Marlon Brandon Valdez v. the State of Texas ( 2024 )

Affirmed and Memorandum Opinion filed February 1, 2024.
In The
Fourteenth Court of Appeals
NO. 14-22-00555-CR
MARLON BRANDON VALDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1622557
MEMORANDUM OPINION
Appellant Marlon Brandon Valdez appeals his capital murder conviction,
arguing the trial court reversibly erred by refusing his request for a jury instruction
on self-defense and defense of third person. We affirm.
BACKGROUND
In February 2019, Appellant’s classmate Liliana gave him a ride home. This
caused an argument between Liliana’s boyfriend, Isaac, and Appellant. Following
the argument, Isaac and Appellant set up a fistfight; Appellant told Isaac to meet
him at a “settling point” in the Eastbrook neighborhood. Appellant arrived with
“his people” and Isaac arrived with “his people.” However, Appellant was
surprised when his friend, Josue, and Josue’s brothers also came to the fistfight.
Appellant and Isaac started fighting, but Appellant slipped and fell. While he was
on the ground, Josue and his brothers started kicking and stomping on Appellant.
Appellant sustained injuries to the head. He was surprised that Josue stomped on
him; he felt betrayed and hurt because he thought he and Josue were friends.
About thirty minutes after the fight, Josue posted a video on social media
and also sent it to Appellant. In the video, Josue and others were holding guns and
stated “you are lucky we fought you, next time we’ll smoke you.” Shortly
thereafter, Appellant called his friend Marcos and asked him if “he knew
someone.” Appellant believed that “when sh** like this happens, you need [to
recruit] the meanest, baddest people because you may go down.” Marcos told
Appellant, “yeah, my cousin does it. . . . He is down.” Thereafter, Appellant and
Josue decided to “finish this” and Appellant suggested they “meet again at the
same spot” in Eastbrook. They agreed to meet a couple of days after the first fight
on February 21, 2019.
Appellant arrived at the meeting place with a getaway driver. Appellant was
on the phone with Josue, telling Josue where to meet in a cul-de-sac. Per
Appellant’s directions, Josue, his two brothers Maximo and Julio, and his
girlfriend arrived in one car at the agreed location to continue the fistfight. In
another vehicle, Isaac and two friends arrived as well. As soon as Josue and
Maximo exited the car, they were shot numerous times by a shooter who had been
waiting on the roof of one of the houses. The shooter shot at both vehicles’
passengers over 30 times. Josue and Maximo died from gunshot wounds. While
2
trying to save Josue and Maximo, Julio and Josue’s girlfriend sustained non-fatal
gunshot wounds.
Appellant denied being the shooter on the roof and claimed that Marcos’
cousin was the shooter. Appellant claimed he only set up the plot and was hiding
behind a fence and waiting for Marcos to bring him the rifle for safekeeping after
Marcos was done shooting. Appellant alleged he only meant to scare Josue but
that Marcos’ cousin shot Josue and his brother. However, Appellant told his friend
after the shooting that he was the one who shot and killed Josue and Maximo.
Appellant was charged with capital murder. A jury found Appellant guilty
as charged, and the trial court assessed his punishment at life imprisonment. He
filed a timely notice of appeal.
ANALYSIS
Appellant presents two issues on appeal, arguing that he suffered some harm
because the trial court erroneously refused to include an instruction on self-defense
and defense of third person in the jury charge.
I. Self-Defense Instruction
In his first issue, Appellant contends that he “suffered some harm by the trial
court’s refusal to include a self-defense instruction in the jury charge.” In a
footnote, Appellant claims he preserved his complaint for review. The State
counters that Appellant failed to preserve his argument for appellate review
because he “did not articulate to the trial court that he wished to have a self-
defense instruction in the jury charge.” Based on the record before us, we agree
with the State.
A. Preservation
The court of criminal appeals reaffirmed in Williams that a defendant must
3
preserve in the trial court a complaint regarding submission of a defensive issue in
the jury charge to present the complaint for appellate review. See Williams v.
State, 662 S.W.3d 452, 461 (Tex. Crim. App. 2021). With respect to jury
instructions, the trial court has an absolute sua sponte duty to prepare a jury charge
that accurately sets out “the law applicable to the specific offense charged.”
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); see Williams, 662
S.W.3d at 461. But it does not inevitably follow that the trial court has a similar
sua sponte duty to instruct the jury on all potential defensive issues. Delgado, 235
S.W.3d at 249. Because requests for defensive instructions frequently depend
upon trial strategy and tactics, they are not considered “the law applicable to the
case.” Williams, 662 S.W.3d at 461. Thus, unrequested defensive instructions are
still subject to ordinary rules of procedural default. Id.; Posey v. State, 966 S.W.2d
57, 61-62 (Tex. Crim. App. 1998) (en banc). “A defendant cannot complain for
the first time on appeal about the lack of a defensive instruction absent
preservation of the error.” Williams, 662 S.W.3d at 461.
The court of criminal appeals affirmed that preservation must follow Texas
Rule of Appellate Procedure 33.1, which provides that, as a prerequisite to
presenting a complaint for appellate review, the record must show that: (1) the
complaint was made to the trial court by a timely request, objection, or motion that
stated the grounds for the ruling that the complaining party sought from the trial
court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context; and (2) the trial court
either ruled on the request, objection, or motion, either expressly or implicitly or,
over a further complaint, refused to do so. Id. at 460 (citing Tex. R. App. P.
33.1(a)). “‘The purpose for requiring a timely, specific objection is twofold: (1) it
informs the judge of the basis of the objection and affords him an opportunity to
4
rule on it[;] and (2) it affords opposing counsel an opportunity to respond to the
complaint.’” Id. (quoting Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App.
2015)).
B. Application
During the charge conference, Appellant’s trial counsel stated: “the defense
would have two requests for the Court.” For his first request, trial counsel stated:
“We would ask the Court to include a defense of third party paragraph in the
charge.” The State objected and argued against the inclusion. Appellant’s trial
counsel responded to the State and concluded his argument, stating “that’s why the
defense would be asking for a defense of third party.” The State continued to
argue against the inclusion of the requested instruction. In response to the State,
Appellant’s counsel did not present further argument and only stated: “We would
continue to ask for the charge, Your Honor.” The court denied trial counsel’s
request, stating: “The request for a defense of third party instruction is denied at
this time.” Appellant’s counsel then turned to his second request, asking the trial
court for a lesser-included offense instruction in the jury charge. After the parties
presented their arguments relating to Appellant’s second request, the trial court
denied the request for a lesser-included offense instruction and took a recess.
After the recess, the trial court asked the State and Appellant’s counsel if
there were any further objections to the proposed charge. The State did not have
any other “requests or changes” and Appellant’s counsel stated: “Other than my
previous request for a self-defense instruction and an instruction for a lesser
offense, Your Honor, there are no additional objections.” The court responded:
“Okay. Thank you very much. Those previous objections were denied and
therefore preserved.”
Appellant claims that his last statement to the trial court preserved his
5
complaint because his “counsel referred to his request for an instruction on self-
defense.” But trial counsel did not and could not have referred to a request for a
self-defense instruction because he previously never made such a request. Instead,
he referred to his “previous request”, and all his previous requests were for a
defense of third person instruction. It is clear that when read in context,
Appellant’s trial counsel merely misspoke when he referred to “his previous
request for a self-defense instruction” because every previous request clearly was
for only a defense of third person instruction. We conclude Appellant did not
request that the trial court include an instruction on self-defense in the jury charge
and he, therefore, failed to preserve his complaint for appellate review.
Accordingly, we overrule Appellant’s first issue.
II. Defense of Third Person Instruction
In his second issue, Appellant contends that he “suffered some harm by the
trial court’s refusal to include a defense of third person instruction in the jury
charge.”
A. Preservation
Relying on the court of criminal appeals opinion in Williams, the State
contends that Appellant failed to preserve his complaint for appellate review
because he “did not point out to the trial court the factual basis for why he was
entitled to” a defense of third person instruction. See Williams, 662 S.W.3d at 461.
We disagree.
We find the State’s reliance on Williams is misplaced because the court of
criminal appeals did not state that a defendant must “point out to the trial court the
factual basis for why he was entitled to” a defensive instruction. See id. The court
of criminal appeals stated: “And specific to requests for lesser-included offenses,
6
the defendant must point to evidence in the record that raises the lesser-included
offense. . . . Thus, if a defendant requests a particular lesser-included instruction
and he sets out, on the record, the specific evidence that supports a rational basis
for rejecting the greater offense but supporting the lesser offense, the trial judge
errs if he refuses to instruct the jury on that lesser offense.” Id. (emphasis added).
The court made no such pronouncements with regard to defensive instructions.
Here, Appellant’s counsel requested a defense of third person instruction several
times; the trial court denied his requests. Therefore, we conclude Appellant
preserved his complaint for review.
B. Error
We review a complaint of charge error in two steps. See Cortez v. State, 469
S.W.3d 593, 598 (Tex. Crim. App. 2015); Baban v. State, 672 S.W.3d 655, 659
(Tex. App.—Houston [14th Dist.] 2023, pet. ref’d). First, we examine whether
error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App.
2005) (en banc); Baban, 672 S.W.3d at 659. Second, we review the record to
determine whether sufficient harm was caused by the error to require reversal of
the conviction. Ngo, 175 S.W.3d at 743-44; Baban, 672 S.W.3d at 659.
When deciding whether the trial court committed error, we begin with the
rule that “trial courts are required to instruct the jury on ‘the law applicable to the
case.’” Williams, 662 S.W.3d at 460 (quoting Delgado, 235 S.W.3d at 249).
“Regardless of the strength or credibility of the evidence, a defendant is entitled to
an instruction on any defensive issue that is raised by the evidence.” Jordan v.
State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020). “A defensive issue is raised
by the evidence if there is sufficient evidence to support a rational jury finding as
to each element of the defense.” Id. In reviewing whether the trial court erred in
refusing to submit a requested defensive instruction, we examine the evidence
7
offered in support of the defensive issue in the light most favorable to the defense.
Id. A trial court errs to refuse a defense of third person instruction if there is some
evidence, viewed in the light most favorable to the defendant, that will support its
elements. Id. A defendant’s testimony alone may be sufficient to warrant a
requested defensive instruction. Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim.
App. 2015).
Texas Penal Code section 9.33 provides that:
A person is justified in using force or deadly force against another to
protect a third person if
(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.
Tex. Penal Code Ann. § 9.33. “So long as the accused reasonably believes that the
third person would be justified in using deadly force to protect himself, the accused
may step in and exercise deadly force on behalf of that person.” Hughes v. State,
719 S.W.2d 560, 564 (Tex. Crim. App. 1986) (en banc), superseded by statute on
other grounds as stated in Morales v. State, 357 S.W.3d 1 (Tex. Crim. App. 2011).
Moreover, the defendant “must reasonably believe that his intervention is
‘immediately necessary to protect the third person.’” See id. (emphasis in
original); see also Tex. Penal Code Ann. § 9.33. When there is no evidence that
the victim was making an attack or threatening an immediate attack upon a third
party, the issue of defense of third person is not raised. See Constancio v. State,
643 S.W.2d 153, 156 (Tex. App.—Austin 1982, no pet.); see also Brooks v. State,
548 S.W.2d 680, 684 (Tex. Crim. App. 1977), disapproved of on other grounds by
8
Lugo v. State, 667 S.W.2d 144 (Tex. Crim. App. 1984) (en banc).
During his police interview with Detective Brown, who was assigned to
investigate the homicide of Josue and Maximo, Appellant stated he had agreed to
meet with Josue after the first fistfight to “finish this” and had suggested they
“meet again at the same spot” in Eastbrook. Appellant told Detective Brown that
he arrived at the meeting place and talked to Josue on the phone in order to set up
Josue so the shooter, who was waiting on the roof, could get a clear shot. When
Josue and Maximo exited the car at the location Appellant had instructed, the
shooter immediately shot them numerous times. There is no evidence that Josue or
Maximo ever threatened Appellant’s family, let alone threatened the family
immediately before they were shot and killed.
Nonetheless, Appellant claims that he was entitled to a defense of third
person instruction because he “expressed concern that the men who attacked him
would come after his mother and sister.” As support for his assertion, Appellant
points to Detective Brown’s testimony, who stated that during the investigation,
Appellant’s friend’s father told Detective Brown “that [Appellant] told his son that
he killed [Josue and Maximo] because he was worried that they would come after
him, after his sister and mother.”
However, this testimony is no evidence that Appellant had a reasonable
belief that use of deadly force against Josue and Maximo was immediately
necessary to protect his mother and sister because this testimony does not establish
that the victims attacked or made any threats to harm Appellant’s mother and sister
so as to need immediate protection. See Brooks, 548 S.W.2d at 684 (finding that
because there is no evidence that the deceased was making an attack or threatening
an immediate attack upon a third person, the evidence could not have led the
defendant to reasonably believe that his intervention was immediately necessary to
9
protect the third person); Cooper v. State, 910 S.W.2d 605, 606 (Tex. App.—Tyler
1995, no pet.) (same); Constancio, 643 S.W.2d at 156 (same); Pena v. State, 635
S.W.2d 912, 914 (Tex. App.—Eastland 1982, pet. ref’d) (same).
Appellant also contends that he was entitled to the requested defensive
instruction because: “While appellant’s mother and sister were not on the scene,
Josue made threats against appellant and was poised to carry out those threats.
Josue and appellant had previously worked together and, at one point, were friends.
It is reasonable to believe that Josue knew appellant’s family and that they lived
less than three minutes away from the meeting spot.” We reject Appellant’s
contention because, again, there is no evidence that the victims attacked or made
any threats against Appellant’s family at any time, even if Appellant was
threatened. The evidence must show that the victims attacked or made threats
against the third person in order to raise the issue of defense of third person. See
Constancio, 643 S.W.2d at 156; see also Brooks, 548 S.W.2d at 684. We also note
Appellant fails to cite any evidence, and we have not found any, that supports his
claim that Josue knew where Appellant’s family lived or that “they lived less than
three minutes away from the meeting spot.”
There is no evidence that either Josue or Maximo attacked or threatened an
immediate attack with deadly force upon Appellant’s family; therefore, the
evidence could not have led Appellant to reasonably believe that deadly force was
immediately necessary to protect his mother and sister. Viewed in the light most
favorable to Appellant, we hold the evidence in this case does not raise the issue
that Appellant reasonably believed deadly force was immediately necessary to
protect a third person. Because the evidence did not raise the issue of defense of
third person, Appellant was not entitled to the defensive instruction, and the trial
court did not err in refusing to submit the requested instruction in the jury charge.
10
Accordingly, we overrule Appellant’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
11