IN THE TENTH COURT OF APPEALS
No. 10-07-00285-CR
CHERYL ARNOLD, Appellant v.
THE STATE OF TEXAS, Appellee
From the 82nd District Court Robertson County, Texas Trial Court No. 06-10-18167-CR
MEMORANDUM OPINION
A jury convicted Cheryl Arnold of murder and sentenced her to ten years and
one day in prison. On appeal, Arnold contends that: (1) the trial court erred by denying
her requests for contemporaneous limiting instructions; (2) the trial court erred by
failing to incorporate self-defense in the application paragraph of the jury charge; (3) the
evidence is factually insufficient to support her conviction; and (4) the prosecutor
engaged in prosecutorial misconduct. We affirm. FACTUAL BACKGROUND
Arnold was visiting a campsite during a rodeo at the local fairgrounds. Sam
Pharms, Arnold’s co-worker, and his wife Shondra had parked their RV at the campsite.
Charles Franklin and his sister Angel Williams were also visiting the campsite.
Arnold first encountered Williams when Franklin told Williams to exit his Jeep
so that he could take Arnold to retrieve some items from her car. Williams had been
sleeping and gave Arnold a “dirty look.” Franklin and Arnold next encountered
Williams during their return to the campsite. Arnold described Williams as “rude,”
having ignored her request for a cigarette and complained about the brand of beer in
Arnold’s cooler. Williams took a beer and gave Arnold a cigarette.
Later that evening, Arnold caught Williams yelling at her five-year-old daughter.
Arnold told Williams, “She’s okay. She’s alright.” When she learned that Williams was
again “bothering” her daughter, she felt angry and intended to stop the situation. She
first approached Franklin, but he referred her to Williams.
The record contains differing versions of what occurred next. According to
Arnold, she confronted Williams, who was seated, and they exchanged words.
Williams stood, Arnold backed away, and Williams pushed Arnold into a pile of trash
bags. Arnold looked up and saw Williams holding a knife. Arnold raised her hands,
fearing that Williams would kill her. A struggle ensued, and Arnold managed to obtain
the knife. When the fight ended, Williams walked away. Arnold sustained a cut on her
left hand. Shondra took her inside the RV. Arnold called 9-1-1 several times because
Arnold v. State Page 2 the calls kept failing. She testified that she did not intend to kill Williams, but wanted
to prevent Williams from harming her.
According to Franklin, Arnold hit Williams with a hard blow that sounded like a
fist. Williams stood, and a fight ensued. Arnold fell when the women neared the trash.
Franklin ran over and grabbed Williams. Arnold entered the RV. Franklin applied
pressure to a cut on Williams’ neck and waited for the paramedics. He believed that
about sixty seconds elapsed between the initial confrontation and the end of the fight.
He never saw either woman with a knife. He had heard about Williams’ involvement
in other fights, but was not aware that she carried a knife. He admitted that Williams
sometimes has a volatile temper.
Shondra testified that she did not see Arnold strike Williams. However, she had
briefly turned away and when she turned back, she saw Williams swing at Arnold.
Arnold stumbled into the trash, and Williams fell on top of her. When the fight ended,
Shondra told Arnold to give her the knife, took the knife from Arnold, and led Arnold
inside the RV. She threw the knife in the sink. She left Arnold inside the RV, and when
she later returned, the knife was missing. She did not know who owned the knife, had
never seen it before, and never saw it again. She denied seeing Arnold with a knife, but
testified that Arnold may have retrieved the knife from her pants pocket. Shondra did
not believe that she cut Arnold when taking the knife away after the fight, but admitted
that it was possible. Arnold did not recall Shondra taking the knife.
Alfrika Bosley, Shondra’s daughter, was inside the RV with Arnold when she
went to confront Williams. Bosley heard Arnold say that she was going to “handle it”
Arnold v. State Page 3 and saw Arnold pat her back pocket. She did not “directly” see a knife. Bosley
watched through the RV window as Arnold approached Williams. She briefly stepped
away from the window, and when she returned, she saw Arnold backing away as
Williams stood. Bosley did not see Arnold strike Williams. Williams either hit or
pushed Arnold, causing Arnold to fall into the trash. Arnold was swinging her hands
like a “windmill.” Bosley did not see Williams with a knife, but saw Arnold with a
knife after the fight. She did not see Shondra take a knife from Arnold.
Charlene Gilbert was inside her RV when she heard “screaming and hollering.”
She went outside and saw Arnold standing by the trash holding a knife with a long
blade, a kitchen knife, but she could not identify the knife because Arnold was holding
the handle with both hands. Shondra ran over to Arnold and told Arnold to give her
the knife. Shondra and Arnold went behind the RV, both holding the knife. Yet,
Gilbert testified that she saw Shondra take the knife from Arnold. Shondra’s method of
removing the knife led Gilbert to believe that Arnold was cut at that time. Shondra and
Arnold returned from behind the RV, without the knife, and went inside the RV.
Angela Sweed was returning to the campsite when she heard Shondra
screaming. Arnold was lying on the trash bags. Shondra was standing over Arnold
and yelling for the knife. Arnold was “waiving [the knife] back” as though trying to
prevent Shondra from retrieving it. Franklin ran over and placed his hand on
Williams’s neck. Sweed helped Franklin carry Williams to a vehicle.
Arnold v. State Page 4 Investigator Joe Davis testified that Arnold’s long acrylic fingernails were all
intact.1 She showed no signs of intoxication. After taking Arnold’s statement, Davis
had no information to indicate anything other than self-defense. In fact, Arnold told the
9-1-1 dispatcher that she was in a fight with a “girl who tried to stab me,” that she was
attacked, and that she was knocked into some trash bags. Davis described Arnold’s
voice on the 9-1-1 tape as “relaxed, not excited, not a whole lot of emotion”, not like a
person who had just taken a knife away from someone and stabbed or killed another
person. Davis did not see a knife inside the RV.
Deputy Keith Foltermann testified that Arnold seemed upset. She complained
about having problems with Williams all day and claimed that Williams attacked her
with a knife, knocking her into the trash bags, that she took the knife from Williams,
and that she must have stabbed Williams during the fight. Foltermann opined that this
story was consistent with self-defense. Arnold told Foltermann that she believed she
was cut before obtaining the knife, but admitted that she could have been cut when
taking the knife from Williams. She did not know the knife’s whereabouts, but had
probably dropped it outside. Foltermann believed there was a “steak knife, like a -- not
a -- a kitchen-type knife, like a butcher knife” in the sink inside the RV.
Dr. Reade Quinton testified that Williams suffered stab wounds to the left side of
her neck and to her left side “midway between the chest and the abdomen.” The neck
wound penetrated the jugular vein, causing blood loss, and the trachea, causing
difficulty breathing. Williams’s blood alcohol content was .28 and she had ingested
1 Arnold testified that she was wearing solar nails, which can last longer.
Arnold v. State Page 5 both hydrocodone and marihuana. Quinton opined that Williams’s neck wound was
consistent with being seated at the time of the blow. She could still stand, but would
lose consciousness in a “minute or less.” Williams’s wounds were also consistent with
being stabbed while lying on the ground or being on top of someone. Quinton
concluded that the wounds were Williams’s cause of death.
Police never recovered the knife used during the fight. Shondra gave Davis a
kitchen knife that she kept in the RV. Neither Arnold’s nor Williams’s DNA was found
on the knife. Davis opined that the kitchen knife was either not used during the fight or
had been thoroughly cleaned. He believed that the kitchen knife was used during the
fight. The State admitted the kitchen knife into evidence.
Shondra, Bosley, and Arnold all testified that the kitchen knife was not used
during the fight. Shondra testified that the actual knife had two handles and one blade.
Bosley testified that the kitchen knife was in the sink when Arnold confronted Williams
and was still there when Arnold returned. Arnold testified that the knife had a split
handle and was similar to a butterfly knife.
FACTUAL SUFFICIENCY
Arnold’s third point challenges the factual sufficiency of the evidence to support
the jury’s rejection of self-defense.
Standard of Review and Applicable Law
Self-defense is justified when a person “reasonably believes” that force is
“immediately necessary” to protect himself “against the other’s use or attempted use of
unlawful force.” See TEX. PEN. CODE ANN. § 9.31(a) (Vernon Supp. 2008). Use of deadly
Arnold v. State Page 6 force is warranted where self-defense is justified under Section 9.31, a reasonable person
would not have retreated,2 and deadly force is reasonably necessary to protect himself
against another’s use or attempted use of deadly force. See Act of May 16, 1995, 74th
Leg., ch. 235, § 1, 1995 Tex. Gen. Laws 2141 (amended 2007) (current version at TEX.
PEN. CODE ANN. § 9.32 (Vernon Supp. 2008)); Bumguardner v. State, 963 S.W.2d 171, 173
(Tex. App.—Waco 1998, pet ref’d). When a defendant challenges the factual sufficiency
of the rejection of a claim of self-defense, we review all the evidence in a neutral light
and ask whether the State’s evidence, taken alone, is too weak to support the finding
and whether the proof of guilt, although adequate if taken alone, is against the great
weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.
Crim. App. 2003).
Analysis
Arnold points to nine pieces of evidence to support her contention that the jury’s
rejection of her self-defense claim is against the great weight and preponderance of the
evidence. First, no one saw Arnold in possession of a knife before the fight. Witnesses
did, however, see Arnold in possession of the knife after the fight. Second, the kitchen
knife was too large to be concealed in a pocket. Shondra, Arnold, and Bosley all
testified that the kitchen knife was not used during the fight. Arnold also identified a
different knife as similar to the one she had used. Third, Arnold testified that Williams
2 The “retreat” portion of section 9.32 was deleted by the legislature in 2007 but was still in effect at the time of the offense. See Act of March 20, 2007, 80th Leg., ch. 1, §§ 3, 5, 6, 2007 Tex. Gen. Laws 1, 2.
Arnold v. State Page 7 approached her with a knife. Yet, no one other than Arnold saw Williams in possession
of a knife.
Fourth, Franklin’s testimony that Arnold stuck Williams while she was seated is
inconsistent with Quinton’s testimony that the neck wound “would bleed pretty
profusely”, as no blood was found near Williams’ chair. Fifth, Franklin’s testimony that
he had to pull Williams away from Arnold after a minute-long fight is inconsistent with
Quinton’s testimony that a person with a neck wound could function for about thirty
seconds to a minute. We first note that Franklin did not see Arnold stab Williams with
a knife, but testified that the blow sounded like a fist. According to Quinton, that
Williams was stabbed while seated was merely “one possibility.” The wound could
have been inflicted while Williams was on the ground or on top of Arnold. Quinton
testified that if the blood were “free-flowing,” the person could still function, but would
lose consciousness in a minute or less and could possibly lose blood even faster if
fighting. As for how the wound could affect mobility, Quinton testified that
“adrenaline can change the pattern.”
This testimony supports a finding that Arnold could have stabbed Williams
while she was seated. Williams could possibly function for up to one minute after
being stabbed. The shortness of the fight indicates that Williams could still be
conscious, requiring Franklin to pull her away from Arnold. Sweed testified that
Williams had not begun bleeding at the time that she helped Franklin carry Williams to
a vehicle where Williams subsequently “passed away.” The evidence also supports a
finding that Arnold could have struck Williams with her fist while she was seated and
Arnold v. State Page 8 then stabbed her during the fight itself. Either possibility explains the absence of blood
near Williams’ chair and Williams’ ability to continue fighting after being stabbed.
Sixth, Franklin testified that Williams had a volatile temper, could “handle
herself in a fight,” and “[w]ouldn’t take B.S.” Seventh, Williams was intoxicated and
had ingested both hydrocodone and marihuana. Davis testified that a person with a
bad temper who is intoxicated and had ingested a narcotic could become more
combative. While Williams’s volatile tendencies and intoxicated state might have made
her more combative, they do not establish that she was the possessor of a knife.
Eighth, Quinton and Davis both testified that the cut on Arnold’s hand was
consistent with a defensive wound. However, the wound also could have been caused
by Shondra removing the knife from Arnold’s hand or, given the struggle for the knife,
perhaps Arnold was injured while taking the knife from Williams or when stabbing
Williams with the knife. Davis testified that the cut could have been self-inflicted, could
have occurred if Arnold switched hands during the fight, or could have been caused by
a person taking the knife from her.
Finally, Arnold contacted 9-1-1 after the fight and cooperated with the police.
That she did not flee from police or contacted 9-1-1 is not conclusive evidence of self-
defense. See Baxter v. State, No. 06-07-00054-CR, 2007 Tex. App. LEXIS 9161, at *9 (Tex.
App.—Texarkana Nov. 21, 2007, no pet.) (not designated for publication) (not fleeing
does not constitute “substantial evidence” of innocence).
The pieces of evidence pinpointed by Arnold emphasize conflicts in the record
regarding: (1) Williams’ position at the time she was stabbed in the neck; (2) the type of
Arnold v. State Page 9 knife used to stab Williams; (3) the point at which Arnold was in possession of the
knife; and (4) how Arnold received the cut to her left hand. However, it was within the
jury’s province to resolve such conflicts and decide which version of the events to
believe. See Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000); see also
Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). In doing so, the jury could
reasonably conclude that Arnold did not act in self-defense. Reviewing the record
under the appropriate standard, we find the evidence factually sufficient to support the
jury’s rejection of Arnold’s self defense claim. See Zuliani, 97 S.W.3d at 595. We
overrule Arnold’s third point.
CONTEMPORANEOUS LIMITING INSTRUCTION
In her first point, Arnold challenges the trial court’s denial of several
contemporaneous limiting instructions that she requested during her own testimony, as
well as that of Shondra and Bosley.
Applicable Law
Rule of Evidence 105 provides: “When evidence which is admissible as to one
party or for one purpose but not admissible as to another party or for another purpose
is admitted, the court, upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly…” TEX. R. EVID. 105(a). “[T]he language of Rule 105(a)
requires, upon proper request, a limiting instruction to be given at the time the evidence
is admitted.” Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). “[A] trial
court does not have discretion to postpone giving a properly requested limiting
instruction when that request is made at admission of the evidence.” Id. We review a
Arnold v. State Page 10 trial court’s refusal to give a limiting instruction under an abuse of discretion standard.
See Shea v. State, 167 S.W.3d 98, 103-04 (Tex. App.—Waco 2005, pet. ref’d).
Shondra’s and Bosley’s Testimony
Arnold requested several contemporaneous limiting instructions on the basis of
prior inconsistent statements during Shondra’s and Bosley’s testimony.
A witness’s prior inconsistent statement may be used for impeachment. See
Willover v. State, 70 S.W.3d 841, 846 n.8 (Tex. Crim. App. 2002); see also TEX. R. EVID.
613(a). Because such statements are hearsay, “unless they fall within some hearsay
exception, they are admissible for impeachment purposes only (as opposed to
substantive purposes).”3 Willover, 70 S.W.3d at 846 n.8. Jurors “may consider the
inconsistency as damaging to the witness’s credibility, but may not use the evidence
substantively.” Adams v. State, 862 S.W.2d 139, 148 (Tex. App.—San Antonio 1993, pet.
ref’d).
Shondra testified that Davis had suggested that the kitchen knife was used
during the fight. She did not recall her prior statement, but remembered telling Davis
that she saw the knife. She testified to taking the knife from Arnold. Arnold requested
a limiting instruction. The trial court denied the request. Shondra admitted telling
Davis that she took the knife from Arnold. Arnold again requested a limiting
3 A prior inconsistent statement is not hearsay where the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is: (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding except a grand jury proceeding in a criminal case, or in a deposition; (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; (C) one of identification of a person made after perceiving the person; or (D) taken and offered in a criminal case in accordance with Code of Criminal Procedure article 38.071 [Testimony of Child Who Is Victim of Offense]. TEX. R. EVID. 801(e)(1).
Arnold v. State Page 11 instruction, which the trial court denied. Her request for a running objection to the lack
of a limiting instruction was granted.
Outside the jury’s presence, the trial court noted Shondra’s difficulty
remembering and apparent desire not to testify.4 The trial court asked when a limiting
instruction should be given. Arnold requested a contemporaneous instruction. The
trial court inquired about an instruction advising the jury that a witness can be
impeached with a prior inconsistent statement, but that such may only be considered
when assessing the witness’s credibility. Arnold confirmed that she was requesting
such an instruction. Both Arnold and the State agreed that such an instruction is
applicable only as to testimony with which the witness is impeached.
When Shondra denied telling Davis that she saw Arnold retrieve the knife from
her pants pocket, the State asked about her prior statement that “[Arnold] pulled it [the
knife] from, I guess you know, cause she had her hand back like this, so.” Shondra
explained that she thought Arnold might have retrieved the knife from her pocket
“[b]ecause she had her hands back and I assumed that’s where it came from.” The trial
court denied Arnold’s request for a limiting instruction, but granted her request for a
running objection.
Shondra next testified that investigator Brian Bancroft was one of the men who
threatened her when obtaining her statement.5 She subsequently expressed doubt that
Bancroft was one of the men. The prosecutor referred to her statement and asked
4 Shondra gave police several different statements, initially denying that she saw anything.
5 Shondra alleged that she was threatened by investigators.
Arnold v. State Page 12 Shondra to “follow along” with him. Arnold requested a limiting instruction on the
“proper use of impeachment testimony.” The trial court stated that a limiting
instruction would be given in the charge and granted Arnold a running objection.
Bosley testified to hearing Arnold state her intention to “handle it” before
confronting Williams. The State began to ask about a previous statement when Arnold
requested a limiting instruction. The trial court denied the request, but granted a
running objection. The State then asked Bosley if she recalled telling Davis that Arnold
had a knife. Bosley denied doing so. Over Arnold’s objection, the trial court gave the
State permission to play a portion of Bosley’s recorded statement. Bosley again denied
saying that Arnold had a knife. Arnold requested a limiting instruction to accompany
playing of the tape. The trial court stated that an instruction would be included in the
charge and granted a running objection. After the tape was played, Bosley admitted
saying that Arnold had a knife in her back pocket, but testified that she did not “directly
know that Cheryl [Arnold] came out of our RV with a knife.” She merely saw Arnold
touch her back pocket when exiting the RV to confront Williams.
Bosley later testified that the kitchen knife was not the knife that she said Arnold
had in her possession. The State sought to admit the entire tape of Bosley’s statement.
Arnold requested an instruction limiting the jury’s consideration of prior inconsistent
statements for purposes of credibility and not as evidence of guilt. The trial court stated
that the instruction would be included in the charge. The entire tape was admitted into
evidence.
Arnold v. State Page 13 The State argues that contemporaneous limiting instructions were not required
because “confrontation of the witnesses with the prior inconsistent statement caused
both witnesses to modify their in court testimony to include all but one detail of the
prior statements.” However, where “a witness only qualifiedly or partially admits to
making a prior inconsistent statement, the statement may be used to impeach him.”
Staley v. State, 888 S.W.2d 45, 49 (Tex. App.—Tyler 1994, no pet.) (citing McGary v. State,
750 S.W.2d 782 (Tex. Crim. App. 1988)). Shondra’s and Bosley’s prior statements do
not fall within any hearsay exception and so were admissible for impeachment
purposes only. See Willover, 70 S.W.3d at 846 n.8; see also TEX. R. EVID. 801(e)(1).
The risk that the jury would consider the testimony as substantive evidence of
Arnold’s guilt warranted a contemporaneous limiting instruction. See Rankin v. State,
974 S.W.2d 707, 712 (Tex. Crim. App. 1996) (“If limiting instructions impede the
improper use of evidence, then an instruction given when the evidence is admitted
limits that evidence to its proper scope immediately. An instruction given for the first
time during the jury charge necessarily leaves a window of time in which the jury can
contemplate the evidence in an inappropriate manner.”); see also Hammock, 46 S.W.3d at
894. The trial court erroneously denied Arnold’s requests for such instructions.
The failure to give a timely limiting instruction pursuant to Rule 105(a) is
nonconstitutional error. See Jones v. State, 119 S.W.3d 412, 423-24 (Tex. App.—Fort
Worth 2003, no pet.). We may not reverse for nonconstitutional error unless, after
examining the record as a whole, we have a “fair assurance that the error did not have a
substantial and injurious effect or influence in determining the jury’s verdict.” Garcia v.
Arnold v. State Page 14 State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). We disregard any error that does not
affect the defendant’s substantial rights. See TEX. R. APP P. 44.2; see also TEX. R. EVID.
103(a).
The State did discuss the prior inconsistent statements during closing argument.
The State described Shondra as a “difficult witness” who did not want to get involved
and a “recalcitrant witness,” but who testified that she did not see Williams with a
knife, she did see Arnold with a knife, she took the knife from Arnold, she placed the
knife in the RV, and she later returned to find the knife missing. The State noted that
Bosley heard Arnold say that she had a knife and planned to “take care of it” and saw
Arnold pat her pocket.6
The defense reminded the jury that neither Shondra’s nor Bosley’s prior
inconsistent statements could be used to determine guilt. Counsel mentioned Bosley’s
prior inconsistent statement regarding whether she saw Arnold leave the RV with a
knife. Counsel further informed the jury that witnesses, such as Shondra and Bosley,
are ”tugged in many different ways”, “[i]t is not unusual for these types of witnesses
not to want to get involved in the case, for various reasons,” and investigators
pressured both witnesses. Counsel explained that Davis suggested to Shondra that the
6 Arnold contends that the record does not show that Bosley ever heard Arnold make such a statement; thus, the State was improperly attempting to “treat a prior inconsistent statement as substantive evidence.” See Hughes v. State, 4 S.W.3d 1, 3-5, 7 (Tex. Crim. App. 1999) (The State is barred from using “prior inconsistent statements under the guise of impeachment for the primary purpose of placing substantive evidence before the jury which is not otherwise admissible”). This rule normally applies to the admission of impeachment evidence, requiring the trial court to consider the “State's knowledge that its own witness will testify unfavorably.” Id. at 5. Moreover, when the prosecutor made this argument, Arnold merely objected that the evidence was outside the record because Bosley had not testified to these facts. See Hardeman v. State, No. 10-01-00269-CR, 2003 Tex. App. LEXIS 5020, at *7-8 (Tex. App.—Waco June 11, 2003, pet. ref’d) (not designated for publication) (Hardeman objected to “hearsay,” not to a Hughes violation; he failed to preserve a Hughes complaint for appeal.).
Arnold v. State Page 15 kitchen knife was used during the fight and that Shondra lied to the police because she
was afraid. Counsel stated that Bosley was warned about being charged with a crime
and so would have agreed to anything. He stated that Davis placed pressure on
Shondra and Bosley so that they would “agree to the suggested questions that he was
asking.” The defense argued that the State’s witnesses “weaved a tangled web of
inconsistency.”
We have already determined that the evidence is factually sufficient to support
the jury’s rejection of Arnold’s self-defense claim. Absent from the inconsistent
statements provided by Shondra and Bosley, the record contains other evidence from
which the jury could infer that Arnold did not act in self-defense. See Berry v. State, No.
05-04-01161-CR, 2005 Tex. App. LEXIS 4960, at *8 (Tex. App.—Dallas June 28, 2005, no
pet.) (not designated for publication) (in the absence of a limiting instruction, the record
contained “evidence, independent of the prior inconsistent statements, to prove the
assault”). Additionally, the trial court’s charge instructed the jury that a witness’s prior
inconsistent statement could only be considered for impeachment purposes to asses the
witness’s credibility.7 This “reduced the risk the jury might misuse the evidence during
jury deliberations.” Jones v. State, 944 S.W.2d 642, 654 (Tex. Crim. App. 1996).
7 The instruction states:
You are instructed that a witness may be impeached by showing that he or she has made other and different statements out of court from those made before you at the trial. Such impeachment evidence may be considered by you to aid you in determining if it does so, the weight, if any, to be given the testimony of the witness at trial and his or her credibility, but such impeaching evidence, if any, is not to be considered as tending to establish the alleged guilt of the defendant in such case.
Arnold v. State Page 16 After examining the record as a whole, we have a fair assurance that the trial
court’s error in failing to give instructions contemporaneously with the admission of the
statements did not influence the jury, or had but a slight effect.
Arnold’s Testimony
At a hearing outside the jury’s presence immediately before Arnold testified, the
trial court authorized the State to ask Arnold about a pending marihuana charge and a
terroristic threat conviction. Arnold’s request for a limiting instruction was denied. 8
The trial court stated that a similar instruction would be given in the charge.
We first note that the State presented no evidence of Arnold’s pending
marihuana charge. Because the evidence was never admitted, a contemporaneous
limiting instruction was not required. See Hammock, 46 S.W.3d at 894; see also Taylor v.
State, No. 10-01-00109-CR, 2004 Tex. App. LEXIS 2338, *13-14 (Tex. App.—Waco Mar.
10, 2004, pet. ref’d) (not designated for publication) (finding no error where the trial
court denied contemporaneous limiting instructions in cases where no evidence of an
extraneous offense was presented).
8 The defense specifically requested the following instruction:
You are instructed that evidence offered by the State that the defendant has previously been convicted of an offense other than the one on trial in this case, cannot be considered by you for the purposes of determining the guilt or innocence of the defendant concerning the offense on trial in this case unless you first find beyond a reasonable doubt that she was convicted of a different offense, and then only for the sole purpose of assisting you, if it does, in determining the credibility of the said Cheryl Arnold as a witness in this case and for no other purpose.
The trial court’s jury charge included an instruction on extraneous offense evidence for purposes of rebutting the defensive claim of self-defense.
Arnold v. State Page 17 The defense first raised the terroristic threat conviction during Arnold’s direct-
examination. Arnold pulled a pocket knife from her back pocket during an altercation
with a woman at a restaurant. She never opened the pocket knife. On cross-
examination, the State asked whether Arnold received a sixty-day sentence for the
conviction. The trial court then denied Arnold’s request for a contemporaneous
instruction limiting consideration of the evidence to the purpose of rebutting a
defensive theory, stating that the appropriate instruction would be submitted in the
charge. Arnold admitted that, according to the police report, she “pulled her knife to
make sure she wouldn’t lose the fight.”
The trial court erred by denying Arnold’s request for a contemporaneous
limiting instruction regarding the terroristic threat conviction. See Lemmons v. State, 75
S.W.3d 513, 525 (Tex. App.—San Antonio 2002, pet. ref’d) (trial court erred by denying
defendant’s request for a contemporaneous limiting instruction on extraneous offense
evidence). However, we find the error to be harmless.
During closing argument, the prosecutor explained that it had shown that
Arnold was convicted, beyond a reasonable doubt, of the terroristic threat conviction.
The prosecutor further argued that the conviction involved another incident where
Arnold pulled a knife from her back pocket and, although Arnold disclosed the offense
to police, she did not provide the details. He described the situation as “someone
bringing a knife to a fight that they started themselves, to make sure they wouldn’t lose
the fight, and they didn’t.” The defense also discussed the conviction, arguing that it
occurred nine years earlier and was “bad judgment.”
Arnold v. State Page 18 The trial court’s charge instructed the jury that extraneous offenses could not be
considered as evidence of Arnold’s guilt, but solely to rebut the defensive claim of self-
defense.9 See Jones, 944 S.W.2d at 654. The evidence was presented “toward the end of
trial”; thus, “there was a relatively short interval between the introduction of the
evidence and the trial court’s reading of limiting instructions in the court’s charge.”
Jones, 119 S.W.3d at 424. The terroristic threat conviction was not “more heinous or
inflammatory than the charged offense, minimizing its prejudicial effect even in the
absence of a contemporaneous limiting instruction.” Gregory v. State, 159 S.W.3d 254,
262 (Tex. App.—Beaumont 2005, pet. ref’d). The evidence was such that, even without
evidence of the conviction, the jury could have rejected Arnold’s self-defense theory.
Our review of the entire record gives us fair assurance that the trial court’s error did not
influence the jury, or had but a slight effect.
Because we hold that the trial court’s errors were harmless, we overrule Arnold’s
first point.
SELF-DEFENSE
In her second point, Arnold complains that the trial court erred by failing to
include self-defense in the application paragraph of the jury charge.
9 The charge states:
You are instructed that evidence offered by the State that the defendant has previously been convicted of an offense or has committed a different offense, other than the one on trial in this case, cannot be considered by you for the purpose of determining the guilt or innocence of the defendant concerning the offense on trial in this case, unless you first find beyond a reasonable doubt that she was convicted of the offense or committed the different offense and then only for the sole purpose of assisting you, if it does, in rebutting the defensive claim of self-defense, and for no other reason.
Arnold v. State Page 19 Applicable Law
A jury charge must contain: (1) “an application paragraph specifying all of the
conditions to be met before a conviction [] is authorized”; (2) “an application paragraph
authorizing a conviction under conditions specified by other paragraphs of the jury
charge to which the application paragraph necessarily and unambiguously refers”; or
(3) “some logically consistent combination of such paragraphs.” Plata v. State, 926
S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds, 953 S.W.2d 234 (1997);
Degrate v. State, 86 S.W.3d 751, 753 (Tex. App.—Waco 2002, pet. ref’d).
The trial court’s jury charge is divided into several sections. Section three applies
the elements of the offense to the facts of the case, but makes no mention of self-defense:
Now if you find from the evidence beyond a reasonable doubt that on or about the 17th day of September, 2006, in Robertson County, Texas, the defendant, CHERYL ARNOLD, did then and there, with intent to cause serious bodily injury to an individual, namely, ANGEL WILLIAMS, commit an act clearly dangerous to human life that caused the death of said ANGEL WILLIAMS, by stabbing her in the neck with a knife (and that said knife was then and there a deadly weapon) as set forth in the indictment, then you will find the defendant, CHERYL ARNOLD, guilty of murder as charged in the indictment.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt as to whether defendant is guilty of murder, then you will find her not guilty.
However, section five of the charge includes both abstract and application paragraphs
regarding self-defense. The application paragraphs state:
So, if you find from the evidence beyond a reasonable doubt that the defendant, CHERYL ARNOLD, did kill ANGEL WILLIAMS by stabbing her in the neck with a knife, as alleged, but you further find from the
Arnold v. State Page 20 evidence, or you have a reasonable doubt thereof, that viewed from the standpoint of the defendant at the time, from the words or conduct or both, of deceased, it reasonably appeared to defendant that her life or person was in danger and there was created in her mind a reasonable expectation or fear of death or seriously bodily injury from the use of unlawful deadly force at the hands of the deceased, and that acting under such apprehension and reasonably believing that the use of deadly force on her part was immediately necessary to protect herself against ANGEL WILLIAMS use or attempted use of unlawful deadly force, she stabbed the deceased in the neck with a knife, and that a reasonable person in defendant’s situation would not have retreated, then you will find the defendant not guilty.
…
Now, bearing all of the foregoing instructions in mind, if you find from the evidence that the defendant, CHERYL ARNOLD was acting in self defense against ANGEL WILLIAMS, or if you should have a reasonable doubt thereof, then defendant would be guilty of no offense and you will find the defendant not guilty.
Arnold did not object to either section three or section five of the charge.
The trial court’s application paragraphs are “logically consistent,” requiring the
jury to first determine whether the State had proved the elements of the offense beyond
a reasonable doubt and, if so, to then determine whether Arnold acted in self-defense.10
See Smith v. State, No. 2-05-207-CR, 2006 Tex. App. LEXIS 5750, at *14-17 (Tex. App.—
Fort Worth June 29, 2006, no pet.) (not designated for publication) (jury charge was “not
illogical or confusing” where first application paragraph required jury to first determine
whether the State established Smith’s guilt beyond a reasonable doubt and second
application paragraph instructed jury on the defense of justification); see also Wingo v.
State, 143 S.W.3d 178, 190 (Tex. App.—San Antonio 2004), aff'd, 189 S.W.3d 270 (Tex. 10 Combining self-defense in a single application paragraph is also an appropriate method. See ELIZABETH BERRY, GEORGE GALLAGHER & PAUL MCCLUNG, 1 TEXAS CRIMINAL JURY CHARGES § 3.1870 (2008).
Arnold v. State Page 21 Crim. App. 2006) (“We do not believe the trial court’s arrangement of the jury charge
was illogical or that placing the defensive instructions after the application paragraph
was the only logical arrangement.”). The paragraphs need not have been combined.
See Peterson v. State, No. 05-99-01054-CR, 2001 Tex. App. LEXIS 4736, at *11-12 (Tex.
App.—Dallas July 12, 2001, no pet.) (not designated for publication) (rejecting
contention that “the trial court was required to include the elements of the offense and
the elements of any defensive issues into one application paragraph.”). We, therefore,
find no error in the jury charge and overrule Arnold’s second point.
PROSECUTORIAL MISCONDUCT
In Arnold’s fourth point, she alleges several instances of prosecutorial
misconduct: (1) misstating facts during cross-examination; (2) pretending to understand
that a witness testified to something that he or she did not and then cross-examining the
witness on that basis; (3) putting words into the witness’ mouths; (4) bullying and
arguing with witnesses; and (5) making misrepresentations regarding the law. Arnold
contends that the totality of these alleged errors “undermined the reliability of the
factfinding process and her right to a fair and impartial trial.”
To preserve error in cases of prosecutorial misconduct, the defendant must (1)
make a timely and specific objection; (2) request an instruction that the jury disregard
the matter improperly placed before the jury; and (3) move for a mistrial. Montoya v.
State, 43 S.W.3d 568, 572 (Tex. App.—Waco 2001, no pet.); see Cook v. State, 858 S.W.2d
467, 473 (Tex. Crim. App. 1993). Arnold did not object to many of the alleged acts of
misconduct. Of those to which she did object, she did not object on grounds of
Arnold v. State Page 22 prosecutorial misconduct. Nor did she request instructions to disregard. Accordingly,
Arnold has not preserved her complaint for appellate review. See Montoya, 43 S.W.3d at
572; see also TEX. R. APP. P. 33.1.
The judgment is affirmed.
FELIPE REYNA Justice
Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissents. A separate opinion will not issue.) Affirmed Opinion delivered and filed December 31, 2008 Do not publish [CR25]
Arnold v. State Page 23