Story, Allan Latoi

• Court: Court of Appeals of Texas
• Decided: December 18, 2015
• Docket: PD-1626-15
• Status: Published

Opinion

PD-1626-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/16/2015 1:46:35 PM December 18, 2015 Accepted 12/18/2015 1:36:16 PM ABEL ACOSTA Case No. PD- -15 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

ALLAII LATOI STORY Appellant

v.

THE STATE OF TEXAS Appellee

Petition from the Thineenth Court of Appeals No. 13-14-00038-CR affirming the judgment in Cause Number 2011-2499-Cl from the 19ft Judicial District Court of Mclennan County, Texas

APPELLAI\T'S PETITION FOR DISCRETIONARY REVIEW

Attorney for Appellant: Doyle L. Young State Bar No. 00797718

Law Office of Doyle L. Young, P.C. P.O. Box 2174 Waco, TX76703 Telephone: Q5$ 855-1 108 Fax: (800) 620-7961 Email : dyoung.law.waco@gmail.com IDENTITY OF JUDGE. PARTIES. Ai\D COUNSP.L

Trial Judge: The Honorable Ralph Strother

Appellant: Allan Latoi Story

Appellant's Appellate Counsel: Doyle L. Young Law Office of Doyle L. Young, P.C. P.O. Box 2174 Waco, TX76703

Appellant's Trial Counsel: Samuel Martinez 1105 Wooded Acres, Suite 200 Waco, TX767l0

Appellee: The State of Texas

Appellee's Appellate Counsel : Abel Reyna Criminal District Attorney 219 N. 6'h Street, Suite 200 Waco, TX7670l

Appellee's Trial Counsel: J.R. Vicha Chris Bullajian 219 N. 6tr Street, Suite 200 Waco, TX7670l TABLE OF CONTENTS

Identity of Judge, Parties, and Counsel .. I

Index of Authorities . 3

Statement Regarding Oral Argument . . ....... 4

Statement of the Case ...... 4 Statement of Procedural History ...

Grounds for Review 5

1. The Court of Appeals erred by not following precedent when it concluded that Appellant was not entitled to a self-defense instruction. (Slip Op. 13). This error is a sufficient reason for the granting of review under Tsx. R. App. Pnoc. 66.3(0.

2. The Court of Appeals erred by not following precedent when it refused to consider Appellant's appellate issue regarding a properly-made evidentiary request on the ground that the request was not made and thus not preserved. (Slip Opin. 6-7). This effor is a sufficient reason for the granting of review under TPx. R. App. Pnoc. 66.3(0.

Argument ..... 5

l. Ground No. 1 .......... 5

2. Ground No. 2 .... 8

Prayer for Relief 12

Certificate of Service 13

Certificate of Compliance 13

Appendix 14 INDEX OF AUTHORITIES

CASES

BuJkinv. State,207 S.V/.3d779,782 (Tex. Crim. App. 20Aq 5

Shaw v. State, 243 S.W.3 d 647, 657 -659 (Tex. Crim. App. 2001) 6

STATUTES AI\D RULES Tex. R. App. Pnoc. 66.3(0 ...... 4 STATEMENT REGARDING ORAL. ARGUMENT

Appellant waives oral argument.

STATEMENT OF THE CASE

Appellant Story was indicted for murder. At trial, the trial court refused

Appellant's request for a jury instruction on self-defense. The trial court also

refused to admit a CD recording of a police interview with Appellant made 3-4

hours after the stabbing in which Appellant asserted self-defense and which would

have supported the submission of a jury instruction on self-defense. The jury

convicted Appellant and assessed his punishment at life in prison.

The Court of Appeals affirmed the conviction, holding that Appellant was

not entitled to a self-defense instruction because there was no evidence that

Appellant reasonably believed the use of deadly force was immediately necessary

to protect himself at the time he stabbed the victim. This petition challenges that

holding.

The Court of Appeals also refused to consider Appellant's appellate issue

regarding the trial court's refusal to admit the CD recording of appellant's police

interview 3-4 hours after the stabbing. The Court of Appeals held that Appellant's

trial counsel did not preserve this issue. This petition challenges that holding.

STATEMENT OF PROCEDURAL HISTORY In an unpublished Memorandum Opinion delivered and filed November 19,

z}ls,the Thirteenth Court of Appeals affirmed the judgment of the trial court. A

Motion for Rehearing was not filed.

GROUNDS FOR REVIEW

1. The Court of Appeals erred by not following precedent when it concluded

that Appellant was not entitled to a self-defense instruction. (Slip Opin. t3). This

effor is a sufficient reason for the granting of review under Tnx. R. App. Pnoc.

66.3(0.

2. The Court of Appeals erred by not following precedent when it refused to

consider a properly-made evidentiary request on the ground that the request was

not made and thus not preserved. (Slip Opin. 6-7). This effor is a sufficient reason

for the granting of review under Tex. R. App. Pnoc. 66.3(0.

ARGUMENT

A. Ground No. 1 - The Cqurt of Appeals erred by not followins precedent when it concluded that Appellant was not entilled to a self-defense instruction. (SIip Opin. 13).

1. The Court of Appeals' holding

The Court of Appeals held that Appellant was not entitled to a self-defense

instruction because o'... there is no evidence that he [Appellant] reasonably

believed the use of deadly force was immediately necessary to protect himself at the time he stabbed Zachary;' (Slip Op. 13). In reaching this conclusion, the

Court of Appeals failed to follow precedent and overlooked significant facts.

2. The controlling precedent

The Court of Appeals did correctly state the controlling precedent: an

appellate court must view the evidence in the light most favorable to the

defendant's requested instruction." (Slip Op. 11, quoting Buftinv. State,207

S.W.3d 779,782 (Tex. Crim. App. 2006). But the Court of Appeals did not

follow this precedent.

3. The evidence

Appellant did not testiff at his trial. There were two witnesses to the fatal

fight befween Appellant and the victim and they did testiff.

a. Witness number one The Court of Appeals accepted and followed the testimony of Joyce Akers.

Her account of the fatal fight indicated that the combatants had separated before

Appellant approached the victim and stabbed him. (III R.R. at 38-39; 49-50). This

testimony ostensibly supports the Court of Appeals' conclusion that Appellant did

not reasonably believe that the use of deadly force was immediately necessary to

protect himself from the victim.

b. Witness number 2 But the Court of Appeals overlooked the testimony of Rene Davis, the other

witness to the fight, and her testimony does provide enough evidence to require the

self-defense instruction to be given.

Under Texas law, evidence is sufficient to require a jury instruction if there

is some evidence, from any source, from which a jury could rationally infer that

the element is true, i.e. in the instant case, that Appellant did reasonably believe

that the use of deadly force was immediately necessary. Shaw v. State,243 S.W.3d

647,657-658 (Tex. Crim. App. 2007). Rene Davis' testimony did provide

sufficient evidence from which a jury could rationally infer that Appellant did

reasonably believe that the use of deadly force was immediately, particularly if the

Court of Appeals had correctly applied the precedent of viewing the evidence in

the light most favorable to the defendant's requested admission.

Specifically, Rene Davis testified that she and Appellant were in a heated

argument, into which the victim, her brother, inserted himself. The victim punched

Appellant. Rene joined in the assault on Appellant and Appellant was knocked to

the ground. (IV R.R. at 33-34). The victim and Rene were standing up over

Appellant and hitting him. (IV R.R. at 35). Rene was hitting Appellant with a

stick as thick as her wrist and2-3 feet long. (IV R.R. at34-35,52). She testified

that it was a big stick. (IV R.R. at 52). At some time during this beating of Appellant, Rene saw blood on the victim and she and the victim allowed Appellant

to get up off the ground. (IV R.R. at 36).

4. Conclusion

Viewing the evidence in the light most favorable to the defendant's

requested submission, there is some evidence from which a jury could rationally

infer that Appellant reasonably believed that the use of deadly force was

immediately necessary to protect himself from his attackers. Therefore, the Court

of Appeals erred regarding the facts when it concluded that there was no evidence

that Appellant reasonably believed the use of deadly force was immediately

necessary and the Court of Appeals did not follow precedent when it held that

Appellant was not entitled to the jury instruction regarding self-defense.

B. Ground No.2 - The Court of Appeals erred by not followins precedent when it refused to consider Appellant's anpellate issue regarding a properlv-made evidentiarv request on the ground that the request was not made and thus not preserved. (Slip Opin. 6-7).

1. The Court of Appeals'holding

The Court of Appeals held that Appellant's request for admission of a recorded

interview with Appellant made by Officer Ireland 3-4 hours after the stabbing (the

Ireland CD) on the ground that it rebutted the State's emphasis that Appellant

concocted his assertion of self-defense weeks after the stabbing was not preserved

for appeal because Appellant did not make that request in the trial court. Therefore, the Court of Appeals did not consider this appellate issue. (Slip Opin. 6-

7). In doing so, the Court of Appeal's opinion demonstrates a misreading of the

Reporter's Record and a misunderstanding of the facts stated in it. These mistakes led to the erroneous holding.

2. The facts

The Court of Appeals misunderstood an exchange between the trial judge and

Appellant's trial counsel. There are several salient background facts that must be

recited before turning to this exchange.

Officer Ireland's interview of Appellant3-4 hours after the stabbing, which

occurred in the back of his patrol car, was recorded (III R.R. at 65-67). In this

interview, Appellant asserted that he had defended himself in the fight against

Rene Davis and the victim. (Defense Exhibit I at 3:55:00 - 3:58:35). Appellant's

trial attorney offered the CD as impeachment evidence to rebut the impression

Officer Ireland left with the jury that Appellant was uncooperative at the time of

his arrest. (III R.R. at 69-70). The court sustained the State's hearsay objection.

(III R.R. at70).

During the cross-examination of Rene Davis, one of the witnesses to the fight,

the State laboriously created the impression that Appellant and Renee Davis

concocted the assertion of self-defense during Rone Davis' four visits to Appellant

at the jail in the weeks after the stabbing. (IV. R.R. at 43-51). Appellant's attorney made an offer of proof regarding the proffered testimony

of police detective Steve January, who interviewed Appellant on the night of the

stabbing but after Officer Ireland's interview. (IV R.R. at93-95). Appellant's

attorney told the trial judge that the reason for this offer of proof related to

January's interview of Appellant "and it's about just the investigation in general

which requires going into the recording," i.e. the Ireland CD. (IV R.R. at 93).

January said that the issue of self-defense came up during his interview of

Appellant. (IV R.R. at 94). lnresponse to questions from Appellant's attomey,

January said that he did collect the video and audio from the police car cameras.

(IV R.R. at95). This included the Ireland CD. Appellant's attorney asked January

if he had talked to Officer Ireland on the evening of the stabbing and January said

that he did. (IV R.R. at 94-95). There was no reference to any CD recording of

January's interview of Appellant.

Appellant's afforney then offered January's testimony as impeachment of the

State's implication that Appellant and Rene Davis concocted the self-defense

theory. GV R.R. at 96).

The trial judge then said, "And there was also the audio recording of your client

in the back of the patrol car," i.e. the Ireland CD. (IV R.R. at 96). This indicates

that the trial judge was thinking that the Ireland CD was also relevant impeachment

evidence regarding the State's implication of concoction. In response, Appellant's

10 attorney asserted that Ireland's interview with Appellant would be highly relevant

because Appellant gave a statement to Ireland at that time (IV R.R. at 96-97),i.e.

not several weeks later while talking to Rene Davis at the jail. It appears that the

fair interpretation of Appellant's counsel's words are that, in light of the offer of

January's testimony to rebut the State's implication that Appellant and Rene Davis

concocted the self-defense theory weeks after the stabbing, the Ireland CD would

also be relevant and should be admitted. Then the discussion continued:

MR. MARTINEZ: .. . I think also the CD could be entered as far as that

impeachment as far as the officer's impression he left.

TFIE COURT: Well, it's still hearsay, and you can't get into it. I'm not

going to admit it. (IV R.R. at 97).

3. Conclusion

It appears clear that Appellant's attorney and the trial judge thought this

discussion was about admitting the Ireland CD as evidence to rebut the State's

assertion of concoction. (Further, Appellant's attomey also urged admission of the

Ireland CD to rebut Ireland's assertion that Appellant was uncooperative when

arrested.)

Further, it appears clear that the "it" the judge is not going to admit is the

Ireland CD which he and Appellant's counsel had just been discussing.

ll The Court of Appeals misunderstood this exchange between the trial judge and

Appellant's attorney, thinking that it referred to the proffer of Detective January's

testimony regarding his interview of Appellant on the night of the stabbing.

This led the Court of Appeals to its error - it concluded that Appellant's trial

attorney did not request admission of the Ireland CD for the purpose of rebutting

the State's suggestion of concoction. Based on this erroneous conclusion, the

Court of Appeals then erroneously held that Appellant did not preserve this issue

for appeal. Therefore, the Court of Appeals did not consider it, which is a failure to

follow precedent.

PRAYER FOR RELIEF

Regarding GroundNo. l, Appellant requests that the Court of Criminal

Appeals reverse the judgment of ooGuilty" and remand this case to the trial court for

a new trial.

Regarding Ground No. 2, Appellant requests that the Court of Criminal

Appeals reverse the judgment of "Guilty" and remand this case to the trial court for

Respectfully submitted,

Law Ornrcr oF DoYLE L. YouNc, P.C.

/s/ Doyle L. You,nq

t2 Doyle L. Young State BarNo. 00797718

100 N. 6th Street, Suite 600 P.O. Box 2174 Waco, TX76703 (254) 855-1 108 phone (800) 620-796r fax dyoung. law.waco@gmail.com Attorney for Appellant

Certificate of Service

I hereby certify that a copy of this petition was served on the Mclennan County District Attorney's office, attn. Sterling Harmon, via the court's electronic filing system, on December 16, 2015. I further certifu that on the same date a copy of this document was mailed via Certified Mail, Return Receipt Requested, to Appellant Allan Latoi Story, Beto Unit - TDCJ, 1391 FM 3328, Tennessee Colony, TX 75880. A copy of this document was also served the same day by Certified Mail, Retum Requested, on the State Prosecuting Afforney, P.O. Box 13406, Austin, TX 78711.

/s/ Doyle Youne Doyle Young

Certificate of Compliance

I hereby certiff that this petition complies with the word-count limit of Tpx. R. App. Pnoc. 9. The petition contains 2,499 words and complies with the typeface requirements and type style requirements in that it has been produced on a computer in conventional typeface using Word 2007 in Times New Roman 14- point font. The electronic file of this petition is free of computer virus and malware.

/s/ Doyle Young Doyle Young 13 APPENDTX

INDBX Court of Appeals opinion

14 NUMBER 13-14-00038-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

GORPUS GHRISTI - EDINBURG

ALLEN LATOI STORY, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 19th District Court of McLennan County, Texas.

MEMORANDUM OPINION

Before Ghief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Justice Perkes{ Appellant Allan Latoi Story appeals his conviction for murder, a first-degree felony,

enhanced by prior convictions. See Tex. PEnnl Cooe Aruru. gg 12.42(c),19.02(b)(1), (c)

1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has been transferred to this Court from the Tenth Court of Appeals in Waco, Texas. See Trx. Gov'r Coor Atttt. $ 73.001 (West, Westlaw through 2015 R.S.). (West, Westlaw through 2015 R.S.). A jury found appellant guilty and assessed

punishment at life imprisonment. By two issues, appellant argues the trial court erred:

(1) by excluding evidence of a recorded interview between appellant and a police officer;

and (2) by refusing to give a jury instruction on self-defense. We affirm.

!. BacxcnouND

Appellant was indicted for murder relating to the stabbing death of Zachary Davis.

Joyce Akers testified that she was a longtime friend of Rene Davis, Zachary's sister.

Akers was at Rene's apartment with Zachary, Rene, and appellant on the night of the

altercation. She recalled that Rene and appellant were arguing, when appellant said "if

you keep at it, I'm going to put my hands on you." Zachary responded "as long as I'm here, you're not going to put hands on her." Appellant told Zachary that if he interfered, he would kill him. Akers testified that appellant then left the room, and when he returned,

Zachary told him "whatever you went back there to get orwhateveryou callyourself doing,

you're going to have to use it." Appellant then walked out the back door, and Rene

followed as the two continued arguing. Akers testified that appellant then grabbed Rene

and lifted her up by her throat. At that time, Zachary intervened and struck appellant with

his fist, which resulted in a physical altercation between Zachary and appellant. Akers

recalled that, as Zachary and appellant were punching each other, appellant fell to the

ground and Rene started hitting appellant. Akers testified that the fighting stopped and

appellant stood up and walked toward the back door, while Zachary walked away from

the back porch and into the yard. As appellant was walking away, he dropped a knife

and picked it up. Akers stated appellant then approached Zachary who fell to the ground on his back. Akers testified appellant got on top of Zachary and stabbed him several

times, while she yelled "please stop stabbing him." After the stabbing, Rene ran into the

house and came back outside with a hammer. Appellant stood up and entered the apartment, while Zachary ran away from the apartment. Akers stated that neither

Zachary nor Rene had a weapon when they were fighting appellant.

Officer Jason lreland with the Waco Police Department testified that he responded

to the scene and observed Zachary on the ground gasping for breath. Zachary died

shortly after his arrival. Officer lreland learned that appellant was suspected of stabbing

Zachary and obtained his cell phone number. He attempted to locate appellant's cell

phone by determining its GPS location. For three to four hours, Officer lreland and other

law enforcement officials searched for appellant using "pings" from appellant's cell phone.

Officer lreland narrowed appellant's location to a residence within four to five blocks of

the crime scene. After confirming appellant was located in the house, an officer with a

canine called for him to come out. After two commands from the officer, appellant exited

the residence. Officer lreland did not observe any physical injuries, and appellant did

not request medical treatment. Appellant was arrested and taken to the county jail.

Appellant's counsel questioned Officer lreland outside the presence of the jury

concerning his interview with appellant. Officer lreland testified he talked to appellant in

his patrol car shortly after his arrest, and the interview was recorded. During the

interview, appellant stated "[Rene and Zachary]were jumping me and I defended myself."

Appellant claimed that he saw a hammer and some knives. Appellant stated he was on

3 the ground and "they hit me first." Appellant explained that "[Zachary] hit me and I fellto

the ground and [Rene] came over and kicked me."

Appellant's counsel moved to admit the recorded interview as impeachment of

Officer lreland's testimony "about [appellant's] voluntariness of coming out of the house

and also about injuries and so forth." Appellant's counsel also argued the recording was admissible under "Texas Rules of Evidence 107, the Rule of Optional Completeness."

The State objected that the video was hearsay and irrelevant. The trial court sustained

the State's objections.

Angelika McCallister, a crime scene technician for the Waco Police Department,

testified concerning photographs of the crime scene and the parties involved in the

altercation. McCallister explained that appellant had a number of superficial and non-life

threatening injuries, but that Rene did not exhibit any injuries.

Dr. Janice Townsend-Parchman, the Dallas County medical examiner, performed

Zachary's autopsy. She testified that Zachary suffered three stab wounds to the: (1)

front left shoulder, penetrating 4% inches; (2) liver, penetrating 4% inches; and (3) right

thigh, penetrating 3 inches. Dr. Townsend-Parchman concluded the three stab wounds

caused Zachary's death.

Rene testified during appellant's case-in-chief. Rene stated that after arguing

with appellant, she went outside with Zachary. Appellant followed them, and they

continued to argue. Rene testified Zachary punched appellant "becaLlse [appellant] acted like he was going to choke me." Rene denied that appellant picked her up by her

throat. During the altercation between appellant and Zachary, appellant ended up on the ground, and she began hitting appellant with a stick. Rene estimated that the stick was

two to three feet long and less than four inches in diameter. After she saw appellant stab

Zachary, she went inside the apartment to get a hammer. Rene was not sure if she hit

appellant with the hammer or not. Following the altercation, appellant ran into the

apartment and locked the door, while Zachary ran toward the parking lot.

On cross-examination, Rene testified that she gave a statement to police on the

night of Zachary's death, but did not mention the stick or the hammer because she was

scared. Rene acknowledged she visited appellant in the jail on four occasions following Zachary's death. She admitted appellant asked her to marry him during one of the visits and discussed his upcoming trialwith her.

The jury found appellant guilty and assessed punishment at life imprisonment.

This appeal followed.

ll. HelRsev

By his first issue, appellant argues "the trial court erred in excluding from evidence

an audio recording of an interview of appellant by a police officer that was made 3-4

hours after the stabbing of the victim." Specifically, appellant maintains the video

recording was not hearsay because it was not offered to prove the truth of the matter

asserted. We disagree.

A. Preservation

We must first address whether the issue raised on appeal comports with the

objection made at trial. To have evidence admitted over a hearsay objection, the

proponent of the evidence must specify which exception he is relying upon or how the evidence was not hearsay. Willover v. Sfafe, 70 S.W.3d 841, 84546 (Tex. Crim. App.

2002); see a/so Reyna v. Sfafe, 168 S.W.3d 173, 177 (Tex. Crim. App,2005) ("So it is

not enough to tell the judge that evidence is admissible. The proponent, if he is the losing

party on appeal, must have told the judge why the evidence was admissible.").

Additionally, to complain about a trial court's evidentiary ruling, a party must have first

made his complaint to the trial court in a manner that states the grounds for the desired

ruling with sufficient specificity to make the trial court aware of the complaint. See Tex.

R. App. P. 33.1(aX1XA). lf the trial court never has the opportunity to rule upon the proponent's appellate rationale, the argument cannot be raised on appeal. See Reyna,

168 S.W.3d at 178.

At trial, appellant's counsel argued that the recorded interview was admissible over

the State's hearsay objection to impeach Officer lreland's testimony "about [appellant's]

voluntariness of coming out of the house and also about injuries and so forth."2 On

appeal, appellant argues two theories for the admissibility of his statements to Officer

lreland. First, appellant maintains that the statements are admissible to show that "appellant began to say he was defending himself far earlier than the State had

deliberately misled the jury to think." Appellant did not make this argument to the trial

court with respect to his statements to Officer lreland. Rather, the argument was made with respect to appellant's later interview with Detective Steve January.3 Appellant does

2 Appellant's counsel also argued, at trial, that the recording was admissible under "Texas Rules of Evidence 107, the Rule of Optional Completeness," but he does not raise that argument on appeal. 3 Story's counsel argued to the trial court that the statements made to Detective January were admissible as impeachment of Rene's testimony "that they were getting their plan together and so forth as far as this case." 6 not challenge the trial court's ruling concerning the admissibility of his statements to

Detective January. Therefore, this argument is not preserved for appeal. See Reyna,

Second, appellant maintains on appeal his statements to Officer lreland were not

hearsay because they were offered "to show that Officer lreland's testimony that appellant

was uncooperative . . . was not correct." We will address this argument to the extent it

comports with the argument actually raised in the trial court. See Willover, 70 S.W.3d at

84H6. B. Standard of Review and Applicable Law

We review the trial court's decision to admit or exclude evidence under an abuse

of discretion standard . Martinez v. State,327 S.W.3d 727 ,736 (Tex. Crim. App. 2010);

Whipple v. Sfafe, 281 S.W.3d482,499 (Tex. App.-El Paso 2008, pet. refd). The trial court does not abuse its discretion unless its determination Iies outside the zone of

reasonable disagreement. Martinez,327 S.W.3d at 736; Whipple,281 S.W.3d at 499-

500. We will uphold a trial court's decision so long as it is supported by the record and

is correct under any theory of applicable law. De LaPaz v. Sfafe, 279 S.W.3d 336, 344

(Tex. Crim.App. 2009); Maftin y. Sfafe, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

Hearsay is defined by the rules of evidence as "a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted." Tex. R. Evto. 801(d). lt is well-settled that when the

accused does not take the stand, self-serving statements are generally not admissible.

Hafdahl y. Sfafe, 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other grounds by Cook v. Sfafe, 858 S.W.2 d 467 , 469470 (Tex. Crim. App. 1 993); see Reado

v. Sfafe, 690 S.W.2d 15, 17 (Tex. App.-Beaumont 1984, pet. refd).

[S]elf-serving declarations of the accused are ordinarily inadmissible in his behalf, unless they come under some exception, such as: being part of the res gestae of the offense or arrest, or part of the statement or conversation previously proved by the State, or being necessary to explain or contradict acts or declarations first offered by the State.

Singletary v. Sfafe,509 S.W.2d572,576 (Tex. Crim. App. 1974); see Allridge v. Sfafe,

762 S.W.2d 146, 152 (Tex. Crim. App. 1988);Davis v. Sfafe, 970 S.W.2d 758, 761 (Tex.

App.-Austin 1998, no pet.). "The theory behind the third exception is to prevent the fact

finder from being misled or perceiving a false, incorrect impression when hearing only a

part of an act, declaration, conversation or, especially, a writing." Reado,690 S.W.2d at

17. Under this exception, the proffered testimony may be admitted only if necessary to

prevent the jury from being misled or mistaken. ld.

C. Analysis

Appellant does not argue that his self-serving statements were admissible as being

part of the res gestae of the offense or arrest or that his statements were part of a

statement or conversation previously proved by the State. Rather, appellant maintains

that his statements to Officer lreland were admissible "to show that Officer lreland's

testimony that appellant was uncooperative . . . was not correct." To determine whether

appellant's self-serving declaration would be admissible under this theory, we must

decide whether such statements "were necessary to explain or contradict acts or declarations first offered by the State."4 See Srng/etary,509 S.W.2d at 576.

e While appellant argued at trial that the statements were admissible under Texas Rule of Evidence 613, he does not raise this argument on appeal. Further, rule 613 would have no application here, because I Appellant contends Officer lreland's testimony that he was uncooperative

necessitated admission of his entire recorded statement. Officer Ireland testified that it

took officers three to four hours to locate appellant and that appellant did not exit the

residence until an officer with a canine issued commands for appellant to come out.

Appellant's statements to Officer lreland focused on his assertions that he acted in self-

defense. Officer lreland offered no testimony concerning his conversation with appellant

or whether he acted in self-defense.

ln reviewing the record, we find no portion of Officer lreland's testimony that created a false impression or misled the jury. Therefore, we cannot conclude that

appellant's recorded statement was necessary to explain or contradict acts or

declarations first offered by the State. See Reado, 690 S.W.2d at 17; see also Allridge,

762 S.W.2d at 153 (explaining that "to adopt appellant's position would mean that all self-

serving statements by an accused would be admissible"). Accordingly, appellant's

statements to Officer lreland constitute inadmissible self-serving hearsay, and the trial

court did not abuse its discretion in excluding those statements. See Martinez, 327

S.W.3d at 736; Hafdahl,805 S.W.2d a|402. We overrule appellant's first issue.

appellant's statements do not constitute a prior inconsistent statement made by Officer lreland. See Willover v. State, 70 S.W.3d 841 , 846 n, 8 (Tex. Crim. App. 2002) (.Texas Rule of Evidence 613 allows into evidence (for impeachment purposes) proof of a witness's prior inconsistent statements (provided the proper predicate is established). Such prior inconsistent statements are considered hearsay and, unless they fall within some hearsay exception, they are admissible for impeachment purposes only (as opposed to substantive purposes)."). I lll. Junv lrsrRucnor

By his second issue, appellant argues the trialcourt erred by "den[ying] his request

for a jury instruction on self-defense because the issue was raised by the evidence." We

disagree.

A. Standard of Review

Appellate review of alleged jury charge error generally involves a two-step process.

Krsch v. Sfafe, 357 S.W.3d 645, 649 (Tex. Crim. App.2012); Ngo v. Sfafe, 175 S.W.3d

738,743 (Tex. Crim. App. 2005). First, we must determine whether error occurred.

Wooten v. Sfafe,400 S.W.3d 601,606 (Tex. Crim. App.2013). lf there iserrorin the

charge, we must then analyze whether sufficient harm resulted from the error to require

reversaf . ld.; Ngo,175 S.W.3d at744. lf error has been properly preserved, as in this

case, reversal is required if the error is "calculated to injure the rights of defendant,"

meaning there must be some harm. See Tex. Cooe Cntu. Pnoc. AruN. art. 36.19 (West, Westfaw through 2015 R.S.); SakT y. Sfafe, 287 S.W.3d 23,25-26 (Tex. Crim. App.

2009). The defendant must have suffered some actual, rather than merely theoretical, harm from the error. Reeyes y. Sfafe,420 S.W.3d812,816 (Tex. Crim. App.2013). We consider "'the entire jury charge, the state of the evidence, including the contested

issues and weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole."' Barron v. Sfafe, 353 S.W.3d 879,883 (Tex. Crim.App.2011) (quoting Almanza y. Sfafe,686 S.W.2d157,171 (Tex.

Crim. App. 1984)).

10 B. Applicable Law

The trial court is required to instruct the jury on statutory defenses, affirmative

defenses, and justifications whenever they are raised by the evidence. TEx. PrrunL CoDE

Aruru. $$ 2.03(d), 2.04(d) (West, Westlaw through 2015 R.S.); Walters v. State, 247 S.W.3d 204,208-09 (Tex. Crim. App. 2007). A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is

strong, feeble, unimpeached, or contradicted, and even when the trial court thinks the

testimony is not worthy of belief. Walters,247 S.W.3d at 209. A defensive issue is

raised by the evidence if there is some evidence, regardless of its source, on each

element of a defense that, if believed by the jury, would support a rational inference that

the element is true. See Shaw y. Sfafe, 243 S.W.3d647,657-58 (Tex. Crim.App. 2007).

ln determining whether a defensive instruction should have been given, "we view the

evidence in the light most favorable to the defendant's requested submission." Bufkin v.

Sfafe, 207 S.W.3d779,782 (Tex. Crim. App. 2006). The question of whether a defense is raised by the evidence is a sufficiency question, which we review as a question of law.

Shaw, 243 S.W.3d at 658.

ln order for a trial court to submit a self-defense instruction to the jury, a defendant

must produce sufficient evidence on each element to raise the issue. Tex. PeNnl CooE

Autt. $ 2.03 (West, Westlaw through 2015 R.S.). Sections 9.31 and 9.32 of the Texas

Penal Code provide in relevant part that a person is justified in using deadly force against

another "when and to the degree the actor reasonably believes the force is immediately

necessary . . . to protect the actor against the other's use or attempted use of unlawful

11 deadly force." /d. SS 9.31(a), 9.32(a). "Deadly force" means force that is intended or

known by the actor to cause, or in the manner of its use or intended use is capable of

causing, death or serious bodily injury." /d. S 9.01(3). "Serious bodily injury" means

bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of a bodily

member or organ. /d. S 1.07(aXa6). C. Analysis

Appellant did not testify. However, he argues he was entitled to a self-defense

instruction on the use of deadly force because he "was on the ground, being assaulted

by two adults, one of whom was hitting him with a stick that was 2-3 feet long and as

thick as a female's wrist, immediately before he stabbed [Zachary]." The trial court

denied the requested instruction, concluding there was "no evidence or testimony that

[appellant] reasonably believed that deadly force was necessary to protect himself against

somebody else's use of deadly-of unlawful deadly force."

The evidence, viewed in the light most favorable to the requested instruction,

reflects that appellant threatened Rene by saying "if you keep at it, l'm going to put my

hands on you." When appellant "acted like he was going to choke [Rene,]" Zachary hit

appellant with his fist, and the two began punching each other. Zachary and Rene were

both hitting appellant while he was on the ground, but at some point appellant was able

to get up and Zachary walked away from him. lt was at this time appellant approached

the unarmed Zachary and stabbed him with a knife and Zachary fell to the ground. While

12 Rene testified she previously struck appellant with a stick, the evidence shows the three

had already separated when appellant approached Zachary and stabbed him.

Assuming appellant was initially justified in using non-deadly force in response to

being hit by Zachary, there is no evidence that he reasonably believed the use of deadly

force was immediately necessary to protect himself at the time he stabbed Zachary. See

Bennett v. Sfafe, 726 S.W.2d 32, 37-38 (Tex. Crim. App. 1986) (holding that reasonableness of fear for a self-defense claim must be judged from the standpoint of the

accused at the "instant he responds to the attack"); Trammell v. State,287 S.W.3d 336,

341 (Tex. App.-Fort Worth 2009, no pet.) (concluding that the defendant was not entitled

to self-defense instruction in absence of immediacy of threat from victim); Oestrick v.

Sfafe, 939 S.W.2d 232,238 (Tex. App.-Austin 1997, pet. refd) (determining that the

defendant was not entitled to a self-defense instruction when victim had a baseball bat

but was walking away from defendant when defendant shot the victim).

We conclude appellant was not entitled to a self-defense instruction, and the trial

court did not commit error in denying the requested instruction. See Wooten, 400

S.W.3de at 606. We overrule appellant's second issue.

lV. Gonclusron

We affirm the judgment of the trial court.

GREGORY T. PERKES Justice

Do not publish. Trx. R. App. P. 47.2(b).

Delivered and filed the 19th day of November, 2015.