Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00386-CR
Pedro ESPINOZA, Jr,
Appellant
v.
The STATE of Texas,
Appellee
From the 454th Judicial District Court, Medina County, Texas
Trial Court No. 22-02-14328-CR
Honorable Daniel J. Kindred, Judge Presiding
Opinion by: Lori Massey Brissette, Justice
Sitting: Irene Rios, Justice
H. Todd McCray, Justice
Lori Massey Brissette, Justice
Delivered and Filed: August 12, 2026
AFFIRMED
Pedro Espinoza, Jr., convicted of murder and sentenced to life in prison, complains on
appeal that the evidence presented at trial is not sufficient to support a finding of the requisite mens
rea for murder and that the trial court erred in refusing to instruct the jury on self-defense. Based
on the record before us, we affirm the conviction.
04-25-00386-CR
INCIDENT FACTS
On December 11, 2021, Espinoza called 911 saying that “somebody was following him
and trying to hurt him.” Sabinal Police Officer Christopher Zelinsky approached Espinoza at a gas
station where Espinoza told him that “55 to 60 vehicles” were following him and that he assumed
they were gang members. Zelinsky testified that, while Espinoza pointed to every vehicle that
passed, saying they were following him, Zelinsky did not observe any vehicles in pursuit of
Espinoza. During their interaction, Espinoza admitted to drinking beer and smoking marijuana
earlier in the day and told Zelinsky he was on his way to San Antonio to buy heroin.
Upon assurance by Zelinsky that the cars were simply people passing through, and after
talking with Espinoza’s wife on the phone who said his mother would come get him, Espinoza
appeared to calm down. Zelinsky then canceled the request for an additional deputy and told
Espinoza to call him if he needed anything.
Espinoza left the scene but quickly returned, “jumping the curb” to re-enter the gas station
parking lot. He notified Zelinsky, who was fixing a flat tire on his patrol vehicle, that “they” got
Zelinksky’s tire and Espinoza was next. Espinoza then left again, and Zelinsky notified dispatch
that Espinoza’s vehicle was traveling eastbound on Highway 90.
Orlando Sanchez and his mother were traveling westbound on Highway 90 toward Sabinal.
He observed headlights coming toward him head-on and, in response, slowed down and moved to
the left to let the vehicle pass. He heard what he thought was a rock hitting his truck but later found
a bullet hole in the bed of his truck.
Vivian Olivarez was also traveling westbound on Highway 90 that night with several
passengers, one of whom was Marlon Lindsey. Olivarez also saw headlights approaching her in
the wrong direction on her side of the road and, like Sanchez, she slowed down and moved onto
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the shoulder to allow the vehicle to pass. 1 As the vehicle passed, she heard a “loud pop” and raised
her hand to shield herself. She noticed her hand was bleeding and then looked over to see Lindsey
“bleeding out.” She pulled over, called 911, and noted that Lindsey had no pulse.
A sheriff’s deputy from Medina County later stopped a vehicle that was traveling the wrong
way on Highway 90 near the Dunlay/Hondo area. Espinoza exited the vehicle and began telling
the deputy “a story about being chased.” When asked if he had any weapons, Espinoza stated he
“had gotten rid” of a gun by throwing it out of the vehicle. Espinoza told deputies that someone
was after him and was trying to kill him. Heroin and a “meth pipe” were found in Espinoza’s
vehicle.
Based on Espinoza’s statements about where he had thrown the gun, law enforcement
found a .45 caliber Glock with an extended magazine. A bullet retrieved from Lindsey’s body was
identified by a forensic scientist as having come from the gun that was recovered. Deputies also
found spent shell casings as well as live ammunition in Espinoza’s vehicle.
In a later interview at the Medina County Sheriff’s Office, Espinoza stated he believed
someone was trying to kill him, possibly gang members from various prison gangs or his mother
and father. He said that as he was driving, he was looking for “shadows” and believed others were
throwing road spikes or other devices out of cars to slow him down. He stated that he had moved
to the other lane, driving in the wrong direction, to avoid the road spikes. He stated he was shooting
at “cars that were still on the road” but did not shoot at cars that pulled off the road because he did
not feel any danger from them. He remembered shooting at cars “one by one.” When told that
someone had been shot, he expressed remorse.
1
The evidence at trial showed that Olivarez did not know Espinoza and there were no weapons in the vehicle she was operating. Olivarez was a driver transporting railroad employees on the morning in question.
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PROCEDURAL FACTS
The case was tried to a jury on May 20, 2025. Espinoza requested the jury charge include
an instruction on self-defense and the State objected citing Espinoza’s statement that he did not
feel threatened by vehicles that had pulled over, as Olivarez had done. The trial court denied
Espinoza’s request to include the instruction in the jury charge and the jury returned a verdict of
guilty. On appeal, Espinoza asserts that the evidence is insufficient to establish the requisite mens
rea for murder and that the trial court erred in failing to instruct the jury on self-defense.
SUFFICIENCY OF EVIDENCE AS TO MENS REA
First, Espinoza contends the evidence is insufficient to show that he had the requisite mens
rea to support a conviction of murder. When reviewing the trial record to determine sufficiency of
evidence to support a conviction, we view all evidence in the light most favorable to the verdict
and determine whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Witcher v. State, 638 S.W.3d 707, 709–10 (Tex. Crim. App.
2022) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We remain mindful that the original
trier of fact, in this case the jury, is the sole judge of the weight and credibility of the evidence.
TEX. CODE CRIM. PROC. ANN. Art. 38.04; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App.
2017). Further, we will presume the jury resolved any conflicting inferences in favor of the verdict
and will defer to that resolution if it is based on the cumulative force of the evidence. Braughton
v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); Montgomery v. State, 369 S.W.3d 188, 192
(Tex. Crim. App. 2012) (reviewing court must not usurp the jury’s role by “substituting its own
judgment for that of the jury”).
We measure the evidence against the elements of the offense as defined by a
“hypothetically correct jury charge.” Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011);
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TEX. PENAL CODE § 19.02(c). A hypothetically correct jury charge correctly “sets out the law, is
authorized by the indictment, does not necessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense.” Baltimore v. State, 689 S.W.3d 331, 341–42 (Tex. Crim. App. 2024).
Here, Espinoza was charged with and convicted of murder under Texas Penal Code section
19.02. As charged in the indictment, to convict Espinoza of murder the jury had to find that he
either intentionally or knowingly (a) caused the death of Marlon Lindsey or (b) intended to cause
serious bodily injury and committed an act clearly dangerous to human life that caused the death
of Marlon Lindsey. TEX. PENAL CODE § 19.02(b)(2) and (3). “A person acts intentionally, or with
intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious
objective or desire to engage in the conduct or cause the result.” TEX. PEN. CODE § 6.03(a). “A
person acts knowingly, or with knowledge, with respect to the nature of his conduct or to
circumstances surrounding his conduct when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause the result.” TEX. PEN.
CODE § 6.03(b). “A jury may infer the requisite mental state from (1) the acts, words, and conduct
of the defendant, (2) the extent of the injuries to the victim, (3) the method used to produce the
injuries, and (4) the relative size and strength of the parties.” Rhymes v. State, 536 S.W.3d 85, 95
(Tex. App.— Texarkana 2017, pet. ref’d) (citing Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.
App. 1995)).
Here, Espinoza asserts the evidence at trial is insufficient to support the jury’s inference of
intent because the evidence demonstrated he was not aware that someone had been shot and that
he expressed remorse when hearing of Lindsey’s death. He further points out that he was shooting
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at vehicles, not people, and that all other bullets “merely made contact with other vehicles on the
road, not their human occupants.”
Generally, the intent to kill may be inferred when the defendant uses a deadly weapon,
“unless in the manner of its use it is reasonably apparent that death or serious bodily injury could
not result.” Godsey v. State, 719 S.W.2d 578, 580–81 (Tex. Crim. App. 1986); Jones v. State, 944
S.W.2d 642, 647 (Tex. Crim. App. 1996). A firearm is a deadly weapon per se. TEX. PEN. CODE §
1.07(a)(17)(A).
Espinoza attempts to distinguish cases that stand for the proposition that a jury can infer
intent when the crime involves use of a firearm. For example, he points to Cavazos v. State, 382
S.W.3d 377 (Tex. Crim. App. 2012) and asserts that, unlike Cavazos who pointed the gun at a
person, he was simply shooting at vehicles. Likewise, he points to Medina v. State, 7 S.W.3d 633
(Tex. Crim. App. 1999) and asserts that, unlike Medina who fired a gun “into a crowd of children
and teenagers,” his bullets (other than the one which hit and killed Lindsey) “merely made contact
with other vehicles.”
But the fact that he admits he was shooting at vehicles he knew to be occupied is sufficient
to support the jury’s inference of intent or knowledge that his conduct was reasonably certain to
cause death or serious bodily injury. See Manriquez v. State, 994 S.W.2d 640 (Tex. Crim. App.
1999). In Manriquez, a defendant convicted of attempted murder challenged the evidence
supporting mens rea, contending that he simply intended to hit the house and did not know it was
occupied. Id. at 647. As pointed out by the concurrence, the act of firing into a residence at four
o’clock in the morning is sufficient to satisfy the requisite culpable mental state of attempted
murder. Id. In fact, he “knowingly attempted to injure or harm anyone in the house.” Id.
(McCormick, J., concurring).
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Likewise, in Hull v. State, 871 S.W.2d 786, 789 (Tex. App.—Houston [14th Dist.] 1992,
pet. ref’d), a defendant who admitted to shooting at a car attempted to avoid responsibility by
asserting he was not aiming at a person but was trying to hit the car. But, noting that people were
inside the car, the court recognized that “[t]here certainly existed a substantial risk that someone
in the car would be killed” and held the evidence sufficient to support the murder conviction. Id.
Here, Espinoza admitted to shooting at several vehicles, all of whom he knew to be
occupied. The fact that only one bullet actually hit a person inside one of those vehicles does not
negate intent. See Gittens v. State, 560 S.W.3d 725, 735 (Tex. App.— San Antonio 2018, pet. ref’d)
(stating that, “[i]f a deadly weapon is used in a deadly manner, the inference of intent to kill is
almost conclusive”) (citing Fields v. State, 515 S.W.3d 47, 53 (Tex. App.—San Antonio 2016, no
pet.)). Instead, the evidence supports the jury’s inference of intent and we, therefore, overrule
Espinoza’s first point of error.
FAILURE TO INSTRUCT JURY ON SELF-DEFENSE
Espinoza next asserts the trial court erred by refusing to instruct the jury on the issue of
self-defense. When reviewing the trial court’s refusal to include a jury instruction, we engage in a
two-part process. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Kirsch v. State,
357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we will determine whether there was charge
error and then, if there was, we will determine if the defendant was so harmed by the error that
reversal is required. Id.
“A person is justified in using deadly force against another if. . . he reasonably believes
deadly force is immediately necessary to protect himself against the other’s use or attempted use
of unlawful deadly force.” Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing
TEX. PENAL CODE § 9.32(a)). Here, Espinoza contends the evidence supports a jury instruction on
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self-defense because he told law enforcement, and they testified to the same at trial, that he
believed he was being chased by gang members who wanted to kill him.
He is correct that a jury instruction is warranted if raised by the evidence, “whether that
evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court
may think about the credibility of the defense.” Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim.
App. 2017). But Espinoza had the initial burden of producing evidence to support the submission
of an instruction on self-defense. See Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App.
2018). In determining whether he met that burden, we view the evidence in the light most favorable
to his requested defensive instruction. Gamino, 537 S.W.3d at 510 & n. 6 (citing Bufkin v. State,
207 S.W.3d 779, 782 (Tex. Crim. App. 2006)). “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.” Lozano
v. State, 636 S.W.3d 25, 32 (Tex. Crim. App. 2021).
Self-defense justifies an actor’s conduct “when and to the degree the actor reasonably
believes the deadly force is immediately necessary” to protect the actor against the other’s use or
attempted use of unlawful deadly force or to prevent the other’s imminent commission of one of
the violent offenses listed in the statute. TEX. PENAL CODE § 9.32(a)(2) (emphasis added). Thus,
the question is whether Espinoza presented any evidence to demonstrate that he reasonably
believed he needed to act to protect himself.
A “reasonable belief” has both a subjective and an objective element to it. First, “[a]
defendant must subjectively believe that another person used or attempted to use unlawful force
(Section 9.31) or deadly force (Section 9.32) against the defendant and that the defendant’s use of
unlawful or deadly force in response was immediately necessary.” Lozano, 636 S.W.3d at 32
(citing Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980). “Second, a defendant’s
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subjective belief must be reasonable.” Id. A reasonable belief is one that would be held by an
“ordinary and prudent man in the same circumstances as the actor.” TEX. PENAL CODE §
1.07(a)(42); see Braughton, 569 S.W.3d at 618 (Keller, P.J., dissenting) (“The phrase ‘reasonably
believes’ signifies both that the actor actually believes and that the actor’s actual belief is
reasonable.”).
Here, the evidence fails to hit either mark. First, Espinoza fails to demonstrate that he
actually believed that a person in Olivarez’s vehicle was a threat. Espinoza never stated, nor does
any other evidence support the contention, that Olivarez as the driver or Lindsey as the passenger
– or any other person in the vehicle for that matter – did anything to provoke or threaten him. His
statements about other people, other cars, fail to demonstrate that he believed he needed to defend
himself against this car and these people. In fact, while he stated he feared he was being chased,
he admitted he was shooting at oncoming traffic “one by one” as he drove the wrong way on the
highway. He further stated that he was not threatened by cars that pulled over, which the evidence
demonstrated Olivarez did.
Further, Espinoza failed to present any evidence of facts or circumstances that would cause
an ordinary and prudent person to believe he needed to defend himself against the persons in the
vehicle driven by Olivarez. See, e.g., Hamel v. State, 966 S.W.2d 491, 494 (Tex. Crim. App. 1996)
(holding the issue of self-defense was raised by evidence that the defendant was told the other
person had a gun and had threatened him). The undisputed evidence was that Olivarez did not
know Espinoza, that she was transporting railroad employees that morning as an employed driver,
and that no weapons were found in her vehicle.
Absent any facts or circumstances that would have supported Espinoza’s fear, we cannot
say the trial court erred in refusing to instruct the jury on the issue of self-defense. See, e.g., Mays
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v. State, 318 S.W.3d 368, 383 (Tex. Crim. App. 2010) (trial court’s refusal to instruct jury as to
justification defense affirmed where defendant who shot and killed two sheriff’s deputies while
experiencing paranoid ideation presented no evidence that his fear of the deputies was reasonable).
Going further, “[s]elf-defense is a confession-and-avoidance defense requiring the
defendant to admit his otherwise illegal conduct.” Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim.
App. 2020) (citing Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). But, as
demonstrated by the first half of this opinion, Espinoza does not admit the elements of the offense.
An instruction on self-defense “is only appropriate when the defendant’s defensive evidence
essentially admits to every element of the offense including the culpable mental state but interposes
the justification to excuse the otherwise criminal conduct.” Shaw v. State, 243 S.W.3d 647, 659
(Tex. Crim. App. 2007) (emphasis in original). Because Espinoza contends that he did not have
the intent to use deadly force, he takes the contrary position that his conduct was not murder as
defined by the Texas Penal Code and need not be justified, thereby negating his right to the
instruction. See Gilmore v. State, 44 S.W.3d 92, 97 (Tex. App.— Beaumont 2001, pet. ref’d).
For these reasons, we overrule Espinoza’s second point of error.
CONCLUSION
We affirm the trial court’s judgment of conviction.
Lori Massey Brissette, Justice
DO NOT PUBLISH
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