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Date: 02-24-2021
Case Style:
Pedro Pablo Pena, Jr. v. The State of Texas
Case Number: 10-19-00360-CR
Judge: JOHN E. NEILL
Court: IN THE
TENTH COURT OF APPEALS
Plaintiff's Attorney: Barry N. Johnson
Sterling A. Harmon
Gabriel Price
Defendant's Attorney:
OR
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Description:
Waco, Texas - Criminal defense attorney represented Pedro Pablo Pena, Jr. with challenging his conviction for one count of aggravated assault..
In the instant case, Pena was charged by indictment with two counts of aggravated
assault against James Hernandez and Cody Hightower. In the first count, the State
alleged that Pena intentionally, knowingly, and recklessly caused bodily injury to
Hernandez by “stabbing and/or cutting him” with a deadly weapon—a knife. The
second count alleged that Pena intentionally or knowingly threatened Hightower with
imminent bodily injury by exhibiting and throwing a knife at or near him. The indictment
also contained an enhancement paragraph that referenced Pena’s prior conviction in
Eastland County, Texas, for assault on a public servant.
The case proceeded to trial before a jury. At the conclusion of the trial, the jury
found Pena guilty of the offense of aggravated assault against Hernandez. Thereafter,
the trial court accepted Pena’s plea of “true” to the enhancement paragraph contained in
the indictment. The jury subsequently sentenced Pena’s to forty years’ confinement in
the Institutional Division of the Texas Department of Criminal Justice. The jury found
Pena not guilty of the second aggravated-assault allegations as to Hightower.
The trial court certified Pena’s right of appeal. This appeal followed.
II. THE JURY CHARGE
In both of his issues on appeal, Pena challenges the language contained in the guiltinnocence jury charge. In his first issue, Pena contends that the trial court erred by failing
Pena v. State Page 3
to include a multiple-assailants instruction in the charge. In his second issue, Pena asserts
that the trial court unlawfully limited his self-defense claim in the charge.
A. Applicable Law
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003).
The purpose of the jury charge is to inform the jury of the applicable law and guide
the jurors in applying it to the facts of the case. Hutch, 922 S.W.2d at 170. Article 36.14 of
the Code of Criminal Procedure requires the trial court to deliver to the jury “a written
charge distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC.
ANN. art. 36.14; see Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). This duty
exists even when defense counsel fails to object to inclusions or exclusions in the charge.
See Taylor, 332 S.W.3d at 486. As such, the trial court may have to sua sponte instruct the
jury on the law applicable to the case. Id.
B. Discussion
We first address Pena’s complaint about the multiple-assailants instruction. A
trial court errs when it fails to provide an instruction on multiple assailants and selfdefense if the issues are raised by the evidence. See Frank v. State, 688 S.W.2d 863, 868
(Tex. Crim. App. 1985). The defendant is entitled to a charge on a defensive issue if raised
Pena v. State Page 4
by the evidence, even if that evidence is weak or contradicted, and regardless of whether
the trial court finds the evidence credible. Id.; Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim.
App. 1999). As explained by now-Presiding Judge Keller,
The theory behind the multiple assailants charge is that, when it is clear that
an attack is being conducted by multiple people as a group, a defendant is
justified in using force against any member of the group, even if the
recipient of that force is not engaging in conduct that would, by itself, justify
the use of force (or deadly force as the case may be). For example, if a
defendant was trapped in a house with several hostile individuals, some of
whom were brandishing firearms and threatening the defendant, the
defendant may be justified in using deadly force against a different person
who was blocking an exit that would otherwise be a viable path of retreat.
The use of deadly force against the person blocking the exit would be
justified, even though that person possessed no firearms and made no
threatening moves, because of that person’s complicity with those who
threatened the defendant’s life. The rule concerning multiple assailants is
essentially an application of the law of parties to the defendant’s assailants.
Dickey v. State, 22 S.W.3d 490, 493 (Tex. Crim. App. 1999) (Keller, J., concurring).
Here, the trial court provided the following instruction:
If you have found that the State has proved the offense beyond a reasonable
doubt, you must next decide whether the State has proved that the
Defendant’s conduct was not justified by self-defense.
To decide the issue of self-defense, you must determine whether the State
has proved, beyond a reasonable doubt, one of the following:
1. The Defendant did not believe that his conduct was immediately
necessary to protect himself and/or Lazaro Pena against JAMES
HERNANDEZ and/or CODY HIGHTOWER’s use or attempted use
of unlawful deadly force; or to prevent JAMES HERNANDEZ
and/or CODY HIGHTOWER’s imminent commission or attempted
commission of murder.
Pena v. State Page 5
2. The Defendant’s belief was not reasonable.
The above language is a multiple-assailants instruction, as the instruction refers to
Pena’s right of self-defense as to multiple assailants—Hernandez and Hightower. See id.;
Frank, 688 S.W.2d at 868 (“[A] defendant is entitled to a charge on the right of self-defense
against multiple assailants if, ‘there is evidence, viewed from the accused’s standpoint,
that he was in danger of an unlawful attack or a threatened attack at the hands of more
than one assailant.’” (quoting Wilson v. State, 140 Tex. Crim. 424, 145 S.W.2d 890, 893 (Tex.
Crim. App. 1940))); see also Weekley v. State, No. 01-18-00543-CR, 2020 Tex. App. LEXIS
420, at *20 (Tex. App.—Houston [1st Dist.] Jan. 16, 2020, no pet.) (mem. op., not
designated for publication); Otis v. State, No. 07-96-0010-CR, 1997 Tex. App. LEXIS 3611,
at *6 (Tex. App.—Amarillo July 9, 1997, no pet.) (not designated for publication).
Therefore, we reject Pena’s contention that the trial court erred by allegedly failing to give
a multiple-assailants instruction in the guilt-innocence charge.1
See TEX. CODE CRIM.
PROC. ANN. art. 36.14; Taylor, 332 S.W.3d at 486; Hutch, 922 S.W.2d at 170; Frank, 688
1
It is undisputed that the evidence adduced at trial raised the issue of multiple assailants. Indeed,
the record contains testimony that Hernandez, Hightower, Pena, and his brother, Lazaro, had been eating
and drinking during a day visit to BSR Cable Park in Waco, Texas. As they were leaving the cable park,
Pena invited the group back to his apartment. Lazaro was very inebriated and laid down on an air mattress.
Thinking it would be funny, Hightower let out all the air in Lazaro’s air mattress. Lazaro woke up very
angry and a fight ensued. Lazaro rushed at Hernandez and Hightower. Hernandez side-stepped Lazaro
and punched him in the side of his jaw. According to Pena, Hernandez and Hightower then began to kick
and punch Lazaro while Lazaro was lying on the ground allegedly unconscious. Up until this point, Pena
had been observing the scuffle from another room. However, after allegedly seeing his brother being
kicked and punched while down on the ground, Pena grabbed a 12-inch knife with an 8-inch blade, began
screaming at Hernandez and Hightower, and ultimately stabbed Hernandez several times in the back.
Pena v. State Page 6
S.W.2d at 868; see also Weekley, 2020 Tex. App. LEXIS 420, at *20; Otis, 1997 Tex. App.
LEXIS 3611, at *6. We overrule Pena’s first issue.
In his second issue, Pena complains that the trial court limited the application of
self-defense to the commission or attempted commission of murder. Again, this
contention misstates the instruction contained in the charge. As mentioned earlier, the
multiple-assailants instruction contained in the application portion of the charge did not
limit the application of self-defense to only the commission or attempted commission of
murder. Rather, the instruction also provided that self-defense could apply to the “use
or attempted use of unlawful deadly force” by Hernandez and/or Hightower. Moreover,
in the abstract portion of the charge, the following instructions were provided as to selfdefense:
A person’s use of deadly force against another that would otherwise
constitute the crime of Aggravated Assault is not a criminal offense if he
reasonably believed the force used was immediately necessary to protect
himself or another person against the other’s use or attempted use of
unlawful deadly force.
A person’s use of deadly force against another that would otherwise
constitute the crime of Aggravated Assault is not a criminal offense if he
reasonably believed the force used was immediately necessary to prevent
the other’s imminent commission of murder.
Therefore, based on the foregoing, we reject Pena’s second contention that the trial
court unlawfully limited the application of self-defense to the commission or attempted
commission of murder. Because we do not find error in the charge, we need not conduct
a harm analysis. See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (“Because
Pena v. State Page 7
we conclude that the charge was not erroneous in this case, we do not conduct a harm
analysis.”); see also Hutch, 922 S.W.2d at 170. As such, we overrule Pena’s second issue.
Outcome: Having overruled both of Pena’s issues, we affirm the judgment of the trial court.
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Defendant's Experts:
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