Allan Latoi Story v. State ( 2015 )

NUMBER 13-14-00038-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALLEN LATOI STORY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 19th District Court
of McLennan County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes1
Appellant Allan Latoi Story appeals his conviction for murder, a first-degree felony,
enhanced by prior convictions. See TEX. PENAL CODE ANN. §§ 12.42(c), 19.02(b)(1), (c)
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Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Tenth Court of Appeals in Waco, Texas. See TEX. GOV'T CODE
ANN. § 73.001 (West, Westlaw through 2015 R.S.).
(West, Westlaw through 2015 R.S.). A jury found appellant guilty and assessed
punishment at life imprisonment. By two issues, appellant argues the trial court erred:
(1) by excluding evidence of a recorded interview between appellant and a police officer;
and (2) by refusing to give a jury instruction on self-defense. We affirm.
I. BACKGROUND
Appellant was indicted for murder relating to the stabbing death of Zachary Davis.
Joyce Akers testified that she was a longtime friend of Rene Davis, Zachary’s sister.
Akers was at Rene’s apartment with Zachary, Rene, and appellant on the night of the
altercation. She recalled that Rene and appellant were arguing, when appellant said “if
you keep at it, I’m going to put my hands on you.” Zachary responded “as long as I’m
here, you’re not going to put hands on her.” Appellant told Zachary that if he interfered,
he would kill him. Akers testified that appellant then left the room, and when he returned,
Zachary told him “whatever you went back there to get or whatever you call yourself doing,
you’re going to have to use it.” Appellant then walked out the back door, and Rene
followed as the two continued arguing. Akers testified that appellant then grabbed Rene
and lifted her up by her throat. At that time, Zachary intervened and struck appellant with
his fist, which resulted in a physical altercation between Zachary and appellant. Akers
recalled that, as Zachary and appellant were punching each other, appellant fell to the
ground and Rene started hitting appellant. Akers testified that the fighting stopped and
appellant stood up and walked toward the back door, while Zachary walked away from
the back porch and into the yard. As appellant was walking away, he dropped a knife
and picked it up. Akers stated appellant then approached Zachary who fell to the ground
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on his back. Akers testified appellant got on top of Zachary and stabbed him several
times, while she yelled “please stop stabbing him.” After the stabbing, Rene ran into the
house and came back outside with a hammer. Appellant stood up and entered the
apartment, while Zachary ran away from the apartment. Akers stated that neither
Zachary nor Rene had a weapon when they were fighting appellant.
Officer Jason Ireland with the Waco Police Department testified that he responded
to the scene and observed Zachary on the ground gasping for breath. Zachary died
shortly after his arrival. Officer Ireland learned that appellant was suspected of stabbing
Zachary and obtained his cell phone number. He attempted to locate appellant’s cell
phone by determining its GPS location. For three to four hours, Officer Ireland and other
law enforcement officials searched for appellant using “pings” from appellant’s cell phone.
Officer Ireland narrowed appellant’s location to a residence within four to five blocks of
the crime scene. After confirming appellant was located in the house, an officer with a
canine called for him to come out. After two commands from the officer, appellant exited
the residence. Officer Ireland did not observe any physical injuries, and appellant did
not request medical treatment. Appellant was arrested and taken to the county jail.
Appellant’s counsel questioned Officer Ireland outside the presence of the jury
concerning his interview with appellant. Officer Ireland testified he talked to appellant in
his patrol car shortly after his arrest, and the interview was recorded. During the
interview, appellant stated “[Rene and Zachary] were jumping me and I defended myself.”
Appellant claimed that he saw a hammer and some knives. Appellant stated he was on
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the ground and “they hit me first.” Appellant explained that “[Zachary] hit me and I fell to
the ground and [Rene] came over and kicked me.”
Appellant’s counsel moved to admit the recorded interview as impeachment of
Officer Ireland’s testimony “about [appellant’s] voluntariness of coming out of the house
and also about injuries and so forth.” Appellant’s counsel also argued the recording was
admissible under “Texas Rules of Evidence 107, the Rule of Optional Completeness.”
The State objected that the video was hearsay and irrelevant. The trial court sustained
the State’s objections.
Angelika McCallister, a crime scene technician for the Waco Police Department,
testified concerning photographs of the crime scene and the parties involved in the
altercation. McCallister explained that appellant had a number of superficial and non-life
threatening injuries, but that Rene did not exhibit any injuries.
Dr. Janice Townsend-Parchman, the Dallas County medical examiner, performed
Zachary’s autopsy. She testified that Zachary suffered three stab wounds to the: (1)
front left shoulder, penetrating 4¾ inches; (2) liver, penetrating 4¾ inches; and (3) right
thigh, penetrating 3 inches. Dr. Townsend-Parchman concluded the three stab wounds
caused Zachary’s death.
Rene testified during appellant’s case-in-chief. Rene stated that after arguing
with appellant, she went outside with Zachary. Appellant followed them, and they
continued to argue. Rene testified Zachary punched appellant “because [appellant]
acted like he was going to choke me.” Rene denied that appellant picked her up by her
throat. During the altercation between appellant and Zachary, appellant ended up on the
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ground, and she began hitting appellant with a stick. Rene estimated that the stick was
two to three feet long and less than four inches in diameter. After she saw appellant stab
Zachary, she went inside the apartment to get a hammer. Rene was not sure if she hit
appellant with the hammer or not. Following the altercation, appellant ran into the
apartment and locked the door, while Zachary ran toward the parking lot.
On cross-examination, Rene testified that she gave a statement to police on the
night of Zachary’s death, but did not mention the stick or the hammer because she was
scared. Rene acknowledged she visited appellant in the jail on four occasions following
Zachary’s death. She admitted appellant asked her to marry him during one of the visits
and discussed his upcoming trial with her.
The jury found appellant guilty and assessed punishment at life imprisonment.
This appeal followed.
II. HEARSAY
By his first issue, appellant argues “the trial court erred in excluding from evidence
an audio recording of an interview of appellant by a police officer that was made 3–4
hours after the stabbing of the victim.” Specifically, appellant maintains the video
recording was not hearsay because it was not offered to prove the truth of the matter
asserted. We disagree.
A. Preservation
We must first address whether the issue raised on appeal comports with the
objection made at trial. To have evidence admitted over a hearsay objection, the
proponent of the evidence must specify which exception he is relying upon or how the
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evidence was not hearsay. Willover v. State, 70 S.W.3d 841, 845–46 (Tex. Crim. App.
2002); see also Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (“So it is
not enough to tell the judge that evidence is admissible. The proponent, if he is the losing
party on appeal, must have told the judge why the evidence was admissible.”).
Additionally, to complain about a trial court's evidentiary ruling, a party must have first
made his complaint to the trial court in a manner that states the grounds for the desired
ruling with sufficient specificity to make the trial court aware of the complaint. See TEX.
R. APP. P. 33.1(a)(1)(A). If the trial court never has the opportunity to rule upon the
proponent's appellate rationale, the argument cannot be raised on appeal. See Reyna,
168 S.W.3d at 178.
At trial, appellant’s counsel argued that the recorded interview was admissible over
the State’s hearsay objection to impeach Officer Ireland’s testimony “about [appellant’s]
voluntariness of coming out of the house and also about injuries and so forth.”2 On
appeal, appellant argues two theories for the admissibility of his statements to Officer
Ireland. First, appellant maintains that the statements are admissible to show that
“appellant began to say he was defending himself far earlier than the State had
deliberately misled the jury to think.” Appellant did not make this argument to the trial
court with respect to his statements to Officer Ireland. Rather, the argument was made
with respect to appellant’s later interview with Detective Steve January.3 Appellant does
2 Appellant’s counsel also argued, at trial, that the recording was admissible under “Texas Rules
of Evidence 107, the Rule of Optional Completeness,” but he does not raise that argument on appeal.
3 Story’s counsel argued to the trial court that the statements made to Detective January were
admissible as impeachment of Rene’s testimony “that they were getting their plan together and so forth as
far as this case.”
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not challenge the trial court’s ruling concerning the admissibility of his statements to
Detective January. Therefore, this argument is not preserved for appeal. See Reyna,
168 S.W.3d at 178.
Second, appellant maintains on appeal his statements to Officer Ireland were not
hearsay because they were offered “to show that Officer Ireland’s testimony that appellant
was uncooperative . . . was not correct.” We will address this argument to the extent it
comports with the argument actually raised in the trial court. See Willover, 70 S.W.3d at
845–46.
B. Standard of Review and Applicable Law
We review the trial court's decision to admit or exclude evidence under an abuse
of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
Whipple v. State, 281 S.W.3d 482, 499 (Tex. App.—El Paso 2008, pet. ref'd). The trial
court does not abuse its discretion unless its determination lies outside the zone of
reasonable disagreement. Martinez, 327 S.W.3d at 736; Whipple, 281 S.W.3d at 499–
500. We will uphold a trial court's decision so long as it is supported by the record and
is correct under any theory of applicable law. De LaPaz v. State, 279 S.W.3d 336, 344
(Tex. Crim. App. 2009); Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).
Hearsay is defined by the rules of evidence as “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” TEX. R. EVID. 801(d). It is well-settled that when the
accused does not take the stand, self-serving statements are generally not admissible.
Hafdahl v. State, 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other
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grounds by Cook v. State, 858 S.W.2d 467, 469–470 (Tex. Crim. App. 1993); see Reado
v. State, 690 S.W.2d 15, 17 (Tex. App.—Beaumont 1984, pet. ref'd).
[S]elf-serving declarations of the accused are ordinarily inadmissible in his
behalf, unless they come under some exception, such as: being part of the
res gestae of the offense or arrest, or part of the statement or conversation
previously proved by the State, or being necessary to explain or contradict
acts or declarations first offered by the State.
Singletary v. State, 509 S.W.2d 572, 576 (Tex. Crim. App. 1974); see Allridge v. State,
762 S.W.2d 146, 152 (Tex. Crim. App. 1988); Davis v. State, 970 S.W.2d 758, 761 (Tex.
App.—Austin 1998, no pet.). “The theory behind the third exception is to prevent the fact
finder from being misled or perceiving a false, incorrect impression when hearing only a
part of an act, declaration, conversation or, especially, a writing.” Reado, 690 S.W.2d at
17. Under this exception, the proffered testimony may be admitted only if necessary to
prevent the jury from being misled or mistaken. Id.
C. Analysis
Appellant does not argue that his self-serving statements were admissible as being
part of the res gestae of the offense or arrest or that his statements were part of a
statement or conversation previously proved by the State. Rather, appellant maintains
that his statements to Officer Ireland were admissible “to show that Officer Ireland’s
testimony that appellant was uncooperative . . . was not correct.” To determine whether
appellant’s self-serving declaration would be admissible under this theory, we must
decide whether such statements “were necessary to explain or contradict acts or
declarations first offered by the State.”4 See Singletary, 509 S.W.2d at 576.
4 While appellant argued at trial that the statements were admissible under Texas Rule of Evidence
613, he does not raise this argument on appeal. Further, rule 613 would have no application here, because
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Appellant contends Officer Ireland’s testimony that he was uncooperative
necessitated admission of his entire recorded statement. Officer Ireland testified that it
took officers three to four hours to locate appellant and that appellant did not exit the
residence until an officer with a canine issued commands for appellant to come out.
Appellant’s statements to Officer Ireland focused on his assertions that he acted in self-
defense. Officer Ireland offered no testimony concerning his conversation with appellant
or whether he acted in self-defense.
In reviewing the record, we find no portion of Officer Ireland’s testimony that
created a false impression or misled the jury. Therefore, we cannot conclude that
appellant’s recorded statement was necessary to explain or contradict acts or
declarations first offered by the State. See Reado, 690 S.W.2d at 17; see also Allridge,
762 S.W.2d at 153 (explaining that “to adopt appellant's position would mean that all self-
serving statements by an accused would be admissible”). Accordingly, appellant’s
statements to Officer Ireland constitute inadmissible self-serving hearsay, and the trial
court did not abuse its discretion in excluding those statements. See Martinez, 327
S.W.3d at 736; Hafdahl, 805 S.W.2d at 402. We overrule appellant’s first issue.
appellant’s statements do not constitute a prior inconsistent statement made by Officer Ireland. See
Willover v. State, 70 S.W.3d 841, 846 n. 8 (Tex. Crim. App. 2002) (“Texas Rule of Evidence 613 allows into
evidence (for impeachment purposes) proof of a witness's prior inconsistent statements (provided the
proper predicate is established). Such prior inconsistent statements are considered hearsay and, unless
they fall within some hearsay exception, they are admissible for impeachment purposes only (as opposed
to substantive purposes).”).
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III. JURY INSTRUCTION
By his second issue, appellant argues the trial court erred by “den[ying] his request
for a jury instruction on self-defense because the issue was raised by the evidence.” We
disagree.
A. Standard of Review
Appellate review of alleged jury charge error generally involves a two-step process.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005). First, we must determine whether error occurred.
Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013). If there is error in the
charge, we must then analyze whether sufficient harm resulted from the error to require
reversal. Id.; Ngo, 175 S.W.3d at 744. If error has been properly preserved, as in this
case, reversal is required if the error is “calculated to injure the rights of defendant,”
meaning there must be some harm. See TEX. CODE CRIM. PROC. ANN. art. 36.19 (West,
Westlaw through 2015 R.S.); Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App.
2009). The defendant must have suffered some actual, rather than merely theoretical,
harm from the error. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
We consider “‘the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.’” Barron v. State, 353 S.W.3d
879, 883 (Tex. Crim. App. 2011) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984)).
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B. Applicable Law
The trial court is required to instruct the jury on statutory defenses, affirmative
defenses, and justifications whenever they are raised by the evidence. TEX. PENAL CODE
ANN. §§ 2.03(d), 2.04(d) (West, Westlaw through 2015 R.S.); Walters v. State, 247
S.W.3d 204, 208–09 (Tex. Crim. App. 2007). A defendant is entitled to an instruction on
every defensive issue raised by the evidence, regardless of whether the evidence is
strong, feeble, unimpeached, or contradicted, and even when the trial court thinks the
testimony is not worthy of belief. Walters, 247 S.W.3d at 209. A defensive issue is
raised by the evidence if there is some evidence, regardless of its source, on each
element of a defense that, if believed by the jury, would support a rational inference that
the element is true. See Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).
In determining whether a defensive instruction should have been given, “we view the
evidence in the light most favorable to the defendant's requested submission.” Bufkin v.
State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). The question of whether a defense
is raised by the evidence is a sufficiency question, which we review as a question of law.
Shaw, 243 S.W.3d at 658.
In order for a trial court to submit a self-defense instruction to the jury, a defendant
must produce sufficient evidence on each element to raise the issue. TEX. PENAL CODE
ANN. § 2.03 (West, Westlaw through 2015 R.S.). Sections 9.31 and 9.32 of the Texas
Penal Code provide in relevant part that a person is justified in using deadly force against
another “when and to the degree the actor reasonably believes the force is immediately
necessary . . . to protect the actor against the other's use or attempted use of unlawful
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deadly force.” Id. §§ 9.31(a), 9.32(a). “Deadly force” means force that is intended or
known by the actor to cause, or in the manner of its use or intended use is capable of
causing, death or serious bodily injury.” Id. § 9.01(3). “Serious bodily injury” means
bodily injury that creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of a bodily
member or organ. Id. § 1.07(a)(46).
C. Analysis
Appellant did not testify. However, he argues he was entitled to a self-defense
instruction on the use of deadly force because he “was on the ground, being assaulted
by two adults, one of whom was hitting him with a stick that was 2–3 feet long and as
thick as a female’s wrist, immediately before he stabbed [Zachary].” The trial court
denied the requested instruction, concluding there was “no evidence or testimony that
[appellant] reasonably believed that deadly force was necessary to protect himself against
somebody else's use of deadly—of unlawful deadly force.”
The evidence, viewed in the light most favorable to the requested instruction,
reflects that appellant threatened Rene by saying “if you keep at it, I’m going to put my
hands on you.” When appellant “acted like he was going to choke [Rene,]” Zachary hit
appellant with his fist, and the two began punching each other. Zachary and Rene were
both hitting appellant while he was on the ground, but at some point appellant was able
to get up and Zachary walked away from him. It was at this time appellant approached
the unarmed Zachary and stabbed him with a knife and Zachary fell to the ground. While
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Rene testified she previously struck appellant with a stick, the evidence shows the three
had already separated when appellant approached Zachary and stabbed him.
Assuming appellant was initially justified in using non-deadly force in response to
being hit by Zachary, there is no evidence that he reasonably believed the use of deadly
force was immediately necessary to protect himself at the time he stabbed Zachary. See
Bennett v. State, 726 S.W.2d 32, 37–38 (Tex. Crim. App. 1986) (holding that
reasonableness of fear for a self-defense claim must be judged from the standpoint of the
accused at the “instant he responds to the attack”); Trammell v. State, 287 S.W.3d 336,
341 (Tex. App.—Fort Worth 2009, no pet.) (concluding that the defendant was not entitled
to self-defense instruction in absence of immediacy of threat from victim); Oestrick v.
State, 939 S.W.2d 232, 238 (Tex. App.—Austin 1997, pet. ref'd) (determining that the
defendant was not entitled to a self-defense instruction when victim had a baseball bat
but was walking away from defendant when defendant shot the victim).
We conclude appellant was not entitled to a self-defense instruction, and the trial
court did not commit error in denying the requested instruction. See Wooten, 400
S.W.3de at 606. We overrule appellant’s second issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of November, 2015.
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