Mary Jean Whipple v. State

• Court: Court of Appeals of Texas
• Decided: August 21, 2008
• Docket: 08-06-00202-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ MARY JEAN WHIPPLE, No. 08-06-00202-CR § Appellant, Appeal from § v. 384th District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC # 20030D05163) §

OPINION

Mary Jean Whipple appeals her conviction of murder. A jury found Appellant guilty and

assessed her punishment at imprisonment for ninety-nine years. Finding no error, we affirm.

FACTUAL SUMMARY

Appellant was convicted of murdering her seventy-one-year-old business partner,

Art Loustaunau, by shooting him in the chest with a firearm on August 7, 2003. In finding Appellant

guilty, the jury impliedly rejected Appellant’s claim of self-defense. Because Appellant challenges

the legal and factual sufficiency of the evidence supporting the jury’s rejection of her defensive

theory, we will set forth the evidence in considerable detail.

The Prior Relationship Between Appellant and Loustaunau

Loustaunau had been married to Pauline Loustaunau for forty-seven years at the time of his death. He and Appellant had operated a bingo hall together since 1994 or 1995. Appellant often

complained that he was short-changing her financially and owed her money. In addition to the

business relationship, Loustaunau had an affair with Appellant, who was about twenty years younger

than he and also married. In 2001, Appellant divorced her husband, James “Buck” Whipple. She

expected Loustaunau to divorce his wife so they could marry, but he did not do so. Appellant told

others before the shooting that she and Loustaunau were no longer romantically involved, but it is

not clear from the record when that aspect of their relationship ended.

In addition to her complaints about the business, Appellant accused Loustaunau of being

physically, emotionally, and sexually abusive. She claimed he used the knowledge that she had been

sexually abused by her father to manipulate her. Defense witness Mike Olivares, one of

Loustaunau’s business partners, testified that Loustaunau was dominant, manipulative, and verbally

abusive towards Appellant. The defense introduced into evidence a police report dated October 14,

2000 in which both Appellant and Loustaunau complained of being assaulted by the other.

But the State introduced evidence that Appellant had threatened to kill Loustaunau on more

than one occasion and had committed acts of violence against him. Albert Guerra recalled that

Appellant and Loustaunau argued most of the time they were together and Appellant often screamed

at Loustaunau. During one argument, he saw Appellant shove Loustaunau and kick the side of his

car. Guerra had also heard Appellant threaten to kill Loustaunau as well as herself.

Loustaunau’s son, Raymond “Bo” Loustaunau, testified that in 1998 or 1999, he was in

El Paso visiting his parents. His father received a telephone call indicating a problem at the office

and Bo accompanied him to check it out. Bo did not want to meddle in his father’s business so he

remained just outside the door in the hallway, but he could smell a strong odor of gasoline. When

-2- Loustaunau entered the office, Appellant yelled that he had ruined her life and she called him vulgar

names. When Bo heard his father grunt loudly as though he had been hit in the stomach, he entered

the room and found him down on the floor. Appellant was kicking him in the stomach and groin

while trying to strike a match to light the gasoline that she had poured throughout the office.

Loustaunau was terrified and unable to defend himself. Bo placed Appellant in a bear hug to prevent

her from setting his father and the office on fire. He picked her up and carried her to the couch and

held her down. Appellant continued to struggle and say “horrible things” to Loustaunau. To this

point, Bo did not know that Appellant and his father had been having an affair but Appellant’s

comments revealed this to be true. Bo said that it took all of his might to hold Appellant. His father

tried but was not successful in his efforts to calm Appellant. She did not calm down until her

husband arrived several minutes later.

Rene Gonzalez, another of Loustaunau’s business partners, testified that Appellant often

complained about Loustaunau. On one occasion, Appellant arrived at Loustaunau’s office with a

gun and threatened to kill both Gonzalez and Loustaunau before killing herself. It took Loustaunau

35 to 40 minutes to convince Appellant to put the gun away. Afterward, Loustaunau asked Gonzalez

to not call the police. On another occasion, Loustaunau learned that someone had crashed into his

car in the parking lot. He found Appellant sitting in her pickup a short distance away from his own

damaged car. Loustaunau confronted Appellant and they argued for a while before leaving together.

The Disappearance

The day before the shooting, Loustaunau had dinner with his cousin, Rafael Loustaunau.

Over a one and a half hour period, Appellant called Loustaunau’s cell phone eight to ten times.

Loustaunau did not answer any of the calls but his facial expressions indicated to Rafael that he was

-3- worried. Concerned about an argument he was having with Appellant, Loustaunau asked Rafael to

follow him home. Rafael did so and he waited outside until Loustaunau was safely inside.

The following day, Loustaunau, dressed in a sweat suit, left his house for the bingo hall at

6 a.m. as he typically did. Cell phone records showed that Appellant called Loustaunau’s cell phone

several times that morning between 7 and 8 a.m. He returned home shortly after 8 a.m. and told his

wife, Pauline, that he was going to the gym but he wanted to get a change of clothes in the event he

went straight to the office after his workout. Before he left, he asked Pauline to retrieve a manila

envelope containing money from their bedroom dresser drawer. Pauline got the envelope, which she

described as “bulky,” and gave it to him. Loustaunau left at around 8:45 a.m., and Pauline never saw

him again.

Albert Guerra, a bingo hall employee, spoke with Loustaunau on the phone sometime

between 9 and 9:30 that same morning. Loustaunau asked him to get some deposit books and checks

from his desk and meet him at Loustaunau’s house at 1 p.m. Guerra went to the house at 1, but

Loustaunau never showed up. Guerra talked with Pauline and left the deposit books and checks with

her. During the remainder of the day, Guerra tried to contact Loustaunau both in person and by

phone but he could not locate him. Pauline was not overly concerned when her husband did not

come home for dinner because he often worked late, but she became concerned when one of his

employees called that evening looking for him. She did not sleep at all that night and she began

looking for her husband early the following day.

Upset and worried, Pauline called Guerra at 7 a.m. the next morning and told him that

Loustaunau had not come home. Guerra told her he would make some calls and try to find him. He

immediately got in his truck and drove to Appellant’s house to look for Loustaunau. When Guerra

-4- pulled up in front of the house, he saw Appellant standing in the front yard watering her lawn. As

soon as she saw him and their eyes met, she dropped the hose and ran inside. He waited to see if she

would come back out, but she did not and he left. Guerra returned to the bingo hall and waited with

another of Loustaunau’s business associates, Hector Mena, to see if Loustaunau would show up. At

1 p.m., they called Bo in Fort Worth and told him that his father was missing. Bo caught the next

flight to El Paso and arrived at 6:30 that same evening. In the meantime, Guerra continued calling

Loustaunau’s cell phone. Before Bo arrived, Guerra drove to Appellant’s house again and noticed

that some of the vehicles had been moved around since that morning and a that motorcycle was in

the back of Appellant’s pickup. He did not see Appellant.

Upon hearing the news that his father was missing, Bo immediately suspected that Appellant

had killed his father based on her prior history of threats and violence. Shortly after arriving in

El Paso, Bo called the police department and reported his father as missing. A police officer went

to Appellant’s house but was unable to make contact with her. In the meantime, Bo met with

Guerra, Mena, and Rafael and put a plan together to look for Loustaunau. They looked at the phone

records and saw, based on the timing of the calls, that “everything pointed to [Appellant].” Bo called

Appellant several times but she did not answer. Consequently, he left messages telling her that his

father was missing and he was looking for him, but she did not return his calls. They also went to

Appellant’s house but she either was not at home or would not answer the door. Bo noticed that a

light had been turned on which led him to believe Appellant was in the house. Bo took Guerra,

Mena, and Rafael home at around 10:30 p.m., and then returned to Appellant’s house. He parked

two houses down where he was partially concealed by some bushes but still had a clear view of her

house. Bo remained there most of the night and left only for about an hour and a half to drive around

-5- looking for his father’s Lexus. He did not see any activity around the house the entire night. After

the sun came up, Bo drove to the gym where his father worked out but they had not seen him. He

also went to the Pebble Hills police substation to see if he could get some assistance. He informed

the police of his suspicions about Appellant but the sergeant he spoke with told him that they did not

have enough evidence to get a search warrant for her house. Bo then decided he would drill some

holes in Appellant’s garage door and look inside for his father’s Lexus. By the time he returned to

Appellant’s house with the drill, the police were there and they eventually made entry into the

house. Bo waited outside for a long while before he saw the detectives exit to get cameras and put

crime scene tape around the area. At that point he knew that his father’s body had been found and

one of the detectives confirmed that they had found a body.

Appellant’s Activities

While Guerra and others were looking for Loustaunau on Friday, August 8, Appellant spent

time with her friends, Brian and Stella Phelps. The couple was moving to Oregon and Appellant

agreed to help them move their motorcycle in her pickup. The Phelpses planned to leave Friday

afternoon and stop in Colorado Springs to visit with Stella’s parents. Appellant intended to leave

on Saturday and meet them in Colorado Springs before they traveled on to Oregon together.

Appellant arrived at the Phelpses’ house at around 2 on Friday afternoon and helped Stella clean.

She initially seemed fine but Stella noticed that Appellant was upset and agitated. Appellant began

to cry because she was worried that Loustaunau would see the motorcycle on her pickup. Stella told

Appellant not to worry about it. The Phelpses left the house sometime between 4 and 6 that same

evening.

-6- Appellant’s Statements to Teresa Gutierrez

On Saturday morning, August 9, Appellant’s friend, Teresa Gutierrez, was getting ready for

work. She was listening to her phone messages at 7:15 a.m. when she heard a message from

Appellant. Concerned that Appellant had called her so early, Gutierrez immediately returned the

call. Appellant sounded disoriented and asked if she could come over. Gutierrez said she was on

the way to her office and asked Appellant to meet her there. But Appellant was on foot so Gutierrez

picked her up. It was obvious to Gutierrez that Appellant had been crying and had not slept. When

Gutierrez asked what was wrong, Appellant began crying so hard that she could hardly speak. She

finally said that “a horrible accident had happened and that she had accidentally shot [Loustaunau].”

Gutierrez knew about Appellant’s relationship with Loustaunau. Gutierrez believed the shooting

had just happened and she said they should call the police and an ambulance. Appellant continued

to cry and finally said that they could not call an ambulance because he was dead. Appellant told

Gutierrez that she did not mean for it to happen, it was an accident, and she did not want to go to hell

for it. She also said she wanted to do the right thing. Gutierrez replied that they had to call the

authorities and tell them what happened. Appellant then explained to Gutierrez that she had

mutilated Loustaunau’s body and didn’t know why since she couldn’t stand the sight of her own

blood. At that point, Gutierrez suggested that Appellant speak with a pastor or someone who could

help her, and she thought of a psychologist she had seen on a professional basis, Dr. Karen Gold.

With Appellant’s permission, Gutierrez called Dr. Gold and made an appointment for 1:00 that

afternoon.

Gutierrez waited with Appellant and continued to talk with her before going to Dr. Gold’s

office. During this time, Appellant told Gutierrez that Loustaunau had come over to her house to

-7- mow the lawn but she did not want him to do it. Gutierrez did not know whether Loustaunau had

actually mowed the lawn, but at some point he went to the store and returned with some beer which

they drank. They began arguing because he did not want her to leave El Paso. Appellant had told

him she was traveling to Oregon with friends who were moving and she was going to look for work

while she was there. They also argued because he wanted to have sex with her before she left. As

they argued, Appellant walked down the hallway and retrieved a gun that she had on a shelf. She

told Gutierrez, “I did what I always do, Teri, I went and got my gun.” Gutierrez knew that Appellant

customarily threatened to kill herself when they fought, Loustaunau would calm her down and take

the weapon away, and they would come to terms with the issue causing the argument. Thus,

Gutierrez understood Appellant’s comment to mean that she got the gun intending to threaten to kill

herself. Appellant told Gutierrez that Loustaunau was standing close to her and the gun accidentally

fired. Appellant denied pulling the trigger and thought Loustaunau might have bumped into her

causing the gun to accidentally fire. She did not know whether the bullet had struck Loustaunau.

The gun shot startled both of them and they stood there staring at each other. Appellant took a step

back from Loustaunau and then he suddenly charged at her. She put her arm up over her face

because she believed Loustaunau was going to hit her but he suddenly fell to the floor. Gutierrez

asked Appellant whether she remembered pulling the trigger, and she said, “Well, I guess I did. She

said, Yes, I -- I -- I shot [Loustaunau] and he fell to the floor.” Appellant recalled Loustaunau telling

her it was not her fault and he knew it was an accident. Appellant did not know how many times she

shot him but thought it was once.

Appellant’s Statements to Dr. Karen Gold

Dr. Karen Gold is a clinical and forensic psychologist and a forensic consultant. On

-8- August 9, she received a telephone call from a patient, Teresa Gutierrez, around 7:30 a.m., advising

her that a friend wanted a consultation for crisis intervention. Dr. Gold scheduled the appointment

for 1:00 that afternoon. Upon their arrival, Dr. Gold took Appellant and Gutierrez into the therapy

area. Gutierrez stayed in the room at first to “break the ice” but she soon left and waited in the

kitchen. Dr. Gold asked Gutierrez to come back in the room and sit with Appellant on a few

occasions. Dr. Gold met with Appellant from 1 p.m. until about 7:40 p.m. that evening.

Appellant told Dr. Gold that she had done a terrible thing and wanted to make it right. She

had shot Art Loustaunau and wanted to know if Dr. Gold could help her. Loustaunau was dead and

his body was in her home. They were arguing about the proceeds of a business they operated jointly.

Dr. Gold told Appellant that she should get legal advice and she asked for Appellant’s permission

to try to contact a lawyer. Appellant agreed. Dr. Gold called several attorneys but only one, William

Ellis, was willing to come. While waiting for Ellis, Dr. Gold continued to talk with Appellant.

Appellant explained that she had been in a long-term relationship with Loustaunau and that he had

called her that morning wanting to come over to do some yard work. She resisted at first, but

eventually they worked in her yard together. After they finished, Loustaunau wanted to take her to

dinner, but Appellant didn’t feel like it. Loustaunau left to buy beer and steaks. When he returned,

they drank a significant amount of beer and began to argue about the money he owed her from their

business. Appellant told Dr. Gold that he owed her more than $20,000 and said she had been upset

about this for a long time. They also argued because she was leaving for Oregon and he wanted to

have sex with her before she left. Appellant told Loustaunau that part of their relationship was over

but he persisted. She said no and walked into a hallway near the kitchen. She looked down and saw

a gun in her right hand. As she was looking at the gun, it suddenly fired. When the gun discharged,

-9- Loustaunau was in the hallway near the kitchen. Appellant was surprised that Loustaunau continued

to approach her, but he did. She warned him not to come any closer or she would shoot him, but he

lunged at her and the gun fired twice more. After he fell to the floor, Appellant cried and asked for

his forgiveness. Loustaunau said, “I love you, Babe. Call 911.” After realizing that Loustaunau was

dead, Appellant became frightened and decided to get rid of the body. She told Dr. Gold that she

consulted a book on butchering and then cut up the body with a meat cleaver.1 Appellant said that

it took a long time to dismember the body because Loustaunau was a big man. She started

dismembering the body at dusk on Thursday and did not finish until the early hours of the following

morning. Appellant put the body parts in plastic bags and stored them in her freezer. Appellant also

explained to Dr. Gold that it was hard work but she had cleaned up all the blood. She then wandered

around aimlessly “catching catnaps in yards” until she phoned Gutierrez that morning. Appellant

was startled when she learned it was Saturday because she thought only twenty-four hours had

elapsed since the shooting. At some point, Appellant told Dr. Gold that there was a duffel bag in her

home containing $20,000 and she expressed concern about getting someone she trusted into the

house to retrieve it. She told Gutierrez that she wanted the money to be given to her mother.

William Ellis arrived at about 2:30 p.m. and met privately with Appellant. After Appellant

retained him, Ellis drafted a consent-to-search form which Appellant signed and Dr. Gold witnessed.

The consent-to-search was limited to the freezer in Appellant’s garage. Appellant told Ellis about

the bag of money in her house which was to be used as a retainer for his legal services. At

approximately 6 or 7 p.m., Ellis went to Appellant’s house and entered with some detectives. Ellis

1 W hen searching Appellant’s home pursuant to a search warrant, the police recovered a meat cleaver and a book entitled, “Basic Butchering.”

-10- and the detectives retrieved the duffel bag and counted the money in the kitchen. They determined

that the bag contained $21,041 and the money was turned over to Ellis. The detectives, in Ellis’

presence, then entered the garage and opened the freezer. Detective Arturo Ruiz saw several black

plastic bags and opened one. Upon seeing a human head, he replaced the bag in the freezer, declared

the house a crime scene, and ordered everyone out. He subsequently obtained a search warrant for

the premises and a warrant for Appellant’s arrest.

Appellant’s Statements to the Phelpses

Appellant called the Phelpses on Saturday, August 9, at 5 or 6 p.m. and told them she had

killed Loustaunau because he had tried to rape her. She was sorry that she could not bring them the

motorcycle. Stella knew that Appellant and Loustaunau had an affair in the past and that Appellant

was no longer romantically involved with him.

Examination of the Body

Dr. Corinne Stern, a forensic pathologist and the medical examiner, was called to Appellant’s

house on the morning of August 10 to remove body parts found in the freezer. She removed six

black plastic bags and one clear Zip-Lock bag containing a total of 110 body parts. At the morgue

on August 12, Dr. Stern reassembled the parts and determined that the torso and its internal organs

were missing. Detective Ruiz notified Appellant’s attorney, William Ellis, that the torso was

missing. The following day, Ellis accompanied the detectives to an area in the desert where

Appellant had told him the torso could be found. But the officers were unable to find it despite

looking for several hours. Appellant accompanied Ellis and the detectives the following day and she

showed them exactly where the torso was buried. The excavation process took several hours.

Dr. Stern subsequently examined the torso and determined that the cause of death was multiple

-11- gunshot wounds, two in the chest and one in the axilla or armpit. She also determined that one of

the gunshot wounds in the chest had a downward path indicating that Loustaunau had been shot

while bending over, lying on the ground, or kneeling. Due to the condition of the remains, Dr. Stern

could not determine the path of the second shot to the chest or the armpit, but the arm had to have

been raised when Loustaunau was shot in the armpit. Because there was no gunpowder stippling

around any of the wounds, Dr. Stern concluded that the gun was more than eighteen inches from the

body when fired.

Dr. Stern’s examination of the body revealed several antemortem injuries including bruises

on the arms and wrists and a laceration on one of the arms caused by blunt force trauma. She also

found a through-and-through puncture wound to the right forearm which had been caused by a sharp

instrument such as an ice pick or a screwdriver. She concluded that this wound had also been caused

while Loustaunau was still alive. Additionally, Dr. Stern noted postmortem lacerations on the

shoulders caused by a sharp instrument such as a knife, scalpel, or a cleaver. Dr. Stern recovered

enough liver tissue to run a complete drug and alcohol screen. Contrary to Appellant’s statements

that they had consumed a lot of beer, there was no alcohol in Loustaunau’s system.

Dr. Stern sent some of the bones to Dr. Harold Gill-King, a forensic anthropologist, for

examination. He determined that the long bone fragments and vertebrae fragments had been cut with

some type of manual saw with a straight blade approximately one millimeter wide. In his opinion,

a hacksaw found in Appellant’s garage was consistent with the class of saws that could have been

used to cut the bones.

The Defensive Evidence

Curtis Flynn, an accident reconstruction expert, was hired in 2005 to investigate a bullet hole

-12- in a cabinet door in Appellant’s kitchen that had been missed by the police in their investigation.

Flynn performed a trajectory analysis and determined that the shooter was standing in the hallway

and the gun was pointed downward. This evidence tended to support Appellant’s claim that the gun

accidentally discharged when she was in the hallway and holding the gun out to her side.

The defense also offered evidence that Appellant had suffered a brief reactive psychosis after

the shooting. Dr. Angel Rodriguez-Chevres, a psychiatrist, examined Appellant for competency and

sanity purposes. He concluded, based on his interview of Appellant and the records he reviewed,

that Appellant was so traumatized by the shooting that she disassociated from reality. In his opinion,

Appellant knew right from wrong at the time she shot and killed Loustaunau, but she was in a

psychotic state at the time of the dismemberment. The brief reactive psychosis could have ended

before she went to the Phelpses house the next day.

Another psychiatrist, Dr. Arthur Ramirez, offered his opinion that Appellant suffered from

Battered Woman Syndrome. Like Dr. Rodriguez-Chevres, he also opined that Appellant experienced

a break from reality during the dismemberment. During cross-examination, Dr. Ramirez said he was

surprised to learn that Appellant had been able to tell both Gutierrez and Dr. Gold about the

dismemberment as this would be inconsistent with a finding of brief psychotic episode.

LEGAL AND FACTUAL SUFFICIENCY

In Point of Error One, Appellant contends that the evidence is legally and factually

insufficient to support the jury’s rejection of her self-defense claim. Self-defense is a justification

for otherwise unlawful conduct. Giesberg v. State, 984 S.W.2d 245, 249 (Tex.Crim.App. 1998).

A person is justified in using force against another when and to the degree that she reasonably

believes the force is immediately necessary to protect herself against the other’s use or attempted use

-13- of unlawful force. TEX .PENAL CODE ANN . § 9.31(a)(Vernon Supp. 2007). A person is justified in

using deadly force against another (1) if she would be justified in using force against the other under

Section 9.31; (2) if a reasonable person in the actor’s situation would not have retreated; and (3)

when, and to the degree that she reasonably believes the deadly force is immediately necessary either

to protect herself against the other’s use or attempted use of unlawful deadly force or to prevent the

other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual

assault, robbery, or aggravated robbery. TEX .PENAL CODE ANN . § 9.32(a)(Vernon 2003). The Penal

Code defines “deadly force” as “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. at

§ 9.01(3).

An accused bears the burden of production with respect to defenses, requiring her to raise

evidence that supports the defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003);

Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Once the defendant has met this

burden, the State then shoulders the burden of persuasion to disprove the defense. Zuliani, 97

S.W.3d at 594. The burden of persuasion is not one that requires the production of evidence, rather

it requires only that the State prove its case beyond a reasonable doubt. Id. When a jury finds the

defendant guilty, there is an implicit finding against the defensive theory. Id.

Sufficiency Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must

review all the evidence, both State and defense, in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61

-14- L.Ed.2d 560 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). We do not

resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier

of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State,

819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the

explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted

at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any

inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

When an appellant challenges the legal sufficiency of the evidence supporting a fact finder’s

rejection of a non-affirmative defense, we look not to whether the State presented evidence that

refuted the appellant’s defense, but rather we determine whether after viewing all the evidence in the

light most favorable to the prosecution, any rational trier of fact would have found the essential

elements of the offense beyond a reasonable doubt and also could have found against the appellant

on the defensive issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914; Davidson v. State,

No. 08-04-00117-CR, 2006 WL 1036736, at *4 (Tex.App.--El Paso, April 20, 2006, no pet.)(not

designated for publication); Dotson v. State, 146 S.W.3d 285, 291 (Tex.App.--Fort Worth 2004, pet.

ref’d).

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view

all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481

(Tex.Crim.App. 2004). The only question to be answered in a factual sufficiency review is whether,

considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt

beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient:

(1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the

-15- finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and

contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong

that guilt cannot be proven beyond a reasonable doubt. Id. This standard acknowledges that

evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the

elements of the crime beyond a reasonable doubt. Id. at 485. In other words, evidence supporting

a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an

offense beyond a reasonable doubt. Id. In performing a factual sufficiency review, we are to give

deference to the fact finder’s determinations, including determinations involving the credibility and

demeanor of witnesses. Id. at 481. We may not substitute our judgment for that of the fact finder.

Id. at 482. When reviewing the factual sufficiency of the evidence in the context of the jury’s

rejection of a non-affirmative defense, we employ the Zuniga standard of review because once the

defendant has met her burden of production of evidence as to a defense, the State bears the burden

to prove the defendant’s guilt of the charged offense beyond a reasonable doubt. Roy v. State, 161

S.W.3d 30, 37 (Tex.App.--Houston [14th Dist.] 2004, no pet.); Dotson, 146 S.W.3d at 291. Thus,

we review all of the evidence in a neutral light and ask whether the State’s evidence taken alone is

too weak to support the finding of guilt beyond a reasonable doubt and weighing all of the evidence,

the evidence supporting the defense is strong enough that the fact finder’s rejection of the defense

does not meet the beyond-a-reasonable-doubt standard. Davidson, 2006 WL 1036736, at *4.

The legal and factual sufficiency standards of review are the same for cases based on direct

and circumstantial evidence. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000). In a

sufficiency review, however, the jury’s inference of intent is afforded more deference than the

evidence supporting proof of conduct, and circumstantial evidence of a defendant’s guilty knowledge

-16- is not “required to meet the same rigorous criteria for sufficiency as circumstantial proof of other

offensive elements.” Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The jury is

the exclusive judge of the credibility of the evidence on the self-defense issue and is free to believe

or disbelieve any or all of the defendant’s self-defense evidence. See Saxton, 804 S.W.2d at 914.

Appellant’s Argument

In this point of error, Appellant contends that she proved her self-defense claim by

overwhelming evidence and the State failed to refute it by producing evidence of premeditation. But

the State was not required to offer evidence of planning or premeditation either to prove that

Appellant murdered Loustaunau or to disprove her self-defense claim. Crane v. State, 786 S.W.2d

338, 349-50 (Tex.Crim.App. 1990). Appellant does not argue that the evidence is legally or factually

insufficient to prove that she intentionally caused Loustaunau’s death by shooting him with a

firearm. She argues only that the State failed to disprove her theory of self-defense. Thus, we will

restrict our review to that issue. For the jury to find Appellant acted in self-defense, it had to find

that (1) Appellant was justified in using deadly force against Loustaunau under Section 9.31; (2) a

reasonable person in Appellant’s situation would not have retreated; and (3) she reasonably believed

the deadly force was immediately necessary to prevent Loustaunau’s imminent commission of sexual

assault. See TEX .PENAL CODE ANN . at § 9.32(a).

Duty to Retreat

We begin with the second element because Appellant erroneously argues in her brief that she

had no duty to retreat. The Penal Code provides that a person using deadly force in self-defense is

relieved of the duty to retreat if the other person is committing an offense of unlawful entry in the

actor’s habitation. See TEX .PENAL CODE ANN . § 9.32(b)(Vernon Supp. 2007). Appellant presented

-17- no evidence that Loustaunau had entered Appellant’s home unlawfully. To the contrary, the

evidence established that he was a guest in her home at the time of the shooting. Consequently,

Appellant had a duty to retreat from Loustaunau and she had the burden at trial to offer evidence

showing that a reasonable person in her situation would not have retreated. Appellant failed to

present any evidence in support of this element of self-defense. For this reason alone, the jury’s

rejection of Appellant’s self-defense claim is reasonable under both the legal and factual sufficiency

standards.

Reasonableness of Appellant’s Belief

The jury could also have found that Appellant did not reasonably believe deadly force was

immediately necessary to prevent Loustaunau’s imminent commission of sexual assault. The State

argues that the jury could have based its rejection of Appellant’s self-defense claim on the evidence

showing: (1) Appellant’s prior threats and violence against Loustaunau; (2) Appellant had a motive

other than self-defense for killing Loustaunau; (3) Appellant armed herself prior to the confrontation

for a purpose other than self-protection; (4) there were inconsistencies between Appellant’s version

of the events and the physical and medical evidence, and the testimony of other witnesses; (5)

Appellant’s flight and attempts to conceal the body and other evidence; and (6) Appellant’s failure

to call the police or summon medical assistance.

There is evidence demonstrating that Appellant had threatened to kill Loustaunau on more

than one occasion and had committed violent acts against him in the past. Her animosity appeared

to have been rooted in belief that their affair had ruined her life, he owed her money, and he was not

fairly distributing the proceeds from the business. Appellant and Loustaunau were arguing about

these same issues at the time of the shooting. The jury could have reasonably found, based on this

-18- evidence, that the shooting occurred as the result of Appellant’s perpetual anger and bitterness

toward Loustaunau over their personal and business dealings and she carried out her prior threats to

kill him.

The jury also heard evidence that Appellant retrieved the gun from the shelf, not for self-

protection, but because she often picked up a gun and threatened to kill herself in order to make

Loustaunau listen to her. This is precisely what she told Gutierrez. Based on this evidence, the jury

could have determined that Appellant had retrieved the gun to make Loustaunau do what she wanted

and not because she was afraid of him.

Several portions of Appellant’s story were inconsistent with other evidence presented in the

case. First, Appellant told Gutierrez and Dr. Gold that she and Loustaunau had been drinking at the

time of the shooting. Dr. Stern determined that Loustaunau had no alcohol in his system. Second,

Appellant’s version of the events did not include an explanation for the bruises, laceration, and

puncture wound which Dr. Stern found on Loustaunau’s arms. Third, Appellant told Gutierrez and

Dr. Gold that she and Loustaunau were startled when the gun accidentally discharged and they stared

at each other for a period of time before he charged at her and she fired two more shots. This

conflicted with the testimony of Appellant’s neighbor, Ramon Gaxiola, who heard what sounded like

three gunshots in rapid succession. Fourth, Appellant told Dr. Gold that Loustaunau stuck a bottle

of Viagra in her face when he was insisting on having sex with her, but the bottle of Viagra was

found inside the victim’s briefcase. Given these inconsistencies, the jury could have found that

Appellant’s claim of self-defense was not credible.

In addition to the foregoing evidence, we note that Appellant made contradictory statements

about her intent. She initially stated that the weapon accidentally discharged but later added that she

-19- shot Loustaunau because she believed he intended to sexually assault her. While a defendant is

certainly entitled to present inconsistent defenses, Appellant’s assertion that she accidentally shot

Loustaunau is inconsistent with her self-defense claim. See Saxton, 804 S.W.2d at 914. Given

Appellant’s contradictory statements about the shooting, the jury could have found that the self-

defense claim was simply not believable.

After allegedly shooting Loustaunau in self-defense, Appellant did not call 911 to summon

the police or EMS. Instead, she stayed up all night dismembering the body, and she cleaned nearly

all of the blood from the scene. Appellant buried the torso in the desert at some point before she

called Gutierrez early Saturday morning. Based on this evidence, the prosecutor argued to the jury

that Appellant intended to dispose of the rest of the body parts and join the Phelpses in Colorado,

but her plans were disrupted by Bo’s arrival on the scene and his surveillance of the house. The jury

could have reasonably inferred from the dismemberment of the body, the cleaning of the crime

scene, and Appellant’s disposal of the torso--which revealed the cause of death--that Appellant

murdered Loustaunau and did not kill him in self-defense. See Miller v. State, 177 S.W.3d 177, 184

(Tex.App.--Houston [1st Dist.] 2005, pet. ref’d)(defendant’s acts of burying gun and burning clothes

he was wearing supported jury’s rejection of self-defense); Valdez v. State, 841 S.W.2d 41, 43

(Tex.App.--Houston [14th Dist.] 1992, pet. ref’d)(defendant’s acts of changing clothes, hiding gun,

and disposing of the bullets supported jury’s rejection of self-defense); see also Bradley v. State, 960

S.W.2d 791, 803 (Tex.App.--El Paso 1997, pet. ref’d)(defendant’s mutilation of wife’s body showed

consciousness of guilt); Lee v. State, 866 S.W.2d 298, 302 (Tex.App.--Fort Worth 1993, pet.

ref’d)(defendant’s efforts to conceal decomposing body in his rent-house by pouring Pine Sol and

ammonia on the body three times a day showed a consciousness of guilt).

-20- When the evidence at trial is taken in the light most favorable to the verdict, it is legally

sufficient to support the jury’s determination that Appellant intentionally caused Loustaunau’s death

by shooting him with a firearm. Further, the evidence is legally sufficient to support the jury’s

rejection of Appellant’s self-defense claim.

Factual Sufficiency

When the evidence is viewed in a neutral light, there is some evidence that Appellant shot

Loustaunau because she believed he intended to sexually assault her. But the State’s evidence, when

taken alone, is not so weak that it does not support the jury’s finding of guilt beyond a reasonable

doubt. Further, the evidence supporting the claim of self-defense is not so strong that the jury’s

rejection of the defense does not meet the beyond-a-reasonable-doubt standard. Having found the

evidence both legally and factually sufficient, we overrule Point of Error One.

RULE OF OPTIONAL COMPLETENESS

In Point of Error Two, Appellant contends that the trial court abused its discretion by refusing

to admit the entirety of Dr. Gold’s memo into evidence. During direct examination by the

prosecutor, Dr. Gold testified at length about her first meeting with Appellant. During cross-

examination, the defense established that Dr. Gold had prepared a six-page memorandum

summarizing the session. Defense counsel offered the memo into evidence and the prosecutor raised

a hearsay objection. The trial court did not rule immediately and took the issue under advisement.

The defense continued the cross-examination:

[Defense counsel]: And, actually, I think you told the jury when Mr. Loustaunau was walking towards her he actually lunged towards her, didn’t he?

[Dr. Gold]: That’s the word she used, and it’s in my memo in quotation marks. Yes, that is the word she used.

-21- [Defense counsel]: Right. Well, that’s the information she provided to you, correct?

[Dr. Gold]: That’s correct.

[Defense counsel]: And then even after the first shot when she said it accidentally went off, that he continued to lunge at her, didn’t he? That’s what she said?

[Dr. Gold]: I believe so. I -- I would have to look at my notes to see exactly how that was worded.

[Defense counsel approached the witness].

[Defense counsel]: Is that correct?

[Dr. Gold]: It reads, She stated that she believed she told him not to come any closer or she would shoot him, and he lunged. She stated that she was looking down at the gun in her hand and not at [Loustaunau] when the gun fired. She recalls that [Loustaunau] continued to lunge.

On re-direct, the State questioned whether Appellant had also stated that she retrieved the weapon

before Loustaunau lunged. The prosecutor directed Dr. Gold’s attention to the second paragraph on

the third page of the memo and asked her to read the portion of the memo discussing when Appellant

got the gun:

[Dr. Gold]: She had mentioned to him that she had been planning to visit Oregon, which she had always longed to do, in the company of some friends. He told her that she was not going to go to Oregon without send-off sex. He produced a bottle of Viagra and stuck it in her face and told her that he was ready. She asked him to leave her alone, but he advanced upon her. She admitted that by this time they both had had far too much to drink. She told him to leave her alone, but he continued to push close to her. She indicated that she lost focus and flashed back to being 12 years old and assaulted by her father. She stated that she grabbed one of the weapons in her home and became aware that she had it in her right hand. She stated that she believes that she told [Loustaunau] not to come any closer or she would shoot him, and he lunged.

Citing the rule of optional completeness, defense counsel then asked that Dr. Gold be permitted to

read the next “sentence.” Dr. Gold read the rest of the paragraph:

-22- She stated that she was looking down at the gun in her hand and not at [Loustaunau] when the gun fired. She recalls that [Loustaunau] continued to ‘lunge’ at her, and she continued to fire. She stated that he had reached the place where she was standing and still upright when he said, Love you, babe, and then fell to the floor.

Later in the trial and immediately before defense witness Dr. Rodriguez-Chevres took the

stand, defense counsel offered Dr. Gold’s memo pursuant to Rule of Evidence 803(5). The State

objected that the memo was not admissible. The trial court took the issue under advisement and

Dr. Rodriguez-Chevres testified. His evaluation of Appellant included a review of Dr. Gold’s

memo. Similarly, Dr. Ramirez testified that he had reviewed Dr. Gold’s memo. During

Dr. Ramirez’s testimony, Appellant again offered the memo without articulating the basis of the

offer. This time, the trial court excluded the evidence. Prior to resting, the defense re-offered the

memo and for the first time cited the rule of optional completeness as a basis for the proffer. The

trial court refused to admit the memo.

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion

standard. Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005); Sauceda v. State, 129

S.W.3d 116, 120 (Tex.Crim.App. 2004). The trial court abuses its discretion only when the decision

lies “outside the zone of reasonable disagreement.” Apolinar, 155 S.W.3d at 186. Hearsay

statements are generally not admissible unless the statement falls within a recognized exception to

the hearsay rule. Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App. 2007). Rule 107 of the

Texas Rules of Evidence, also known as the rule of optional completeness, is one such rule. Id.

Rule 107 provides:

When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as

-23- when a letter is read, all letters on the same subject between the same parties may be given. ‘Writing or recorded statement’ includes depositions.

TEX .R.EVID . 107.

This rule is one of admissibility and permits the introduction of otherwise inadmissible

evidence when that evidence is necessary to fully and fairly explain a matter “opened up” by the

adverse party. Walters, 247 S.W.3d at 218. It is designed to reduce the possibility of the jury

receiving a false impression from hearing only a part of some act, conversation, or writing. Id. Rule

107 does not permit the introduction of other similar, but inadmissible, evidence unless it is

necessary to explain properly admitted evidence. Id. Further, the rule is not invoked by the mere

reference to a document, statement, or act. Id. The rule’s application is limited by the requirement

that the omitted portion must (1) be on the same subject and (2) be necessary to make it fully

understood. Sauceda, 129 S.W.3d at 123. And it is limited by Rule 403, which permits a trial judge

to exclude otherwise relevant evidence if its unfair prejudicial effect or its likelihood of confusing

the issues substantially outweighs its probative value. Walters, 247 S.W.3d at 219; see TEX .R.EVID .

403.

The State argues that the trial court properly excluded Dr. Gold’s memo because the entirety

of it was not on the same subject as the portion read aloud by Dr. Gold during direct examination.

Dr. Gold’s memo covered her entire conversation with Appellant which took place over more than

six hours. At the prosecutor’s request, Dr. Gold read only a small portion of the memo which

pertained to the moment of the shooting when Appellant retrieved the weapon and fired it as

Loustaunau lunged at her. The rest of the memo covers topics including how the appointment was

made through Gutierrez, Appellant’s history (personal, marital, work, financial, and mental-health

-24- history), Appellant’s relationship with Loustaunau, the events on the day of the shooting, Appellant’s

actions after the shooting, including the dismemberment, the involvement of attorney William Ellis

and the police, Dr. Gold’s decision to allow Gutierrez to take Appellant to her sister’s home, and the

admission of Appellant to a psychiatric hospital. Much of the memo was not on the same subject

as the portion read into evidence by the prosecutor. Therefore, it was not admissible under Rule 107.

Finding no abuse of discretion, we overrule Point of Error Two.

ADMISSION OF PHYSICAL EVIDENCE

In her third point of error, Appellant challenges the admission of numerous items and general

categories of evidence. She argues that all of the evidence was admitted in violation of Rules 401

and 403 of the Texas Rules of Evidence.

Appellant first complains about the admission of a video showing a news report about the

trial (Defense Exhibit 1A). This video, which was admitted only for appellate purposes, depicted

the “Basic Butchering” book which had not been admitted into evidence at the time of the news

story. Appellant’s request for a mistrial due to the news coverage was denied because none of the

jurors had actually viewed the news report. Because the video was not admitted into evidence,

Appellant’s argument is without merit.

Appellant also contends that the trial court erred in admitting “numerous photos of the

dismembered body parts” and “a gruesome videotape containing the head and the body parts

removed from the freezer.” Regarding the crime scene videos, Appellant stated that she had no

objection to their admission. Therefore, she has not preserved error for review. See

TEX .R.APP .P. 33.1. As for the photographs, Appellant does not identify any of them by exhibit

number, except for something she refers to as Exhibit 147. The trial court did not admit an exhibit

-25- 147. Appellant has not provided any record references where the “numerous photos of the

dismembered body parts” were offered and admitted over her objection. Rule 38.1(h) of the Rules

of Appellate Procedure requires the appellant to include appropriate citations to authorities and the

record. The record in this case is voluminous and many exhibits were admitted during the course

of the trial. We decline to scour the record in an effort to identify which exhibits might be referenced

in this point of error. We overrule the argument regarding the “numerous photos of the dismembered

body parts” as improperly briefed. See TEX .R.APP .P. 38.1(h).

Appellant next asserts that numerous weapons, including firearms, a machete, and a hacksaw

were seized from her home and introduced into evidence even though the State did not connect them

to the offense. She provides exhibit numbers of these weapons, but again, she does not provide any

record references where the exhibits were offered into evidence and admitted over her objection.

We overrule this portion of Appellant’s argument as improperly briefed. See TEX .R.APP .P. 38.1(h).

Even if Appellant had adequately briefed these issues, our review of the record reflects that defense

counsel affirmatively stated that he had no objection to the admission of the firearms, the machete,

and the hacksaw. See TEX .R.APP .P. 33.1.

Finally, Appellant argues the trial court erred by admitting “[p]hotographs from the desert

area where the head and other body parts were discovered . . . . See Exhibits No. 117-136.” First,

we note that the torso was found buried in the desert and the head and other body parts were found

in Appellant’s freezer. The exhibits Appellant references in her brief are not photos of the desert

area where the torso was discovered. Defense counsel affirmatively stated that he had “no objection”

to all but one of the photographs from the desert area where the torso was found. Counsel objected

that one of these photographs was cumulative. The alleged error pertaining to that photograph is

-26- waived because the objection made at trial does not comport with the argument raised on appeal.

For all of these reasons, we overrule Point of Error Three.

CHARGE ERROR

In Point of Error Four, Appellant raises several complaints regarding the court’s charge. She

first contends the evidence did not support the inclusion of an instruction on voluntary intoxication.

Appellate review of alleged error in a jury charge involves a two-step process. Abdnor v. State, 871

S.W.2d 726, 731 (Tex.Crim.App. 1994). Initially, we determine whether error occurred. Id. If so,

we then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32.

A trial court must charge the jury on the law applicable to every issue raised by the evidence.

See TEX .CODE CRIM .PROC.ANN . art. 36.14 (Vernon 2007)(jury charge of trial judge shall “distinctly

set[ ] forth the law applicable to the case”); Taylor v. State, 885 S.W.2d 154, 157 (Tex.Crim.App.

1994). Section 8.04(a) of the Penal Code provides that voluntary intoxication does not constitute

a defense to the commission of crime. TEX .PENAL CODE ANN . § 8.04(a). If there is evidence from

any source that might lead a jury to conclude that the defendant’s intoxication somehow excused his

actions, a voluntary intoxication instruction is proper. See Taylor, 885 S.W.2d at 158. Here,

Appellant told Gutierrez and Dr. Gold that she and Loustaunau had drunk “too much” just prior to

the shooting. She also made statements that the shooting was accidental. Because the jury might

have drawn an inference that Appellant mishandled the weapon due to her intoxication causing it

to accidentally discharge or that her intoxication otherwise excused her conduct, the trial court did

not err in giving this instruction.

Appellant also contends that the trial court erred by refusing to instruct the jury on the lesser-

included offense of criminally negligent homicide. In deciding whether a lesser-included offense

-27- should have been given, we apply a two pronged test. First, the offense must be a lesser-included

offense of the charged offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002). Second,

we must evaluate the evidence to determine whether a rational jury could find that if the defendant

is guilty, she is guilty of only the lesser offense. Id. The evidence must establish the lesser-included

offense as a valid rational alternative to the charged offense. Id.; Wesbrook v. State, 29 S.W.3d 103,

113-14 (Tex.Crim.App. 2000). The credibility of the evidence and whether it conflicts with other

evidence or is controverted may not be considered in determining whether an instruction on a

lesser-included offense should be given. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994).

Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty

only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391

(Tex.Crim.App. 1992). An accused is guilty only of a lesser-included offense if there is evidence

that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to

different interpretations, one of which rebuts or negates the crucial element. See Ramirez v. State,

976 S.W.2d 219, 227 (Tex.App.--El Paso 1998, pet. ref’d). That the jury may disbelieve crucial

evidence pertaining to the greater offense is not sufficient to warrant the submission of the

lesser-included offense submission to the jury; there must be some evidence directly germane to the

lesser-included offense to warrant such submission. See Skinner v. State, 956 S.W.2d 532, 543

(Tex.Crim.App. 1997).

The first prong is met because, as the State concedes, criminally negligent homicide is a

lesser included offense of murder. See Licon v. State, 99 S.W.3d 918, 928 (Tex.App.--El Paso 2003,

no pet.); Cardona v. State, 973 S.W.2d 412, 415 (Tex.App.--Austin 1998, no pet.). Turning to the

second prong, there must be evidence which would permit the jury to rationally find that if Appellant

-28- is guilty, she is guilty only of the lesser offense. A person commits criminally negligent homicide

by causing the death of another through criminal negligence. TEX .PENAL CODE ANN . § 19.05

(Vernon 2003). A person acts with criminal negligence, or is criminally negligent, with respect to

circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a

substantial and unjustifiable risk that the circumstances exist or the result will occur. TEX .PENAL

CODE ANN . § 6.03(d). The risk must be of such a nature and degree that the failure to perceive it

constitutes a gross deviation from the standard of care that an ordinary person would exercise under

all the circumstances as viewed from the actor’s standpoint. Id. Thus, criminally negligent homicide

requires a finding that the defendant ought to have been aware of the risk but failed to perceive it.

Before a charge on criminally negligent homicide is required, the record must contain evidence

showing an unawareness of the risk. Licon, 99 S.W.3d at 928, citing Mendieta v. State, 706 S.W.2d

651, 653 (Tex.Crim.App. 1986).

The evidence showed that Appellant was quite familiar with firearms as she possessed

approximately twenty firearms in her home and held a concealed handgun license. There is no

evidence that Appellant was unaware of the risk in arming herself with a loaded firearm during an

argument and pointing it in the direction of another person. In support of her argument that she was

entitled to an instruction on criminally negligent homicide, Appellant points to her statements

indicating that the weapon accidentally fired. Evidence of accidental discharge of a weapon does

not necessarily raise the issue of criminal negligence. See Thomas v. State, 699 S.W.2d 845, 850

(Tex.Crim.App. 1985); Gadsden v. State, 915 S.W.2d 620, 622-23 (Tex.App.--El Paso 1996, no

pet.). The evidence still must show that the defendant was unaware of the risk created by her

conduct under the facts of the case. Because there is no such evidence, the trial court acted properly

-29- by denying the requested instruction.

Appellant next argues that the trial court erred by denying her requested instruction on self-

defense. The instruction Appellant requested is not a self-defense instruction but rather is an

instruction on the justification of necessity under Section 9.22 of the Penal Code. This section

provides that conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

TEX .PENAL CODE ANN . § 9.22. When deadly force in self-defense is the conduct that is allegedly

“immediately necessary” under the first element of the necessity defense, the defense of necessity

does not apply. See Butler v. State, 663 S.W.2d 492, 496 (Tex.App.--Dallas 1983), aff’d, 736

S.W.2d 668 (Tex.Crim.App. 1987). Consequently, Appellant was not entitled to an instruction on

the defense of necessity.

Appellant also contends that the trial court erred by refusing her instructions on “right to arm

and seek an explanation,” “right to possess arms” and “right to continue shooting.” We have

previously held that a defendant is not entitled to such self-defense embellishments because they are

not recognized by or labeled as defenses by the Legislature. Castaneda v. State, 28 S.W.3d 216, 226

(Tex.App.--El Paso 2000, pet. ref’d)(“right to arms,” “right to shoot to scare,” and “right to pursue,”

are not recognized by the Penal Code as defenses; consequently, defendant is not entitled to these

additional self-defense instructions). Other courts have also held that the defendant is not entitled

-30- to these additional self-defense instructions because they are not recognized by the Legislature and

the self-defense instructions authorized by the Penal Code are sufficient to explain the defendant’s

right to use force and deadly force in self-defense. See Philen v. State, 683 S.W.2d 440, 444-45

(Tex.Crim.App. 1984)(defendant not entitled to “right to continue shooting” instruction); McGowan

v. State, 188 S.W.3d 239, 241-42 (Tex.App.--Waco 2006, pet. ref’d)(defendant not entitled to “right

to arm and seek explanation” instruction). The trial court did not abuse its discretion by refusing to

submit these additional self-defense instructions. Finding no error in the jury charge, we overrule

Appellant’s fourth and final point of error and affirm the judgment of the trial court.

August 21, 2008 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Publish)

-31-