Story, Allan Latoi

PD-1626-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/16/2015 1:46:35 PM
December 18, 2015 Accepted 12/18/2015 1:36:16 PM
ABEL ACOSTA
Case No. PD- -15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
ALLAII LATOI STORY
Appellant
v.
THE STATE OF TEXAS
Appellee
Petition from the Thineenth Court of Appeals No. 13-14-00038-CR
affirming the judgment in Cause Number 2011-2499-Cl
from the 19ft Judicial District Court of Mclennan County, Texas
APPELLAI\T'S PETITION FOR DISCRETIONARY REVIEW
Attorney for Appellant:
Doyle L. Young
State Bar No. 00797718
Law Office of Doyle L. Young, P.C.
P.O. Box 2174
Waco, TX76703
Telephone: Q5$ 855-1 108
Fax: (800) 620-7961
Email : dyoung.law.waco@gmail.com
IDENTITY OF JUDGE. PARTIES. Ai\D COUNSP.L
Trial Judge: The Honorable Ralph Strother
Appellant: Allan Latoi Story
Appellant's Appellate Counsel: Doyle L. Young
Law Office of Doyle L. Young, P.C.
P.O. Box 2174
Waco, TX76703
Appellant's Trial Counsel: Samuel Martinez
1105 Wooded Acres, Suite 200
Waco, TX767l0
Appellee: The State of Texas
Appellee's Appellate Counsel : Abel Reyna
Criminal District Attorney
219 N. 6'h Street, Suite 200
Waco, TX7670l
Appellee's Trial Counsel: J.R. Vicha
Chris Bullajian
219 N. 6tr Street, Suite 200
Waco, TX7670l
TABLE OF CONTENTS
Identity of Judge, Parties, and Counsel .. I
Index of Authorities . 3
Statement Regarding Oral Argument . . ....... 4
Statement of the Case ...... 4
Statement of Procedural History ...
Grounds for Review 5
1. The Court of Appeals erred by not following precedent when it
concluded that Appellant was not entitled to a self-defense
instruction. (Slip Op. 13). This error is a sufficient reason for
the granting of review under Tsx. R. App. Pnoc. 66.3(0.
2. The Court of Appeals erred by not following precedent when
it refused to consider Appellant's appellate issue regarding a
properly-made evidentiary request on the ground that the request
was not made and thus not preserved. (Slip Opin. 6-7). This effor
is a sufficient reason for the granting of review under
TPx. R. App. Pnoc. 66.3(0.
Argument ..... 5
l. Ground No. 1 .......... 5
2. Ground No. 2 .... 8
Prayer for Relief 12
Certificate of Service 13
Certificate of Compliance 13
Appendix 14
INDEX OF AUTHORITIES
CASES
BuJkinv. State,207 S.V/.3d779,782 (Tex. Crim. App. 20Aq 5
Shaw v. State, 243 S.W.3 d 647, 657 -659 (Tex. Crim. App. 2001) 6
STATUTES AI\D RULES
Tex. R. App. Pnoc. 66.3(0 ...... 4
STATEMENT REGARDING ORAL. ARGUMENT
Appellant waives oral argument.
STATEMENT OF THE CASE
Appellant Story was indicted for murder. At trial, the trial court refused
Appellant's request for a jury instruction on self-defense. The trial court also
refused to admit a CD recording of a police interview with Appellant made 3-4
hours after the stabbing in which Appellant asserted self-defense and which would
have supported the submission of a jury instruction on self-defense. The jury
convicted Appellant and assessed his punishment at life in prison.
The Court of Appeals affirmed the conviction, holding that Appellant was
not entitled to a self-defense instruction because there was no evidence that
Appellant reasonably believed the use of deadly force was immediately necessary
to protect himself at the time he stabbed the victim. This petition challenges that
holding.
The Court of Appeals also refused to consider Appellant's appellate issue
regarding the trial court's refusal to admit the CD recording of appellant's police
interview 3-4 hours after the stabbing. The Court of Appeals held that Appellant's
trial counsel did not preserve this issue. This petition challenges that holding.
STATEMENT OF PROCEDURAL HISTORY
In an unpublished Memorandum Opinion delivered and filed November 19,
z}ls,the Thirteenth Court of Appeals affirmed the judgment of the trial court. A
Motion for Rehearing was not filed.
GROUNDS FOR REVIEW
1. The Court of Appeals erred by not following precedent when it concluded
that Appellant was not entitled to a self-defense instruction. (Slip Opin. t3). This
effor is a sufficient reason for the granting of review under Tnx. R. App. Pnoc.
66.3(0.
2. The Court of Appeals erred by not following precedent when it refused to
consider a properly-made evidentiary request on the ground that the request was
not made and thus not preserved. (Slip Opin. 6-7). This effor is a sufficient reason
for the granting of review under Tex. R. App. Pnoc. 66.3(0.
ARGUMENT
A. Ground No. 1 - The Cqurt of Appeals erred by not followins precedent
when it concluded that Appellant was not entilled to a self-defense
instruction. (SIip Opin. 13).
1. The Court of Appeals' holding
The Court of Appeals held that Appellant was not entitled to a self-defense
instruction because o'... there is no evidence that he [Appellant] reasonably
believed the use of deadly force was immediately necessary to protect himself at
the time he stabbed Zachary;' (Slip Op. 13). In reaching this conclusion, the
Court of Appeals failed to follow precedent and overlooked significant facts.
2. The controlling precedent
The Court of Appeals did correctly state the controlling precedent: an
appellate court must view the evidence in the light most favorable to the
defendant's requested instruction." (Slip Op. 11, quoting Buftinv. State,207
S.W.3d 779,782 (Tex. Crim. App. 2006). But the Court of Appeals did not
follow this precedent.
3. The evidence
Appellant did not testiff at his trial. There were two witnesses to the fatal
fight befween Appellant and the victim and they did testiff.
a. Witness number one
The Court of Appeals accepted and followed the testimony of Joyce Akers.
Her account of the fatal fight indicated that the combatants had separated before
Appellant approached the victim and stabbed him. (III R.R. at 38-39; 49-50). This
testimony ostensibly supports the Court of Appeals' conclusion that Appellant did
not reasonably believe that the use of deadly force was immediately necessary to
protect himself from the victim.
b. Witness number 2
But the Court of Appeals overlooked the testimony of Rene Davis, the other
witness to the fight, and her testimony does provide enough evidence to require the
self-defense instruction to be given.
Under Texas law, evidence is sufficient to require a jury instruction if there
is some evidence, from any source, from which a jury could rationally infer that
the element is true, i.e. in the instant case, that Appellant did reasonably believe
that the use of deadly force was immediately necessary. Shaw v. State,243 S.W.3d
647,657-658 (Tex. Crim. App. 2007). Rene Davis' testimony did provide
sufficient evidence from which a jury could rationally infer that Appellant did
reasonably believe that the use of deadly force was immediately, particularly if the
Court of Appeals had correctly applied the precedent of viewing the evidence in
the light most favorable to the defendant's requested admission.
Specifically, Rene Davis testified that she and Appellant were in a heated
argument, into which the victim, her brother, inserted himself. The victim punched
Appellant. Rene joined in the assault on Appellant and Appellant was knocked to
the ground. (IV R.R. at 33-34). The victim and Rene were standing up over
Appellant and hitting him. (IV R.R. at 35). Rene was hitting Appellant with a
stick as thick as her wrist and2-3 feet long. (IV R.R. at34-35,52). She testified
that it was a big stick. (IV R.R. at 52). At some time during this beating of
Appellant, Rene saw blood on the victim and she and the victim allowed Appellant
to get up off the ground. (IV R.R. at 36).
4. Conclusion
Viewing the evidence in the light most favorable to the defendant's
requested submission, there is some evidence from which a jury could rationally
infer that Appellant reasonably believed that the use of deadly force was
immediately necessary to protect himself from his attackers. Therefore, the Court
of Appeals erred regarding the facts when it concluded that there was no evidence
that Appellant reasonably believed the use of deadly force was immediately
necessary and the Court of Appeals did not follow precedent when it held that
Appellant was not entitled to the jury instruction regarding self-defense.
B. Ground No.2 - The Court of Appeals erred by not followins precedent
when it refused to consider Appellant's anpellate issue regarding a
properlv-made evidentiarv request on the ground that the request was not
made and thus not preserved. (Slip Opin. 6-7).
1. The Court of Appeals'holding
The Court of Appeals held that Appellant's request for admission of a recorded
interview with Appellant made by Officer Ireland 3-4 hours after the stabbing (the
Ireland CD) on the ground that it rebutted the State's emphasis that Appellant
concocted his assertion of self-defense weeks after the stabbing was not preserved
for appeal because Appellant did not make that request in the trial court.
Therefore, the Court of Appeals did not consider this appellate issue. (Slip Opin. 6-
7). In doing so, the Court of Appeal's opinion demonstrates a misreading of the
Reporter's Record and a misunderstanding of the facts stated in it. These mistakes
led to the erroneous holding.
2. The facts
The Court of Appeals misunderstood an exchange between the trial judge and
Appellant's trial counsel. There are several salient background facts that must be
recited before turning to this exchange.
Officer Ireland's interview of Appellant3-4 hours after the stabbing, which
occurred in the back of his patrol car, was recorded (III R.R. at 65-67). In this
interview, Appellant asserted that he had defended himself in the fight against
Rene Davis and the victim. (Defense Exhibit I at 3:55:00 - 3:58:35). Appellant's
trial attorney offered the CD as impeachment evidence to rebut the impression
Officer Ireland left with the jury that Appellant was uncooperative at the time of
his arrest. (III R.R. at 69-70). The court sustained the State's hearsay objection.
(III R.R. at70).
During the cross-examination of Rene Davis, one of the witnesses to the fight,
the State laboriously created the impression that Appellant and Renee Davis
concocted the assertion of self-defense during Rone Davis' four visits to Appellant
at the jail in the weeks after the stabbing. (IV. R.R. at 43-51).
Appellant's attorney made an offer of proof regarding the proffered testimony
of police detective Steve January, who interviewed Appellant on the night of the
stabbing but after Officer Ireland's interview. (IV R.R. at93-95). Appellant's
attorney told the trial judge that the reason for this offer of proof related to
January's interview of Appellant "and it's about just the investigation in general
which requires going into the recording," i.e. the Ireland CD. (IV R.R. at 93).
January said that the issue of self-defense came up during his interview of
Appellant. (IV R.R. at 94). lnresponse to questions from Appellant's attomey,
January said that he did collect the video and audio from the police car cameras.
(IV R.R. at95). This included the Ireland CD. Appellant's attorney asked January
if he had talked to Officer Ireland on the evening of the stabbing and January said
that he did. (IV R.R. at 94-95). There was no reference to any CD recording of
January's interview of Appellant.
Appellant's afforney then offered January's testimony as impeachment of the
State's implication that Appellant and Rene Davis concocted the self-defense
theory. GV R.R. at 96).
The trial judge then said, "And there was also the audio recording of your client
in the back of the patrol car," i.e. the Ireland CD. (IV R.R. at 96). This indicates
that the trial judge was thinking that the Ireland CD was also relevant impeachment
evidence regarding the State's implication of concoction. In response, Appellant's
10
attorney asserted that Ireland's interview with Appellant would be highly relevant
because Appellant gave a statement to Ireland at that time (IV R.R. at 96-97),i.e.
not several weeks later while talking to Rene Davis at the jail. It appears that the
fair interpretation of Appellant's counsel's words are that, in light of the offer of
January's testimony to rebut the State's implication that Appellant and Rene Davis
concocted the self-defense theory weeks after the stabbing, the Ireland CD would
also be relevant and should be admitted. Then the discussion continued:
MR. MARTINEZ: .. . I think also the CD could be entered as far as that
impeachment as far as the officer's impression he left.
TFIE COURT: Well, it's still hearsay, and you can't get into it. I'm not
going to admit it. (IV R.R. at 97).
3. Conclusion
It appears clear that Appellant's attorney and the trial judge thought this
discussion was about admitting the Ireland CD as evidence to rebut the State's
assertion of concoction. (Further, Appellant's attomey also urged admission of the
Ireland CD to rebut Ireland's assertion that Appellant was uncooperative when
arrested.)
Further, it appears clear that the "it" the judge is not going to admit is the
Ireland CD which he and Appellant's counsel had just been discussing.
ll
The Court of Appeals misunderstood this exchange between the trial judge and
Appellant's attorney, thinking that it referred to the proffer of Detective January's
testimony regarding his interview of Appellant on the night of the stabbing.
This led the Court of Appeals to its error - it concluded that Appellant's trial
attorney did not request admission of the Ireland CD for the purpose of rebutting
the State's suggestion of concoction. Based on this erroneous conclusion, the
Court of Appeals then erroneously held that Appellant did not preserve this issue
for appeal. Therefore, the Court of Appeals did not consider it, which is a failure to
follow precedent.
PRAYER FOR RELIEF
Regarding GroundNo. l, Appellant requests that the Court of Criminal
Appeals reverse the judgment of ooGuilty" and remand this case to the trial court for
a new trial.
Regarding Ground No. 2, Appellant requests that the Court of Criminal
Appeals reverse the judgment of "Guilty" and remand this case to the trial court for
a new trial.
Respectfully submitted,
Law Ornrcr oF DoYLE L. YouNc, P.C.
/s/ Doyle L. You,nq
t2
Doyle L. Young
State BarNo. 00797718
100 N. 6th Street, Suite 600
P.O. Box 2174
Waco, TX76703
(254) 855-1 108 phone
(800) 620-796r fax
dyoung. law.waco@gmail.com
Attorney for Appellant
Certificate of Service
I hereby certify that a copy of this petition was served on the Mclennan
County District Attorney's office, attn. Sterling Harmon, via the court's electronic
filing system, on December 16, 2015. I further certifu that on the same date a copy
of this document was mailed via Certified Mail, Return Receipt Requested, to
Appellant Allan Latoi Story, Beto Unit - TDCJ, 1391 FM 3328, Tennessee
Colony, TX 75880. A copy of this document was also served the same day by
Certified Mail, Retum Requested, on the State Prosecuting Afforney, P.O. Box
13406, Austin, TX 78711.
/s/ Doyle Youne
Doyle Young
Certificate of Compliance
I hereby certiff that this petition complies with the word-count limit of Tpx. R.
App. Pnoc. 9. The petition contains 2,499 words and complies with the typeface
requirements and type style requirements in that it has been produced on a
computer in conventional typeface using Word 2007 in Times New Roman 14-
point font. The electronic file of this petition is free of computer virus and
malware.
/s/ Doyle Young
Doyle Young
13
APPENDTX
INDBX
Court of Appeals opinion
14
NUMBER 13-14-00038-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
GORPUS GHRISTI - 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 Ghief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes{
Appellant Allan Latoi Story appeals his conviction for murder, a first-degree felony,
enhanced by prior convictions. See Tex. PEnnl Cooe Aruru. gg 12.42(c),19.02(b)(1), (c)
1 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 Trx. Gov'r Coor
Atttt. $ 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.
!. BacxcnouND
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 orwhateveryou callyourself 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
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 lreland 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 lreland 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 lreland and other
law enforcement officials searched for appellant using "pings" from appellant's cell phone.
Officer lreland 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 lreland 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 lreland outside the presence of the jury
concerning his interview with appellant. Officer lreland 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
3
the ground and "they hit me first." Appellant explained that "[Zachary] hit me and I fellto
the ground and [Rene] came over and kicked me."
Appellant's counsel moved to admit the recorded interview as impeachment of
Officer lreland'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 4% inches; (2) liver, penetrating 4% 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 "becaLlse [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
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 trialwith her.
The jury found appellant guilty and assessed punishment at life imprisonment.
This appeal followed.
ll. HelRsev
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
evidence was not hearsay. Willover v. Sfafe, 70 S.W.3d 841, 84546 (Tex. Crim. App.
2002); see a/so Reyna v. Sfafe, 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(aX1XA). lf 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 lreland'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
lreland. 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 lreland. 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."
6
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 lreland were not
hearsay because they were offered "to show that Officer lreland'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
84H6.
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. Sfafe, 281 S.W.3d482,499 (Tex. App.-El Paso 2008, pet. refd). The trial
court does not abuse its discretion unless its determination Iies 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. Sfafe, 279 S.W.3d 336, 344
(Tex. Crim.App. 2009); Maftin y. Sfafe, 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. Evto. 801(d). lt is well-settled that when the
accused does not take the stand, self-serving statements are generally not admissible.
Hafdahl y. Sfafe, 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other
grounds by Cook v. Sfafe, 858 S.W.2 d 467 , 469470 (Tex. Crim. App. 1 993); see Reado
v. Sfafe, 690 S.W.2d 15, 17 (Tex. App.-Beaumont 1984, pet. refd).
[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. Sfafe,509 S.W.2d572,576 (Tex. Crim. App. 1974); see Allridge v. Sfafe,
762 S.W.2d 146, 152 (Tex. Crim. App. 1988);Davis v. Sfafe, 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. ld.
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 lreland were admissible "to show that Officer lreland'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 Srng/etary,509 S.W.2d at 576.
e 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
I
Appellant contends Officer lreland'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 lreland focused on his assertions that he acted in self-
defense. Officer lreland offered no testimony concerning his conversation with appellant
or whether he acted in self-defense.
ln reviewing the record, we find no portion of Officer lreland'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 lreland 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 a|402. We overrule appellant's first issue.
appellant's statements do not constitute a prior inconsistent statement made by Officer lreland. 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).").
I
lll. Junv lrsrRucnor
By his second issue, appellant argues the trialcourt 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.
Krsch v. Sfafe, 357 S.W.3d 645, 649 (Tex. Crim. App.2012); Ngo v. Sfafe, 175 S.W.3d
738,743 (Tex. Crim. App. 2005). First, we must determine whether error occurred.
Wooten v. Sfafe,400 S.W.3d 601,606 (Tex. Crim. App.2013). lf there iserrorin the
charge, we must then analyze whether sufficient harm resulted from the error to require
reversaf . ld.; Ngo,175 S.W.3d at744. lf 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. Cooe Cntu. Pnoc. AruN. art. 36.19 (West,
Westfaw through 2015 R.S.); SakT y. Sfafe, 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. Reeyes y. Sfafe,420 S.W.3d812,816 (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. Sfafe, 353 S.W.3d
879,883 (Tex. Crim.App.2011) (quoting Almanza y. Sfafe,686 S.W.2d157,171 (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. PrrunL CoDE
Aruru. $$ 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 y. Sfafe, 243 S.W.3d647,657-58 (Tex. Crim.App. 2007).
ln 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.
Sfafe, 207 S.W.3d779,782 (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.
ln 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. PeNnl CooE
Autt. $ 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." /d. SS 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." /d. S 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. /d. S 1.07(aXa6).
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, l'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. lt 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. Sfafe, 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.
Sfafe, 939 S.W.2d 232,238 (Tex. App.-Austin 1997, pet. refd) (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.
lV. Gonclusron
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice
Do not publish.
Trx. R. App. P. 47.2(b).
Delivered and filed the
19th day of November, 2015.
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