Fight that left woman shot in head started over bathroom

Case Number: 04-16-00241-CR

Judge: Rebeca C. Martinez

Court:

Plaintiff's Attorney: Jennifer Rossmeier Brown
Nicholas A. LaHood

Defendant's Attorney:

Suzanne M. Kramer

Description: At approximately 1:30 a.m. on January 24, 2014, Waters was at a restaurant and bar located
in a shopping center in north San Antonio. Waters was sitting at the bar visiting with one of the
bartenders, Jennifer Kirk. The bar was not crowded at that time; however, a group of six people,
Debbie and Jaime Arredondo, John and Yvonne Smithwick, Liliana Bergholtz, and Jeff Hoot, were
seated around a bar table blocking one of the aisles. None of them knew Waters. On his way back
to the bar from the restroom, Waters tried to pass through the single aisle that was blocked by the
Arredondo group. Waters made a comment expressing annoyance that his path was blocked, but
then returned to his place at the bar by another route. The group members’ testimony differed as
to the exact comment made by Waters, ranging from “you don’t sit whatever way you want to”
and “I guess you’re going to make me walk around,” to “y’all think you can sit wherever the f**k
y’all want to sit” and “you guys think y’all can just block the whole f**king walkway.” The
members of the group ignored Waters’s comment. Several testified that Waters’s behavior seemed
odd because there were several other paths Waters could have chosen to return to his seat at the
bar. After Waters returned to his place at the bar, John overheard him talking loudly about guns
and combat skills. Debbie noticed Waters looking over at the group as he talked to the bartender.
No member of the Arredondo group said anything to Waters or made any gesture toward him.
At about 2:00 a.m., the Arredondo group got up to leave the bar. Jennifer urged Waters to
wait inside the bar while the group exited because she thought there might be “a problem” between
Waters and the group. Instead, according to John, Waters “race[d] to the door” and walked out in front of the group. John testified that in his opinion Waters was “wanting trouble.” After the group walked outside, John and Yvonne walked away toward their vehicle, while Debbie, Jaime,
and Jeff walked Liliana to her vehicle, which was parked near the entrance. As they were standing
behind Liliana’s vehicle saying good-bye, Waters drove through the parking lot toward them at a
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high rate of speed in a silver Land Rover, passing right in front of Debbie and Jeff. Jeff and Debbie
yelled at Waters to slow down. Debbie admitted using an expletive. Waters stopped his vehicle
and backed up, rolling down the passenger window and making a comment in response. Liliana
testified that Waters asked whether they “have a problem with him,” while Debbie testified that
Waters said, “you just f**ked with the wrong person.” Jeff stated that Waters said, “you don’t
want to f**k with me” to which Jeff replied, “you’re right” because Waters was a “big guy” and
Jeff did not want any trouble. According to Liliana, Jaime replied, “just slow down, dude.”
Instead of driving away, Waters exited his vehicle from the driver’s side. Jeff testified that
Waters reached behind him as he was getting out of the vehicle, and then walked around the back
of the vehicle toward them. Jeff thought that Waters had reached for a weapon, so Jeff said,
“you’re going to shoot us over this?” As he walked toward them, Waters said that he was not
going to shoot anyone, but he was going to “kick their ass.” At that point, a verbal argument began
between Waters, Jeff, and Jaime. Debbie attempted to intervene in the argument and stepped
between Waters and her husband Jaime, yelling at Waters to just get back in his car and leave
because the group did not want any trouble. Nothing was blocking Waters’s vehicle or otherwise
preventing him from leaving the scene. Waters made a reply in which he called Debbie a “bitch.”
Liliana stated that Waters said, “you shut up you little bitch,” while Debbie stated that Waters told
Jaime, “tell your bitch to shut up.” Jeff heard Waters say something to the effect of “get this bitch
away from me.” Jennifer stated she heard Waters say to Jaime, “if you want to fight, get your
bitch out of the way.” John testified that Waters told Jaime, “get your bitch before I knock her out
too.”
At that point, the confrontation escalated into a physical altercation. Liliana and John
testified that Waters swung a punch at Jaime, but instead hit Debbie in the side because she was
standing in front of Jaime. Jaime became angry, moved toward Waters, and the two men started
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grappling and fighting with each other. Jeff testified that “everybody started engaging” and
“everybody got locked up.” By “everybody,” Jeff meant himself, Jaime, Waters, and Debbie. Jeff
testified that he was trying to separate Jaime and Waters. Jeff conceded that he may have grabbed
Waters by the head, or in the head area, from behind while trying to pull him away from Jaime.
According to Jeff, none of the members of the Arredondo group had a weapon. After the scuffle
started, John and Yvonne drove up in their black Tahoe SUV, and John jumped out, leaving the
car running. John testified he did not get involved in the fight, however, because his wife reminded
them they had children at home. Jeff also testified that John did not join the fight. Jennifer, who
had come outside to the parking lot, was yelling at Waters to stop. Liliana was trying to pull
Debbie out of the middle of the fight, but Debbie resisted. Jeff testified that he, Jaime, and Waters
became entangled together during the struggle, and they all fell to the ground. Jeff landed on top
of or to the side of Waters and that is when he saw a gun in Waters’s hand. Jeff attempted to pin
down Waters’s hand holding the gun. Debbie also testified that she saw a gun on the ground at
some point during the fight, and tried to move Jaime out of the way. Debbie did not know where
the gun came from. Liliana had just turned back toward her vehicle to get her cell phone to call
the police when she heard a gunshot; she ducked down inside her car. Both John and Jennifer
stated they saw a gun in the waistband of Waters’s pants when his shirt was pulled up during the
fight. After Jennifer heard a gunshot, she looked at Waters and saw the gun in his hand, but it was
aimed away from the other people. Jeff did not recall hearing a gunshot, but heard Jaime yelling,
“you shot my wife,” “you killed my wife,” and “I’m going to kill you.” Jeff saw Debbie lying on
the ground in a pool of blood. Jennifer and Jeff ran over to Debbie and began applying pressure
to the gunshot wound on her head. When John heard the gunshot, he grabbed Yvonne and ran
inside the bar for protection. John called 911 from inside the bar. He testified that some of the
bar employees told them to hide in a back room because Waters was “crazy.”
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Meanwhile in the parking lot, Jaime had jumped into John’s Tahoe SUV, which was still
running, and accelerated toward Waters, who fled down the sidewalk. Jaime continued speeding
through the parking lot in pursuit of Waters and crashed head-on into a parked vehicle, pushing it
over the curb and into a retaining wall. At the same time, Waters fell down and fired multiple
gunshots from the ground into the lower part of the Tahoe driver’s door, hitting Jaime twice in his
leg. Jeff and Jennifer were kneeling next to Debbie and neither saw the Tahoe coming, but heard
the crash and gunshots. Jennifer was grazed by the stationary vehicle that Jaime hit with the Tahoe.
After a few minutes, Waters walked up to Jennifer and told her to come with him. They walked
to the adjacent Starbucks where Waters unloaded his handgun and placed it on the table, along
with his driver’s license and concealed handgun license, and waited for the police to arrive. Waters
was arrested and charged with one count of aggravated assault with a deadly weapon for shooting
Debbie.
In addition to the above testimony, other eyewitnesses to the incident testified at trial.
Jonathan Goodman stated he went to the bar after work and was outside smoking a cigarette when
he observed two men and a woman involved in a verbal confrontation in the parking lot. Goodman
heard Waters say, “are you ready” and “are we going to do this?” In Goodman’s opinion, Waters
was “acknowledg[ing] that he wanted to fight.” Goodman saw that the woman kept trying to get
between the men and heard Waters tell the other man, “get this bitch out of the way.” Goodman’s
opinion was that Waters was acting as the aggressor in the confrontation. Goodman stated he had
previously seen Waters at the bar “mean mugging,” which he stated is a “term for . . . ‘aggressive
staring.’” Goodman then saw the husband push his wife aside and shove Waters. Waters and the
husband began “throwing fists” at each other. Next, Goodman saw a Tahoe SUV drive up and a
man jumped out, leaving the engine running. The man from the Tahoe came up behind Waters
and put him in a “choke-hold.” Goodman, a former service member with combat medic training,
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testified that a choke-hold maneuver is designed to make the person “pass out.” Goodman stated
that while Waters was in the choke-hold, a third man (Jeff) slammed Waters down on top of the
Tahoe’s hood and the husband started hitting Waters with his fists. All of the men then rolled off
the hood to the other side and Goodman lost sight of the fight.
About thirty seconds later, Goodman heard a gunshot. To that point, Goodman had not
seen anyone with a gun. Goodman walked around the Tahoe and saw that Waters had a gun in his
hand. Goodman told Waters to put his gun away. Goodman went to assist Debbie, who was lying
on the ground with her head grazed by the gunshot. Goodman heard Jaime yell at Waters, “you’re
dead . . . I’m going to kill you.” Jaime then tried to run over Waters with the Tahoe, but Waters
ran, fell to the ground, and “unloaded the rest of his magazine” into the driver’s side door.
Goodman stated that when Waters fired into the driver’s door, the Tahoe was stationary and Waters
was yelling, “get the f**k out of the truck” and still trying to fire his gun after it was empty. The
Tahoe had crashed into Goodman’s parked pickup truck and pushed it into a retaining wall.
According to Goodman, the Tahoe did not hit Waters or pin him against the other vehicle.
Lucas Lozano also observed the incident in the parking lot. Lozano and his girlfriend had
gone to the bar to hang out with some co-workers after work. They left at closing time. While
walking to his car, Lozano saw the driver of a silver Land Rover get out of his vehicle and start
arguing with two men and a couple. Lozano heard the driver, Waters, say, “I’m going to beat your ass. I’m not going to shoot you.” Lozano also heard Waters say, “you better handle your bitch.” A scuffle followed between Waters and the group. Lozano heard a gun fall to the ground. Lozano
turned to his girlfriend and urged her to get into the car. A few seconds later, Lozano heard a
gunshot but did not see who fired the gun. Lozano and his girlfriend drove away from the scene
and called 911. They later returned to give statements to the police. One of the responding police
officers, San Antonio Police Officer Scott Marshall, testified that Waters admitted to the shooting
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at the scene. Officer Marshall testified that Waters had only minor injuries to his face that night
and identified a photograph showing Waters with an abrasion on his forehead.
Neither Jaime nor Waters testified at trial. The only defense witness was Jennifer Kirk,
the bartender. Jennifer testified that she and Waters had been dating for approximately one month
when the shooting occurred. On that night, Waters came into the bar earlier in the evening for a
drink, left at about 8:30 p.m., and then returned at about 1:15 a.m. Jennifer stated she did not
observe the initial interaction between Waters and the Arredondo group when he returned to the
bar from the restroom, but later noticed that glances were being exchanged between Waters and
members of the group. No words were exchanged. Jennifer interpreted Waters’s behavior and
demeanor at that time as him feeling like the group was “some sort of threat. Like he needed to
keep his eyes on them.” She stated that all the men involved that night, including Waters, were
“big guys.” When the group got up to leave the bar, Jennifer attempted to convince Waters to stay
in the bar awhile longer because she feared a potential problem if they all left at the same time.
Waters disregarded Jennifer’s request, and exited the bar at the same time as the Arredondo group,
i.e., approximately 2:00 a.m.
A few moments later, Jennifer walked outside. She observed members of the Arredondo
group yelling at Waters as he walked to his car, but stated Waters did not acknowledge them and
just got into his car. Jennifer walked over to Waters’s car and again tried to convince him to come
back inside the bar and wait for her to finish her shift because she was “worried that there would
be some sort of an altercation.” Waters refused. Jennifer went back inside the bar. When she
noticed that “some sort of confrontation” was going on in the parking lot, Jennifer walked back
outside. Jennifer saw that Waters’s vehicle was stopped in the middle of the parking lot and he
was standing outside the vehicle. She did not know what caused Waters to exit his vehicle, but
saw that Waters and one of the men from the Arredondo group were yelling at each other from
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about twenty feet apart. Jennifer testified she heard Waters say, “if you want to fight, get your
bitch out of the way.” The distance between Waters and the other man closed and they started
swinging at each other. A woman was in between Waters and the other man, trying to pull her
husband away. Jennifer did not see anything in either man’s hands. Jennifer stated that two other
men also got involved in the scuffle with Waters, for a total of three men from the Arredondo
group and Waters. During the struggle, one of the men pulled up Waters’s sweatshirt and Jennifer
saw a handgun in the back waistband of Waters’s pants. Jennifer yelled at Waters to “stop,” and
reached for her cell phone to dial 911. At that point, the scuffle “went from upright to on the
ground.” One of the men from the Arredondo group was near Waters’s head and the other two
men were on either side of Waters on the ground. Jennifer did not recall seeing any of the men
use their fists on Waters or kick Waters while he was on the ground. Jennifer then heard a gunshot.
She immediately looked at Waters and saw a gun in his hand, but stated it was pointed away from
the woman who was shot. Jennifer saw the woman lying on the ground and ran over to check on
her. Blood was coming from her head, and someone told Jennifer to keep putting pressure on the
wound. The woman’s husband came and knelt down by his wife. He was frantic and yelling, “you
shot my wife” over and over. Jennifer’s focus was on helping the woman, and she did not notice
when the husband (Jaime) left. But, shortly afterwards, Jaime crashed a black SUV into the vehicle
parked next to Jennifer, striking Jennifer and knocking her over. Simultaneously with being struck
by the vehicle, Jennifer heard four to six gunshots. The black SUV was going so fast that it rammed
the parked vehicle into a retaining wall. Jennifer crawled up on the sidewalk out of the way and
sat there for a few minutes before Waters walked toward her and told her to come with him. Waters
seemed frantic. They walked around to the front side of the Starbucks, and Waters laid down the
disassembled gun and his drivers’ license on an outdoor table. They waited three or four minutes
for the police to arrive. Waters told the police he was the person who shot Debbie and Jaime.
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Waters was indicted on a single count of aggravated assault with a deadly weapon by
shooting Debbie Arredondo and causing her bodily injury. See TEX. PENAL CODE ANN.
§ 22.02(a)(2) (West 2011). At the conclusion of trial, the jury found Waters guilty and the trial
court sentenced him to fifteen years’ imprisonment. Waters now appeals. ANALYSIS On appeal, Waters raises two related issues, arguing that the evidence did not support
submission of a jury instruction on whether he provoked the difficulty, and that the evidence was
legally insufficient to support a finding that he provoked the difficulty.
Jury Instruction The trial court submitted instructions on self-defense and provoking the difficulty in the
jury charge. Waters did not object to the provocation instruction. On appeal, Waters asserts the
trial court erred in submitting the provocation instruction because his use of mere “fighting words”
was insufficient to constitute provocation under the legal standard. The State responds that the
evidence was sufficient to create a fact issue for the jury as to whether Waters provoked Jaime into
attacking him.
We analyze an allegation of jury charge error in two steps, first determining whether error
exists and then whether the degree of harm necessary for reversal occurred. Ngo v. State, 175
S.W.3d 738, 743-44 (Tex. Crim. App. 2005). If error exists and the error was preserved, reversal
is required if “some harm” exists. Id. If error exists, but it was unpreserved, then the error must
have caused actual “egregious harm” to warrant reversal. Id.
The provocation doctrine has its roots in common law but is codified in the self-defense
statute contained in the Texas Penal Code. Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App.
1998) (noting the common law concept of provoking the difficulty is founded on the principle of
estoppel); see TEX. PENAL CODE ANN. § 9.31(b)(4) (West 2011). The provocation doctrine is
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commonly referred to as “provoking the difficulty” or “provoking the attack,” and acts as a
limitation on a defendant’s right to self-defense. Smith, 965 S.W.2d at 512; Elizondo v. State, 487
S.W.3d 185, 196 (Tex. Crim. App. 2016) (defendant forfeits his right to self-defense if he provokes
the attack). The concept is that “‘[a] man may not take advantage of his own wrong to gain
favorable interpretation of the law . . . [O]ne cannot willingly and knowingly bring upon himself
the very necessity which he sets up for his own defense.’” Smith, 965 S.W.2d at 513-14 (quoting
Sorrell v. State, 74 Tex. Crim. 505, 169 S.W. 299, 307 (1914)).
A jury charge on provocation is required when sufficient evidence exists that (1) the
defendant did some act or used some words which provoked the attack on him, (2) such act or
words were reasonably calculated to provoke the attack, and (3) the act was done or the words
were used for the purpose and with the intent that the defendant would have a pretext for inflicting
harm on the other person. Elizondo, 487 S.W.3d at 197; Smith, 965 S.W.2d at 513. The three
elements are questions of fact and may be proven by circumstantial evidence. Smith, 965 S.W.2d
at 513. In deciding whether to submit the instruction, the trial court must decide “whether evidence
has been presented that could support a jury’s finding on all three elements of provocation beyond
a reasonable doubt.” Elizondo, 487 S.W.3d at 197 (emphasis in original). In determining whether
there was sufficient evidence to warrant the instruction, an appellate court views the evidence in
the light most favorable to submission of the instruction. Smith, 965 S.W.2d at 514 (appellate
court resolves conflicts in the evidence and draws reasonable inferences in favor of giving the
instruction).
The first element is the threshold for the application of the provocation doctrine. Under
this element, the evidence must show that the defendant did or said something that actually caused
the attack on him. Elizondo, 487 S.W.3d at 199; Smith, 965 S.W.2d at 514. “This requirement
preserves the right of self-defense of a defendant who may have plotted provocation, and intended
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to provoke a difficulty, but who nevertheless does not put his plan into action.” Smith, 965 S.W.2d
at 514. In addition, while the defendant’s acts or words will usually be leveled directly at the
victim, a defendant’s acts or words directed at a third party may also provoke a difficulty. Id.; see
also Elizondo, 487 S.W.3d at 199. The State need not prove the exact words or the particular act
by the defendant that provoked the difficulty—the jury must merely be able to find there was some
provoking act or words. Smith, 965 S.W.2d at 515. Here, the evidence, viewed in the light most
favorable to the instruction, showed that Waters was the initiator of every interaction with the
Arredondo group, inside the bar as well as outside in the parking lot. Waters’s words and actions
toward the members of the group were initially provocative and became directly threatening and
aggressive in the parking lot. As Waters walked toward Jaime, Jeff, and Debbie in the parking lot,
he used threatening words by stating he was not going to shoot them but was “going to kick their
ass.” The witnesses’ testimony was consistent that Waters directed his comment calling Debbie a
“bitch” toward Jaime and several testified that Waters threw the first punch at Jaime, making contact with Debbie instead,2 before Jaime reacted. In addition, there was witness testimony that
Waters not only called Debbie a “bitch,” but threatened to “knock her out too” before he threw the
punch at Jaime that hit Debbie. Jaime immediately reacted by lunging toward Waters and
“grappling” and fighting with him. Viewing the evidence in the light most favorable to submission
of the instruction, a rational jury could find that Jaime’s attack on Waters occurred as a direct result
of Waters’s disrespectful and threatening language toward Debbie and Waters’s action in throwing
a punch at Jaime which struck Debbie. Based on this evidence, a rational jury could find that these
words and actions by Waters actually caused the attack by Jaime.
2 Jeff and Liliana testified that Waters struck Debbie when he threw the first punch at Jaime. Debbie testified that she did not recall being hit by Waters.
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Next we turn to the second element and determine whether there was sufficient evidence
that Waters’s words and/or acts were reasonably calculated to provoke Jaime’s attack on him.
“[A]n act is reasonably calculated to cause an attack if it is reasonably capable of causing an attack,
or if it has a reasonable tendency to cause an attack.” Elizondo, 487 S.W.3d at 199 (quoting Smith,
965 S.W.2d at 517). In addition, words alone may also provoke a difficulty “if they are clearly
designed to do so.” Id. Here, Waters addressed Jaime and referred to Jaime’s wife Debbie as a
“bitch,” in combination with an express threat to “knock her out” according to one witness, or an
implied threat to “get your bitch out of the way” if Jaime “want[ed] to fight,” according to another
witness. These words by Waters were immediately followed by his action in throwing a punch
toward Jaime, which struck Debbie. Viewing the evidence in the light most favorable to the
instruction, we conclude a rational jury could find that Waters’s threatening words and his
aggressive act of throwing the punch were reasonably capable of causing, or had a reasonable
tendency to cause, Jaime’s attack against Waters in response. See Smith, 965 S.W.2d at 517.
Viewing Waters’s words and actions in the context of his previous comments and actions leading
up to the face-to-face confrontation only strengthens our conclusion. See Elizondo, 487 S.W.3d at
199 (in addressing second Smith element, the defendant’s acts and words may be considered alone
or in conjunction with the other circumstances surrounding the difficulty).
Finally, with respect to the third Smith element, we consider whether a rational jury could
find that Waters chose his words and engaged in the act of throwing the first punch for the purpose
and with the intent that he would have a pretext for harming Jaime and the other members of the
group. See Elizondo, 487 S.W.3d at 200. The mere fact that the defendant said words or did an
act that indeed provoked the other’s attack is not enough. Id. The defendant must have had the
intent that the words and/or act would have the effect of provoking the attack “as part of a larger
plan of doing the victim harm.” Id. (quoting Smith, 965 S.W.2d at 518). The defendant’s intent
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is to be determined from the totality of the circumstances, and his words and actions before, during,
and after the provocation may be considered in discerning his intent. Elizondo, 487 S.W.3d at
201; Smith, 965 S.W.2d at 518. “The acts of provocation alone can carry the inference of intent,
and [the defendant’s] actions during or after the provocation can illuminate his intent.” Elizondo,
487 S.W.3d at 202. Further, the defendant’s prior words and acts can supply context and character
to his words or acts of provocation and aid in determining his intent. Id.
Here, the totality of the circumstances show that Waters’s words and actions were part of
a larger plan to provoke a fight with one or all of the members of the Arredondo group. Waters
initiated the first contact with the group inside the bar and again sought out the group in the parking
lot where he escalated the interaction into a fight. Inside the bar, Waters first engaged by
complaining that the group was blocking the aisle and “making him walk around,” using a curse
word according to two witnesses’ recollections. The evidence was undisputed that the bar was not
crowded and there were other available paths that Waters could have used to return to his seat
without interacting with the group. Debbie testified that Waters continued to look at the group
from his bar seat, and John overheard him talking about guns. Debbie described Waters’s
demeanor that night as “angry, zoned out, mean, some one [sic] you don’t want to mess with.”
John testified that, based on Waters’s behavior inside the bar, he thought Waters was “wanting
trouble.” In addition, Jennifer testified that she was concerned about a “potential problem”
between Waters and the group, and she urged Waters to stay inside the bar but he insisted on
leaving at the same time as the Arredondo group.
In the parking lot, Waters again sought out the group, aggressively driving toward them at
a high speed and “almost hitting” Jeff and Debbie. When Jeff and Debbie yelled at Waters to slow
down, instead of driving away he backed up and rolled down his window to yell back a threatening
comment that they “just f**ked with the wrong person” or “you don’t want to f**k with me.” The
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evidence showed that Waters’s vehicle was not blocked in and he could have driven away, but
instead he got out of his vehicle to confront the group, thereby escalating the situation into a face
to-face conflict. Waters also armed himself with his handgun before approaching the group, which
supports an inference he anticipated violence and possible use of the gun. Waters is the person
who made aggressive threats during the confrontation, saying that he planned to “kick their ass”
and calling Jaime’s wife a “bitch” and telling Jaime to “get your bitch before I knock her out too.”
Jaime began fighting with Waters after Waters threw the first punch at him and hit Debbie. The
testimony showed that Waters was the only person with a handgun or any other type of weapon
during the fight, and Jennifer testified she saw a gun in Waters’s hand right after she heard the
gunshot that hit Debbie. After the entire incident was over, Waters did not flee, but walked to the
nearby Starbucks and waited for the police to arrive. Waters confirmed to police that he was the
shooter.
Considering all of Waters’s comments and actions toward the Arredondo group preceding
the fight, we conclude that a rational jury could find that Waters called Debbie a “bitch,” threatened
to “knock her out too,” and threw a punch that hit Debbie for the purpose and with the intent that
he would have a pretext for inflicting harm on Jaime and the rest of the group. See Elizondo, 487
S.W.3d at 200. Indeed, Waters’s words and acts of provocation toward Debbie by themselves
support an inference that Waters’s intent was to provoke her husband Jaime into attacking him so
that he (Waters) would have a pretext for fighting and inflicting harm on Jaime. See id. at 202;
Smith, 965 S.W.2d at 514. Considering those words and acts of provocation in the context of
Waters’s initiation of contact with the group inside and outside the bar and all his prior comments
and actions toward the group that preceded the fight only strengthens the inference of intent and
existence of a larger plan. Waters was the only person initiating and escalating the conflict, the
only person making verbal threats and derogatory remarks, and the only person who could have
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defused the conflict by simply driving away. There is no evidence that Waters ever abandoned
the encounter or communicated his intent to abandon the encounter. See TEX. PENAL CODE ANN.
§ 9.31(b)(4) (describing abandonment as an exception to the provocation doctrine). An objective
observer, Goodman, who knew none of the people involved, testified that Waters was acting as
the aggressor in the confrontation who acknowledged by his comments of “are you ready” and
“are we going to do this” that he wanted to fight.
Viewing the evidence in the light most favorable to the provocation instruction, as we must,
we conclude the trial court properly submitted the instruction because there was sufficient evidence
upon which the jury could find all three elements of provocation beyond a reasonable doubt. See
Elizondo, 487 S.W.3d at 197. In reaching this conclusion, we hold “merely that the evidence was
sufficient to allow the jury to pass on” the issue of provocation. Smith, 965 S.W.2d at 520.
Sufficiency of the Evidence Having held that the provocation instruction was properly submitted, we next address
Waters’s argument that the evidence was legally insufficient to “prove beyond a reasonable doubt
that he did provoke the difficulty,” thereby forfeiting his right to act in self-defense. In resolving
this issue, we apply the well-established standard of review for legal sufficiency to the same three
elements of provocation discussed above. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (appellate court views all the
evidence in the light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements beyond a reasonable doubt). In conducting a sufficiency
analysis, we defer to the jury’s assessment of the credibility of the witnesses and the weight to be
given to their testimony, and resolve any inconsistencies in the evidence in favor of the jury’s
verdict. Brooks, 323 S.W.3d at 899; Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
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Waters admitted shooting Debbie during the incident, but claimed she was accidentally
shot while he was acting in self-defense. See TEX. PENAL CODE ANN. § 22.02(a)(2); id. § 9.31.
Defense counsel argued in opening statement that Waters was beaten, choked, and stomped on by
the men in the Arredondo group and that Waters had to use his gun because they were preventing
him from leaving the scene. At the conclusion of trial, the State argued the evidence showed that
Waters provoked the attack on himself as part of his plan to pick a fight, and therefore Waters was
barred from claiming he acted in self-defense.
Waters’s argument on appeal is based on the faulty premise that the State had the burden
to disprove self-defense. As discussed above, the doctrine of provocation, once proven,
necessarily precludes a defendant’s assertion of self-defense. See Elizondo, 487 S.W.3d at 196;
see also Smith, 965 S.W.2d at 512. Once the provocation instruction was submitted, it became the
jury’s role to evaluate the credibility of the witnesses and the weight to be given their testimony,
and to resolve any conflicts in the evidence, to determine whether the three elements of provocation
were proven. See Brooks, 323 S.W.3d at 899; see also Curry, 30 S.W.3d at 406. Deferring to the
jury’s credibility determinations and resolution of inconsistencies in the evidence, we conclude the
evidence detailed above under Waters’s first issue is legally sufficient to establish each of the three
elements of provocation.

Outcome: Based on the foregoing analysis, we overrule Waters’s issues on appeal and affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

Comments: