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CAUSE NO. 1348372

RAUL RODRIGUEZ

§

JANUARY TERM, A. D., 2012

Members of the Jury: The defendant, Raul Rodriguez, stands charged by indictment

with the offense of murder, alleged to have been committed on or about the 2nd day of May, 2010, in Harris County, Texas. defendant has pleaded not guilty. Our law provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an The

individual; or if he intends to cause serious bodily injury and intentionally or knowingly commits an act clearly dangerous human life that causes the death of an individual. "Deadly weapon" means a firearm or anything manifestly to

designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. "Bodily injury" means physical pain, illness, or any

impairment of physical condition. "Serious bodily injury" means bodily injury that creates a

substantial risk of death or that causes death, serious permanent

1

disfigurement, or protracted loss or impairment of the function of any bodily member or organ. A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious desire to cause the result. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct
is

objective or

reasonably certain to cause the result. You are instructed that you may consider all relevant facts and circumstances surrounding the death, if any, and the previous relationship existing between the accused and the deceased,

together with all relevant facts and circumstances going to show the condition of offense, if any. Now, if you find from the evidence beyond a reasonable doubt that on or about the 2nd day of May, 2010, in Harris Texas, the defendant, Raul Rodriguez, did then and County, there the· mind of the accused at the time of the

unlawfully, intentionally or knowingly cause the death of Kelly Danaher by shooting him with a deadly weapon, namely, a firearm; or If you find from the evidence beyond a reasonable doubt that on or about the 2nd day of May, 2010, in Harris County, Texas, the defendant, Raul Rodriguez, did then and there unlawfully

intend to cause serious bodily injury to Kelly Danaher, and did cause the death of Kelly Danaher by intentionally or knowingly committing an act clearly dangerous to human life, namely by

shooting Kelly Danaher with a deadly weapon, namely, a firearm,
2

.'

then you will find the defendant guilty of murder, as charged in the indictment. Unless you so find from the evidence beyond a reasonable

doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict I1NotGuilty."

3

Upon

the

law

of

self-defense,

you

are

instructed

that

a

person is justified in using force against another when and to the degree he reasonably believes the force is immediately

necessary to protect himself against the other person's use or attempted use of unlawful force. The use of force against

another is not justified in response to verbal provocation alone. A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such deadly force is immediately person's use necessary or to protect use of

himself

against

the

other

attempted

unlawful deadly force. A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force. You are not to consider

whether the defendant failed to retreat. By the term "reasonable be Ld e f " as used herein is meant a

belief that would be held by an ordinary and prudent person in the same circumstances as the defendant. By the term "deadly force" as used herein is meant force that is intended or known by the persons using it to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. When a person is attacked with unlawful deadly force, or he reasonably believes he is under attack or attempted attack with
4

unlawful

deadly

force

by

one

or

more

persons,

and

there

is

created in the mind of such person a reasonable expectation or fear of death assailants, resorting or serious bodily injury at the hands of such in

then the law excuses

or justifies

such person command

to deadly force by any means at his

to the

degree that he reasonably believes immediately necessary, viewed from his standpoint at the time, to protect himself attack or attempted attack. from such

It is not necessary that there be an

actual attack or attempted attack, as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, appeared to him from his standpoint at the time, as it

and that he necessary

reasonably believed such deadly force was immediately

to protect himself against the use or attempted use of unlawful deadly force by his assailants. You are instructed that it is your duty to consider the

evidence of all relevant facts and circumstances surrounding the alleged offense and the previous relationship existing between facts

the accused and Kelly Danaher together with all relevant

and circumstances going to show the condition of the mind of the defendant at the time of the alleged offense. You will also

consider evidence of the previous relationship, if any, existing between the accused and any other person, or persons, with Kelly Danaher at the time in question and any conduct, words, or both of such persons with Kelly Danaher at said time. In considering

all the foregoing, you should place yourselves in the defendant's
5

position and view the circumstances from his standpoint alone, at the time in question.
--------.---- ----.~-------.--------------

Therefore, if you find from the evidence beyond a reasonable

doubt that the defendant, Raul Rodriguez, did cause the death of Kelly Danaher by shooting him with a deadly weapon, namely, a

firearm, as alleged, but you further find from the evidence, as viewed from the standpoint of the defendant at the time, that or other to the

from the words or conduct, or both of Kelly Danaher

persons with him, or any of them, it reasonably appeared

defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Kelly Danaher or other persons with Kelly Danaher, or any of them, and that acting under such apprehension and

reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against Kelly Danaher'S use or attempted use of unlawful deadly force or against the use or attempted use of unlawful deadly force by those persons with Kelly Danaher, he shot Kelly Danaher, then you should acquit the defendant on the grounds of self-defense; or if you have a

reasonable doubt as to whether or not the defendant was acting in self-defense on said occasion and under the circumstances, then

you should give the defendant the benefit of that doubt and say by your verdict, not guilty. If you find from the evidence beyond a reasonable doubt that at the time and place in question the defendant or did not

reasonably believe

that he was 6

in danger of death

serious

bodily injury, or that the defendant, under the circumstances as viewed by him from his standpoint at the time, did not reasonably believe that the degree

immediately necessary to protect himself against Kelly Danaher's

_.------------

of

force

actually

.::;=:====:;:;======;========

used

by

him

was

use or attempted use of unlawful deadly force or against the lise or attempted use of unlawful deadly force by those persons with Kelly Danaher, then you should find against the defendant on the issue of self-defense.

7

The threat of force is justified when justified. the

the use of force is

A threat to cause death or serious bodily injury by of a weapon or otherwise, as long as the

production

-----------~=-=-=-=-=-=-=-=======================-=.=-=-=-==-=-=~=-=-=~=-=============-=-==-===~=-~~~~===--------defendant's purpose 1S limited to creating an apprehension that
he will use deadly force if necessary, does not constitute the use of deadly force.

8

You are further instructed, as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the

--------------d~f~;d~-I1t---~~~ht--a~-~x:p-ianation f-ro~_;~di~~~-;~ion -with-t-h~other---------person concerning the defendant's differences with the other

person while

the defendant was failing to conceal

the handgun

that he was carrying as a concealed handgun license holder, in violation of the law. A person commits an offense if, while the person was a holder of a license to· carry a concealed handgun, the person

intentionally failed to conceal the handgun. A person commits an offense if, while the person was a holder of a license to carry a concealed handgun, the person carried a handgun and was intoxicated.
II

Handgun II

means

any

firearm

that

is

designed,

made,

or

adapted to be fired with one hand. If you find from the evidence beyond a reasonable doubt that the defendant, Raul Rodriguez, did then and there on May
2nd,

2010, fail to conceal a handgun in violation of the law stated above, before seeking an explanation from or discussion with the other person concerning the defendant's differences with the

other person,

then you will find against the defendant

on the

issue of self-defense.

9

You are further instructed as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant provoked the other's use or attempted use of unlawful force, unless: (a) the defendant abandons the encounter, or clearly

---------------------------

communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (b) the other person, nevertheless, continues or attempts to use unlawful force against the defendant. So, in this case, if you find and believe from the evidence beyond a reasonable doubt that the defendant
I

Raul Rodriguez,

immediately before the difficulty, then and there did some act, or used some language, or did both, as the case may be, with the intent on his, the defendant's, part, to produce the occasion for shooting Kelly Danaher, and to bring on the difficulty with the said Kelly Danaher, and that such words and conduct on the

defendant's part, if there was such, were reasonably calculated to, and did, provoke a difficulty, and that on such account Kelly Danaher or any other person attacked the defendant with deadly force, or re'asonably appeared to the defendant to so attack him or to be attempting to so attack him, and that the defendant then shot Kelly Danaher with a firearm, in pursuance of his original design, if you find there was such, then you will find against the defendant on the issue of self-defense. On the other hand, if you find from the evidence that the

acts done or language used by the defendant, if any, were not,
10

under

the a

circumstances, difficulty or

reasonably calculated an attack by Kelly

or

intended upon

to the

provoke

Danaher

defendant, or if you have a reasonable doubt thereof,

then in

such event, the defendant's right of self-defense would in no way be abridged, impaired, or lessened, and, if you so find, or if you have a reasonable doubt thereof, you will decide the issue of self-defense in accordance with the law on that subject given in other portions of this charge, wholly disregarding and without

reference to the law on the subject of provoking the difficulty.

11

You

are

further

instructed that

if there

is any

evidence

before you in this case regarding the defendant's committing an alleged offense or offenses other than the offense alleged

against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other

offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the

offense, if any, alleged against him in the indictment and for no other purpose.

12

Our

law provides

that a defendant

may

testify

in his own

behalf if he elects to do so.

This, however, is a right accorded

a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify and you are instructed that you cannot and must not refer to or

allude to that fact throughout your deliberations or take it into consideration against him. for any purpose whatsoever as a circumstance

13

A Grand Jury indictment is the means whereby

a defendant is

brought to trial in a felony prosecution. guilt nor can it be considered by you

It is not evidence of in passing upon the

question of guilt of the defendant. criminal cases rests

The burden of proof in all the trial and

upon the State throughout

never shifts to the defendant. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been charged with at his trial.

arrested, confined, or indicted for, or otherwise the offense gives rise to no inference of guilt

The law does not require a defendant to prove his innocence or produce any evidence at all. is sufficient to acquit satisfied beyond a The presumption of innocence alone
f

the defendant

unless the

the jurors

are

reasonable

doubt of

defendant's

guilt

after careful and impartial consideration of all the evidence in the case. The prosecution has the burden of proving the defendant

guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant. It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof

excludes all reasonable doubt concerning the defendant's guilt. In the event you have a reasonable doubt as to the

defendant's guiit after considering all the evidence before you,

14

and these

instructions,

you will

acquit

him

and

say by your

verdict "Not Guilty." You are the exclusive judges of the facts proved, of the

credibility of the witnesses and the weight testimony, but the law you shall receive

to be given their in these written

instructions, and you must be governed thereby. After you retire to the jury room, you should select one of your members as your Foreman. at your deliberations, vote It is his or her duty to preside with you, and when you have

unanimously agreed upon a verdict, to certify to your verdict by using the appropriate form attached hereto and signing the same as Foreman. During your deliberations in this case, you must not

consider, discuss, nor relate any matters not in evidence before you. You should not consider nor mention any personal knowledge

or information you may have about any fact or person connected with this case which is not shown by the evidence. No one has any authority to communicate with you except the officer who has you in charge. After you have retired, you may Any

communicate with this Court in writing through this officer.

communication relative to the cause must be written, prepared and signed by the Foreman and shall be submitted to the court through this officer. in cha.rge, or Do not attempt to talk to the officer who has you the attorneys, or the Court, or anyone else

concerning any questions you may have. Your sole duty at this time is to determine the guilt or

innocence of the defendant under the indictment in this cause and
15

restrict

your

deliberations

solely

to

the

issue

of

guilt

or

innocence of the defendant. Following the arguments of counsel, you will retire to

consider your verdict.

David L. Mendoza, Judge 178th District Court Harris County, TEXAS

16

CAUSE NO.

1348372

----'l."tiE---------sTI\:--~EX::A._s===========i§~::::::;jI~N_TME_J:"iilTH

El"T"S'I'R:!eTLt'7r:1R

'0'8.RAUL RODRIGUEZ

§
§

JANUARY

TERM, A. D., 2012

VERDICT

"We, guilty. "

the

Jury,

find

the

defendant,

Raul

Rodriguez,

not

Foreman

of the Jury

(Please Print)

Foreman

IIWe', the Jury, murder, as charged

find

the defendant,

Raul

Rodriguez,

guilty

of

in the indictment."

Foreman

of the Jury

(Please Print) Foreman

17

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