 - 118; R - v.5 - 48-50, 79-80, 82, 97; R - v.6 - 100).

Everyone “got wound up” when Emily and Shay were fighting, and it turned into “a real big brawl.” (R - v.5 - 83; R - v.6 - 26, 104). Nobody wanted to stop any

of the fighting, and “a bunch of people have weapons” so it was “not a good

situation.” (R - v.6 - 191). A big fight broke out and “everybody just started

swinging” and Huizar’s crew “pulled out more weapons.” (R - v.6 - 192). Jonathan

was terrified when he saw the knives and Taser. (R - v.7 - 179).

Shay was on the ground and Valdez and Jacob and Hill and Aldana and “a lot of other people” in Huizar’s group began hitting and punching Shay in the back of the

head while she was on the ground. (R - v.4 - 117-118; R - v.5 - 84, 97; R - v.6 - 27,

101-102, 106). Valdez had his taser in one hand and was hitting Shay with his other

hand. (R - v.6 - 149, 191). Hill also kicked Shay while Shay was on the ground. (R -

v.5 - 96). Jonathan attempted to help Shay. (R - v.6 - 197). Everyone then began

fighting and it was a very intense and emotional situation. (R - v.4 - 122, 124; R - v.6

- 26). A person from Huizar’s group pointed two knives at a person from Mello’s

group. (R - v.6 - 147, 153).

During the fighting, Jonathan Rosario attempted to stop the complainant, Kevin Hill, from hitting Shay and continuing the fighting. (R - v.6 - 109-110, 112; R - v.7 -

195, 196). Hill struck Jonathan who then fell to the ground. (R - v.6 - 109-110; R -

v.7 - 197-203). Hill (who was nineteen years old) had Jonathan (who was only

seventeen years old) on the asphalt and was beating Jonathan. (R - v.6 - 109-110; R -

v.7 - 48-49, 52, 64, 159). At this time “it was a free for all. Everybody was hitting

everybody.” (R - v.7 - 56). Hill was punching Jonathan in the head and banging his

head on the asphalt street. (R - v.7 - 203). During this assault, Jonathan sustained

wounds to include a head injury, chin injury, lip injury, bruising to the neck and chest,

and an elbow injury. (R - v.5 - 91; R - v.7 - 210-216; R - v.10 - State’s Exhibit 37).

Jonathan suffered a concussion from the beating by Hill, and Hill then began to choke

Jonathan. (R - v.7 - 178, 203, 205). Jonathan was blacking out and thought he was

going to die, so he pushed Hill away from him with his hand and stabbed Kevin with

the paring knife. (R - v.7 - 205). Someone pulled Hill off of Jonathan and the fighting

ended. (R - v.7 - 56).

After the fighting ended, Hill stood up but something was wrong with him. (R - v.6 - 153). When Hill stood, the fighting was already ended. (R - v.6 - 155). Jonathan

was standing by Shay. (R - v.6 - 154). As Mello’s group were walking toward their

car, Huizar’s crew were gathered around Hill. (R - v.6 - 155).

Someone yelled that Hill had been “snuffed” and everyone ran away from the area since Emily was running toward her house where she had her gun, and Mello’s

group including Jonathan feared retaliation. (R - v.7 - 57). Jonathan was very upset

and shaking after the fight with Hill. (R - v.5 - 94). Jonathan was bleeding while he

was in the car and there was a lot of blood coming from Jonathan. (R - v.6 - 200-201).

Everyone in the car with Mello and Jonathan were in shock since the rematch fight

was not a clean fight given how Huizar’s crew attacked Mello’s friends. (R - v.5 -

94). Everything happened in about four or five minutes. (R - v.4 - 124).

SUMMARY OF THE ARGUMENT POINT OF ERROR ONE

A rational jury could not have concluded that the Appellant’s belief that the complainant, Hill, threatened him with deadly force was not objectively reasonable.

A reasonable juror would have concluded that the Appellant, fearing for his life,

stabbed Hill during Hill’s attack on the Appellant. The jury’s decision rejecting the

Appellant’s claim of self-defense was not one a rational juror could make when

presented with the facts of this case. The evidence is insufficient to support the jury’s

rejection of self-defense.

POINT OF ERROR TWO Given the terrifying circumstances for the Appellant, the attack on the Appellant by the complainant, the choking of the Appellant by the complainant, and

given the injuries and damage done to the Appellant by the complainant, the evidence

is legally insufficient to support the jury’s negative finding on the punishment issue

of sudden passion. The Appellant should receive a new punishment hearing.

POINT OF ERROR THREE From all the evidence, a rational jury would have reasonably concluded that the complainant was provoking the Appellant when the stabbing occurred, and, therefore,

the Appellant was acting under the immediate influence of sudden passion arising

from an adequate cause when he stabbed the complainant. After considering all of the

relevant evidence, and deferring to the jury’s determinations regarding the weight and

credibility of the testimony, the judgment is so against the great weight and

preponderance of the evidence so as to be manifestly unjust. Accordingly, this Court

should hold that the evidence is factually insufficient to support the jury’s negative

finding on the punishment issue of sudden passion. The Appellant should receive a

new punishment hearing.

POINT OF ERROR ONE

THE JURY’S REJECTION OF THE APPELLANT’S CLAIM OF SELF-DEFENSE IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.

ARGUMENT AND AUTHORITIES IN SUPPORT OF POINT OF ERROR ONE When a defendant raises the issue of self-defense, he has the burden of producing some evidence to support this defense. See Zuliani v. State, 97 S.W.3d

*16 589, 594 (Tex. Crim. App. 2003). Once a defendant produces some evidence to

support this defense, the State has the burden of persuasion to disprove the defense.

Id. The burden of persuasion does not require the production of evidence, but it does

require that the State persuade the jury beyond a reasonable doubt that the defendant

did not act in self-defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App.

2008); Zuliani, supra, 97 S.W.3d at 594. Self-defense is an issue of fact to be

determined by the jury, and the jury is free to accept or reject any defensive evidence

on this issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). A jury

that returns a verdict of guilty implicitly rejects a theory of self-defense. Zuliani,

supra, 97 S.W.3d at 594; Saxton, supra, 804 S.W.2d at 914.

Because the State carries the burden of persuasion to disprove self-defense beyond a reasonable doubt, an appellate court reviews sufficiency of the evidence

under the standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). Smith v. State, 355 S.W.3d 138, 144-145 (Tex. App. -

Houston [1st Dist.] 2011, pet. ref’d) (applying Jackson standard to jury’s rejection of

self-defense claim). Under the Jackson standard, an appellate court must determine

whether, after viewing all evidence in the light most favorable to the prosecution, any

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

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

*17 (citing Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.

- Texarkana 2010, pet. ref’d). An appellate court examines legal sufficiency under

Brooks while giving deference to the responsibility of the jury “to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007) (citing Jackson, 443 U.S. at 318-319); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). Sufficiency of the evidence is measured by the elements of

the offense as defined by a hypothetically correct jury charge. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “sets

out the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.” Id.

Self-defense justifies the use of deadly force under certain circumstances.

Morales v. State, 357 S.W.3d 1, 7 (Tex. Crim. App. 2011). Section 9.32(a) of the

Texas Penal Code states that the use of deadly force is justified “(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 . . . .” Section 9.33 of the Texas Penal Code states that the use of deadly force

to protect a third person is justified “(1) under the circumstances as the actor

reasonably believes them to be, the actor would be justified under Section 9.31 or

9.32 in using force or deadly force to protect himself against the unlawful force or

unlawful deadly force he reasonably believes to be threatening the third person he

seeks to protect; and (2) the actor reasonably believes that his intervention is

immediately necessary to protect the third person.” Section 9.31 of the Texas Penal

Code justifies the use of force “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.”

Jonathan did not appear as if he was ready to use the knife before the start of the rematch. (R - v.6 - 132). Prior to the rematch fight, Emily from Huizar’s crew

threatened Mello’s group. (R - v.5 - 82-83). Emily was in a bad mood. (R - v.6 - 177-

178). Emily made a statement that was threatening to Mello’s group that she had “a

40 Glock” nearbyat her house and would use it. (R - v.6 - 178-180; R - v.7 - 34). This

terrified Jonathan since he is afraid of guns after his friend was shot and killed when

Jonathan was fourteen years old. (R - v.7 - 176-177). Hill told one of the people from

Mello’s group that, “I don’t give a fuck about you. Get the fuck away from me.” (R -

v.7 - 29-30). It was clear that everyone in Huizar’s crew wanted to fight Mellos’s

group. (R - v.6 - 187).