In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
    ___________________________

         No. 02-18-00084-CR
    ___________________________

  ROBERT LEE THOMPSON, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 271st District Court
           Wise County, Texas
        Trial Court No. CR19503


   Before Gabriel, Kerr, and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                   I. Introduction

      A jury found Appellant Robert Lee Thompson guilty of aggravated assault with

a deadly weapon, assessed his punishment at seven years’ confinement, and

recommended probation. See Tex. Penal Code Ann. § 22.02(a)(2). The trial court

suspended the sentence; placed Appellant on community supervision for eight years;

and as a condition of his community supervision, ordered Appellant to serve sixty

days in jail on the weekends. In five issues, Appellant argues that the trial court

abused its discretion by failing to grant a mistrial on allegedly improper jury argument,

erred by allowing a reasonable doubt instruction in the charge and by failing to add

“no duty to retreat” language to the application portion of the charge, and abused its

discretion by admitting two exhibits that allegedly constituted improper impeachment

and that contained hearsay. Because we hold that the trial court did not abuse its

discretion or commit reversible error with regard to any of the five issues raised by

Appellant, we affirm.

                                   II. Background

      The events in question took place on a property located in Paradise, Texas.

The record reflects that the property had several “living structures” on it, including a

camper and three mobile homes. The residents of the property included Rhonda

Deering, her brother, her mother, and her boyfriend Douglas Robinson Jr. (who was

referred to as Wayne).

                                           2
      During the afternoon on August 23, 2016, Rhonda rode with her cousin Tina

to pick up Appellant (who was Tina’s boyfriend), and the three of them went to a

funeral in Lake Worth. After the funeral, they picked up dinner and then stopped at a

convenience store where Appellant purchased a twelve-pack of Dr. Pepper and some

ice, believing that he could borrow an ice chest from Rhonda. The group then

returned to Rhonda’s camper around 10:30 p.m.

      When Rhonda went to retrieve the ice chest, Wayne came out of the outside

bathroom wearing only a pair of shorts and boxers and told Appellant that “he’s not

getting . . . nothing that belongs to [me]” and that he needed to leave.1 Appellant

continued to wait for the ice chest. Wayne then retrieved a twelve-gauge shotgun

from the camper and fired a round into the burn pit in the front yard. Wayne

attempted to scare or intimidate Appellant into leaving even though the shot Wayne

fired was in the opposite direction of Appellant. Appellant “mouthed a few words,”2

and Wayne put the gun back in the camper and returned to the porch unarmed.

      At that point, Appellant said to Wayne, “[W]hy don’t you come down here, big

boy[.]” Wayne jumped off the porch, approached Appellant, and attempted to put his

hand on Appellant’s shoulder to escort him to the truck to leave, but they both started


      1
       Wayne and Appellant had a strained relationship, and Rhonda’s parents had
previously told Appellant that he was not allowed on the property because some
money had gone missing on one occasion when he was present.

      Rhonda testified that it did not appear that Appellant was worried about
      2

Wayne’s firing the shotgun.

                                          3
fighting and ended up on the ground. Wayne and Appellant had each other in a

headlock, and Wayne kept saying, “[L]et me up,” because Appellant was on top of

Wayne. Appellant said, “[Y]ou’re dead,” or, “[T]oo late, you’re dead.” Appellant had

stabbed Wayne in the abdomen with a knife. Appellant then allowed Wayne to stand

up, and as soon as he did, his intestines came out of his body and fell into his hand.

As Wayne was walking away from Appellant and telling Rhonda that he needed to go

to the emergency room, Appellant stabbed Wayne in the back. Appellant then went

to his truck and left with Tina.

      Rhonda started driving Wayne to the hospital and called 911. The dispatcher

told her to stop at a specified intersection, and a medic and the police met her there.

An ambulance transported Wayne the rest of the way to the hospital where he

underwent surgery for his life-threatening injuries.3 At 11:45 that evening, Rhonda

wrote out a statement for the police describing the events that had transpired on the

property.

      Two officers—Investigator John Polhemus Jr. and Lieutenant Pat Golden—

met with Appellant after midnight to get his side of the story, which changed several

times. During the State’s case in chief, Investigator Polhemus recounted the various

stories that Appellant had told them. Appellant initially said that he and Wayne were

in a physical fight “that went to the ground” and that when Wayne stood up, it


      3
       The record revealed that in addition to a small stab wound to his back, Wayne
had sustained two lacerations to the duodenum (upper colon).

                                          4
appeared that he had been stabbed; Appellant claimed that he did not know how

Wayne had been stabbed. Appellant next claimed that Wayne had a knife that was

out and that he had been stabbed while they were struggling on the ground.

Appellant provided another version that was impossible to follow. Appellant then

gave a version in which he said that he had his hand on Wayne’s knife and felt it go

into Wayne’s torso while they were fighting. Throughout the interview, Appellant

maintained that he did not bring the knife with him, but toward the end of the

interview, Appellant admitted that he took a knife with him when he left the scene

and that he threw it into a pasture as he and Tina were driving away. Appellant

initially said that he did not stab Wayne a second time, but Appellant later admitted

that he had stabbed Wayne in the back while Wayne was walking away.

      Another officer took pictures of some scrapes on Appellant’s elbows and knees

but did not call for a medic because none of the scrapes were serious or in need of

treatment. Investigator Polhemus opined that the scrapes, as well as the road rash on

Appellant’s elbows and knees, were more consistent with rolling around on the gravel

in the driveway than with defensive injuries (i.e., injuries sustained from trying to

protect himself).

      A warrant was ultimately issued, and Appellant was arrested. Investigator

Polhemus testified that Appellant admitted during a post-arrest interview that he

owned the knife at issue and that he had brought it with him on the night when he

stabbed Wayne.

                                         5
      At trial, Appellant testified that he had always carried a three-inch Winchester

knife. Appellant testified that on the night in question, Wayne was not acting normal.

Appellant said that he was scared for his life when Wayne came out of the camper

with the shotgun. But Appellant admitted that after Wayne had fired the shotgun and

had put it away, he told Wayne, “[L]et’s settle it like big boys do.” Appellant testified

that Wayne then came and hit him in the back of the head and that he responded by

hitting Wayne. They “went to the ground,” and Appellant jumped on top of Wayne.

Appellant believed that Rhonda had her gun at her side4 and that Wayne was reaching

up toward Rhonda. Appellant testified that he was scared for his life and that he had

“stuck” Wayne. Appellant opined that he had possibly stabbed Wayne twice while

they were rolling around on the ground. Appellant testified that he then let Wayne up

and that he did not stab him again. Appellant said that Wayne “charged back” at him

and that he (Appellant) responded by swinging again. Appellant testified that one or

both of the women announced that Wayne had been stabbed and that was when the

fight ended because Wayne’s “intestines were in his hand.” Appellant and Tina then

left. Appellant said that he threw the knife, which he claimed had no blood on it, out




      4
         Rhonda testified that she used to carry a nine-millimeter handgun in a holster
on her hip but that she did not have it on her hip on the night in question. Wayne
testified that Rhonda wore her holster with the handgun in it when they went to the
back of the property to shoot, which happened very seldom; Wayne said that Rhonda
did not wear it on a daily basis. Tina and Appellant testified that Rhonda had the gun
in a holster on the night in question.

                                           6
the window of the truck as they drove away because he was scared to death and did

not know what to do.

      Appellant explained that he had initially lied to the police about not having

brought the knife with him because he was so scared and had never been interrogated

like that before. Appellant further explained that he did not tell the officers that

Rhonda had a gun on her person on the night in question because he was not asked

that question and because he was terrified of what he had done.

      After hearing the above evidence, the jury found Appellant guilty of aggravated

assault with a deadly weapon. This appeal followed.

                                 III. Jury Argument

      In his first issue, Appellant argues that the trial court abused its discretion by

failing to grant a mistrial based upon allegedly improper jury argument that occurred

during the guilt-innocence phase.

                A. The Complained-of Portion of the Argument

      The relevant portion of the State’s rebuttal is as follows:

      Can you possibly believe him?

             The first lie, I don’t know what happened. I don’t know. We
      were rolling around on the ground and got stabbed. Second one, well,
      Wayne came at me with a knife[,] and I grabbed his hand. And we were
      rolling around on the ground[,] and I guess he got stabbed. Okay. That
      doesn’t -- that doesn’t really make sense. Wayne had -- had the knife?
      Yeah, that -- Wayne had the knife. Where’s the knife now? I don’t
      know. Not until after he was arrested did he finally say it was his knife,
      it was his knife.


                                           7
       You cannot believe him. You don’t get self-defense when you
take a knife to a fistfight. This isn’t a gunfight. It was not immediately
necessary to protect himself. It’s got to be immediate. That’s the whole
crux. Life is important. Life is sacred.

       Now, and -- and -- and I’m not asking you -- you don’t -- you
don’t have to like Wayne. You don’t have to like Rhonda. You don’t
have to like their lifestyle. But you’ve taken an oath, and that is to follow
the law. And the law is clear. He’s not entitled to self-defense.

       THE COURT: Got two minutes.

       [PROSECUTOR]: Thank you, your Honor.

        He is absolutely not entitled to self-defense. Now, if you don’t
like Wayne and you think maybe Wayne somehow bears some
responsibility or some involvement, that’s fine. I certainly wouldn’t
quarrel with you. But the appropriate place to take that blame or responsibility is
then in the punishment part of the trial.

       [DEFENSE COUNSEL]: Your Honor, I’m going to object.
That’s improper argument to start talking about punishment during the
closing of a guilt/innocence. That’s absolutely improper.

        THE COURT: Ladies and gentlemen, first of all, what -- of
course, what the lawyers say is not evidence, and what the lawyers say is
not -- doesn’t have anything to do with the charge. And, of course, the
jury is -- is instructed that you’re not to in any way consider punishment
in determining your verdict.

       So please continue.

       [DEFENSE COUNSEL]: And, your Honor, because the law
requires me, I’m going to request a mistrial.

       THE COURT: Overrule the objection. [Emphasis added.]




                                        8
                                B. Standard of Review

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable deduction

from the evidence; (3) answer to opposing counsel’s argument; or (4) plea for law

enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Felder v.

State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992).

      When a trial court sustains an objection and instructs the jury to disregard

improper argument but denies a defendant’s motion for a mistrial, the issue is whether

the trial court abused its discretion by denying the mistrial. Hawkins v. State, 135
S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme

circumstances: when the improper argument causes incurable prejudice—that is, the

argument is “so prejudicial that expenditure of further time and expense would be

wasteful and futile.” Id. at 77; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim.

App. 2003). In determining whether a trial court abused its discretion by denying a

mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial

effect); (2) curative measures; and (3) the certainty of conviction absent the

misconduct. Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) (op. on reh’g).

                                   C. Applicable Law

      It is generally improper for the State to comment on punishment during the

guilt-innocence stage of the trial. See McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim.

                                            9
Ohio App. 1976); Cherry v. State, 507 S.W.2d 549, 549 (Tex. Crim. App. 1974). However,

not every reference to punishment at the guilt-innocence stage is improper. Wright v.

State, 178 S.W.3d 905, 930 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (citing

Mann v. State, 718 S.W.2d 741, 744 (Tex. Crim. App. 1986)).

                                    D. Analysis

      Here, even if we were to assume that the complained-of remark was improper,

we disagree with Appellant’s position that the trial court’s curative measures were

“wholly inadequate.” In determining the severity of the misconduct, we look at the

magnitude of the prejudicial effect and whether the misconduct was extreme or

manifestly improper. See Hawkins, 135 S.W.3d at 77. In the case before us, the

prosecutor’s complained-of argument, on its face, did not suggest that the jury should

disregard the facts of the case, nor—contrary to Appellant’s argument—did it tell the

jury that it should not consider Appellant’s claim of self-defense until the punishment

phase of the trial. Instead, throughout the State’s closing arguments, the prosecutors

focused on the testimony provided by the witnesses and asked the jury to determine

the credibility of Appellant’s various versions of what had occurred on the night in

question. On this record, we conclude that the severity of the alleged misconduct was

neither extreme nor manifestly improper. See Jones v. State, No. 05-15-01012-CR, 2017
WL 3275995, at *9 (Tex. App.—Dallas July 25, 2017, pet. ref’d) (mem. op., not

designated for publication) (concluding that the severity of the prosecutor’s



                                          10
misconduct was neither extreme nor manifestly improper when the prosecutor told

the jury to save its sympathy for punishment).

       As to the certainty of conviction absent the misconduct, Appellant argues,

“Had the self-defense argument of Appellant not been nullified by the comments

made by the [S]tate in closing arguments, the jury could have easily acquitted on the

issue of self-defense.” However, the record includes evidence that although Wayne

had initially fired a shotgun into a burn pit in the front yard (i.e., in the opposite

direction of Appellant), Wayne had returned the gun to the camper before the fight

with Appellant ensued. Because Wayne was unarmed when the two began engaging

in physical combat, Appellant was not justified in using deadly force against Wayne.

See generally Bundy v. State, 280 S.W.3d 425, 435 (Tex. App.—Fort Worth 2009, pet.

ref’d) (stating that appellant’s use of deadly force was not a justifiable response to

victim’s attempted punch, which was not deadly force). Thus, the facts—rather than

the prosecution’s argument—provided a basis for the jury to conclude that Appellant

did not act in self-defense.

       Finally, the trial court’s curative measures included instructing the jury (1) that

what the lawyers said was not evidence and (2) that they were not to consider

punishment in determining their verdict. Additionally, the jury charge for the guilt-

innocence stage of trial stated in part, “[I]n determining the guilt or innocence of the

Defendant, you shall not discuss or consider the punishment, if any, which may be

assessed against the Defendant in the event he is found guilty beyond a reasonable

                                           11
doubt.” Nothing in the record suggests that the jury failed to follow the trial court’s

instructions. See Jenkins v. State, 493 S.W.3d 583, 616 (Tex. Crim. App. 2016) (stating

that the jury is presumed to have understood and to have followed the trial court’s

instructions absent evidence to the contrary).

      On this record, we hold that the trial court did not abuse its discretion by

denying Appellant’s motion for mistrial.         See Jones, 2017 WL 3275995, at *10.

Accordingly, we overrule Appellant’s first issue.

                                   IV. Jury Charge

      In his second and third issues, Appellant challenges additions to and omissions

from the jury charge. Because these two issues utilize the same standard of review, we

set forth the standard only once and then address each issue in turn below.

                               A. Standard of Review

      We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In

reviewing a jury charge, we first determine whether error occurred; if not, our analysis

ends. Id.

      B. Inclusion of a Reasonable Doubt Instruction in the Charge Was
                                Permissible

      In his second issue, Appellant argues that the trial court reversibly erred when it

included a reasonable doubt instruction in the jury charge.




                                           12
                                      1. The Charge

      Page 7 of the jury charge contains the following:

      The prosecution has the burden of proving the Defendant guilty and it
      must do so by proving each and every element of the offense charged
      beyond a reasonable doubt and if it fails to do so, you must acquit the
      Defendant. It is not required that the prosecution prove guilt beyond all possible
      doubt; it is required that the prosecutor’s proof excludes all reasonable doubt
      concerning the Defendant’s guilt. [Emphasis added.]

                                    2. The Objection

      During the charge conference, Appellant objected to the inclusion of the last

sentence set forth above regarding reasonable doubt:

      [DEFENSE COUNSEL]: On Page 7 of the State’s jury instruction,
      second paragraph, when it talks about the prosecution has the burden of
      proving Defendant guilty, I believe that their final sentence it’s not
      required that the prosecution prove all -- prove guilt beyond all possible
      doubt -- it is required that the prosecutor’s proof excludes all reasonable
      doubt. That is attempting to define reasonable doubt for the jury, and I believe
      that language needs to be stricken, just that last sentence. Obviously the
      prosecution has the burden of proving the Defendant guilty, and it must
      do so by each -- by proving each and every element beyond a reasonable
      doubt as appropriate, but not that last line. He’s attempting to define
      reasonable doubt for the jury.

             THE COURT: Response?

             [PROSECUTOR]: Judge, I mean, that language has been in every
      charge. I -- I -- I don’t believe that it’s -- that is not the [Geesa]
      instruction that was initially approved by the Court of Criminal Appeals,
      which has now been disapproved by the Court of Criminal Appeals
      pertaining to [Geesa]. That’s just -- that’s an instruction that we’ve had
      since --

             [DEFENSE COUNSEL]: I don’t necessarily believe that that’s a
      legal cause to have that part of that instruction in there. Because that’s
      how we’ve always done it doesn’t make it appropriate.

                                             13
             [PROSECUTOR]: No, I understand that. I’m just saying I don’t
      think it is a -- it is not a definition. It is not an instruction. It is just --

              [DEFENSE COUNSEL]: If the prosecution wants to comment
      on that in his closing argument, I think it’s fair to do so. But to define it
      in the charge and try to shift the burden over to the Defense, I think that
      is attempting to find be[] -- beyond reasonable doubt, and there’s --
      obviously in direct contrast to what the law says, which it’s up to the
      jury’s province to define reasonable doubt for each and every person.

             ....

             THE COURT: Okay. I’m going to overrule. [Emphasis added.]

                                       3. Analysis

      Here, the sentence that Appellant complains of is not a definition but rather an

instruction. See Minor v. State, 91 S.W.3d 824, 828–29 (Tex. App.—Fort Worth 2002,

pet. ref’d). Moreover, the Texas Court of Criminal Appeals has previously reviewed

the exact sentence that Appellant complains of and has repeatedly held that the trial

court does not err by giving such an instruction. See Mays v. State, 318 S.W.3d 368,

389 (Tex. Crim. App. 2010); Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App.

2004). We therefore overrule Appellant’s second issue.

   C. Language Regarding “No Duty to Retreat” Was Not Required in the
                          Application Section

      In his third issue, Appellant argues that the trial court erred by failing to include

“no duty to retreat” language in the application paragraph of the jury charge, even

though the abstract portion of the charge contained that very language.



                                            14
                             1. The Charge

The jury charge contained the following:

                                    IV.

       Now bearing in mind the foregoing instructions, if you believe
from the evidence beyond a reasonable doubt, that the Defendant,
ROBERT LEE THOMPSON, on or about the 23rd day of August,
2016, in the County of Wise, and State of Texas, did then and there
knowingly or recklessly cause bodily injury to Douglas Robinson, Jr. by
stabbing Douglas Robinson, Jr. with a knife, and the Defendant did then
and there use or exhibit a deadly weapon, to-wit: a knife, during the
commission of said assault, then you will find the Defendant guilty of
the offense of Aggravated Assault with a Deadly Weapon.

      Unless you so find beyond a reasonable doubt, or if you have a
reasonable doubt thereof, you will find the Defendant not guilty.

                                    V.

        Upon the law of self-defense, you are instructed that a person is
justified in using force against another when and to the degree that he
reasonably believes the force is immediately necessary to protect himself
against the other person’s use or attempted use of unlawful force. The
use of force against another is not justified in response to verbal
provocation alone or if the actor provoked the other’s use of force.

       A person is justified in using deadly force against another if he
would be justified in using force against the other in the first place, as
above set out, and when he reasonably believes that such deadly force is
immediately necessary to protect himself against the other person’s use
or attempted use of unlawful deadly force.

      ....

        By the term “deadly force[,”] as used herein, is meant force that is
intended or known by the person using it to cause, or in the manner of
its use or intended use is capable of causing death or serious bodily
injury.


                                    15
       ....

        A person who has a right to be present at the location where the
deadly force is used, who has not provoked the person against whom the
deadly force is used, and who is not engaged in criminal activity at the
time the deadly force is used, is not required to retreat before using deadly force
to defend himself. If you find from the evidence that the Defendant was such a person,
or if you have a reasonable doubt thereof, in determining whether the Defendant
reasonably believed that the use of deadly force was necessary, you may not consider
whether the Defendant failed to retreat.

       When a person is attacked with unlawful deadly force, or he
reasonably believes he is under attack or attempted attack with unlawful
deadly force, and there is created in the mind of such person a
reasonable expectation or fear of death or serious bodily injury, then the
law excuses or justifies such person in resorting to deadly force by any
means at his command to the degree that he reasonably believes
immediately necessary, viewed from his standpoint at the time, to
protect himself from such attack or attempted attack with unlawful
deadly force. And it is not necessary that there be an actual attack or
attempted attack with unlawful deadly force, as a person has a right to
defend his life and person from apparent danger as fully and to the same
extent as he would had the danger been real, provided that he acted
upon a reasonable apprehension of danger, as it appeared to him from
his standpoint at the time, and that he reasonably believed such deadly
force was immediately necessary to protect himself against the other
person’s use or attempted use of unlawful deadly force.

        In determining the existence of real or apparent danger, you
should consider all the facts and circumstances in evidence before you,
all relevant facts and circumstances surrounding the use of force or
deadly force, if any; the previous relationship existing between the
Defendant and Douglas Robinson, Jr.; together with all relevant facts
and circumstances going to show the condition of the mind of the
Defendant at the time of the alleged offense. In considering such
circumstances, you should place yourselves in the Defendant’s position
at that time and view them from his standpoint alone.




                                         16
                                     VI.

       Now bearing in mind the foregoing instructions, if you believe from the
evidence beyond a reasonable doubt, that the Defendant, ROBERT
LEE THOMPSON, on or about the 23rd day of August, 2016, in the
County of Wise, and State of Texas, did then and there knowingly or
recklessly cause bodily injury to Douglas Robinson, Jr. by stabbing
Douglas Robinson, Jr. with a knife and the Defendant did then and there
use or exhibit a deadly weapon, to-wit: a knife, during the commission
of said assault, then you will find the Defendant guilty of the offense of
Aggravated Assault with a Deadly Weapon, but you further find from
the evidence, or you have a reasonable doubt thereof that, at the time of
the alleged offense, the Defendant reasonably believed that from the
words or conduct, or both, of Douglas Robinson, Jr., it reasonably
appeared to the Defendant, as viewed from his standpoint, that his life
or person was in danger and there was created in his mind a reasonable
expectation or fear of death or serious bodily injury from the use of
unlawful deadly force by Douglas Robinson, Jr., and that acting under
such apprehension and reasonably believing that the use of deadly force
on his part was immediately necessary to protect himself against Douglas
Robinson, Jr.’s use or attempted use of unlawful deadly force, he stabbed
Douglas Robinson, Jr., then you will find the Defendant not guilty of the
offense of Aggravated Assault with a Deadly Weapon as charged in the
Indictment.

                                    VII.

       If you find from the evidence beyond a reasonable doubt that at
the time and place in question the Defendant did not reasonably believe
that he was in danger of death or serious bodily injury, or that the
Defendant, under circumstances as viewed by him from his standpoint
at the time, did not reasonably believe that the degree of force actually
used by him was immediately necessary to protect himself against
Douglas Robinson, Jr.’s use or attempted use of unlawful deadly force,
then you should find against the Defendant on the issue of self-defense.
[Emphasis added.]




                                     17
                                    2. The Objection

      During the charge conference, Appellant requested that the trial court add

language regarding “no duty to retreat” to the application section:

      [DEFENSE COUNSEL]: I would ask that the State add in their
      application section the language including no duty to retreat. I saw it in
      the definition section, but I didn’t see it in the application section.

            [PROSECUTOR]: Judge, on the bottom of Page 4[,] I think it’s
      included in -- in -- I mean, I think it’s -- it’s in the instruction, and it is in
      --

             [DEFENSE COUNSEL]: It’s in the definition, but you don’t
      have it in the application.

            THE COURT:           So how are you proposing to word it, then,
      [defense counsel]?

             [DEFENSE COUNSEL]: That if the jury believes that Robert
      Thompson had a right to be present at the location where the force was
      used and he has not provoked the person against whom the force is used
      and he is not engaging in criminal activity at the time the force is used, it
      is not required of him to retreat before force -- before using force. And
      in determining whether an actor described by that section reasonably
      believes the above use of force was necessary, a finder of fact may not
      consider whether the actor failed to retreat.

             THE COURT: You want all of that in the application?

             [DEFENSE COUNSEL]: Yes, because I think that in this case,
      as far as the self-defense goes, I think that’s a very necessary application
      to the self-defense. If the jury believes that the Defendant was required
      to retreat, that goes against what the law says in the self-defense
      definitions. He has no duty to retreat if they find that he had a right to
      be there and he wasn’t committing criminal activity and he believed that
      the force was reasonably necessary.

            [PROSECUTOR]: I think -- I think they can just argue that. I
      mean, it’s in the charge. It’s in the instructions. I don’t think it would

                                             18
be necessary to be in the application paragraph. All that -- all that
language is already there on Page 4.

      THE COURT: As it -- as I understand the way you would want
to submit it, I think that could be confusing to the -- to the jury.

       [DEFENSE COUNSEL]: In applying the actual statute in the
law section where the Court is instructing the jury, this is how they apply
that law that the Court’s provided. Because the way that the jury charges
have always been constructed is definitions and application, and the
application is where the Court provides the -- the jury with the facts
applied to that statute. And that’s all I’m asking to do is have the Court
apply that -- those facts to that part of the statute which is included in
the definition section but not in the application section of this charge.

         ....

      THE COURT: Okay. Sorry. I just wanted to make sure. I’ll
deny that request as -- as you requested it --

         [DEFENSE COUNSEL]: I’m going to --

         THE COURT: -- that instruction.

         [DEFENSE COUNSEL]: -- ask for a running objection to that,
Judge.

         THE COURT: All right.

       [PROSECUTOR]: Judge, and I’m just citing to Morales versus
State, Texas Criminal Appeals 2011, 357 S.W.3d: No language in self-
defense statute is amended in 2000. Calls for determining as a general
matter whether a duty to retreat exists.

        I -- I haven’t read the case, but it seemed to imply that -- going to
the issue of what the jury has to make a determination, whether in fact
someone retreated or did not retreat. And I’m not going to object at
them -- the Defense telling them what the law is because that’s contained
in this.

         THE COURT: It’s in the instruction?

                                     19
             [PROSECUTOR]: Yes, sir.

             THE COURT: Okay. All right.

                                  3. Applicable Law

      The application paragraph explains to the jury in concrete terms how to apply

the law to the case’s facts. Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim. App.

2013). Preserved error in the charge’s application paragraph is subject to the usual

Almanza harm analysis. Vasquez v. State, 389 S.W.3d 361, 363 (Tex. Crim. App. 2012)

(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).

When the trial court gives a definition or an instruction on a theory of law in the

charge’s abstract portion, the application paragraph must (1) specify all of the

conditions to be met before the jury may convict under that theory, (2) authorize a

conviction under conditions specified by other paragraphs of the jury charge to which

the application paragraph necessarily and unambiguously refers, or (3) contain some

logically consistent combination of those other paragraphs. Id. at 367 (quoting Plata v.

State, 926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds by Malik v.

State, 953 S.W.2d 234 (Tex. Crim. App. 1997)).           If the application paragraph

necessarily and unambiguously refers to another paragraph of the charge, then a

conviction is authorized; the trial judge need not sua sponte “cut and paste” that

definition into the application paragraph. Id.




                                           20
       Texas Penal Code sections 9.31(e) and 9.32(c) provide:

       A person who has a right to be present at the location where the force[,
       or deadly force] is used, who has not provoked the person against whom
       the force[, or deadly force] is used, and who is not engaged in criminal
       activity at the time the force[, or deadly force] is used is not required to
       retreat before using force[, or deadly force] as described by this section.

Tex. Penal Code Ann. § 9.31(e) (setting forth text of self-defense statute as shown by

the language quoted above, excluding the bracketed additions), § 9.32(c) (setting forth

text of deadly force statute as shown by all of the language quoted above). Further,

sections 9.31(f) and 9.32(d) state that in determining whether the person described in

sections 9.31(e) or 9.32(c) reasonably believed that the use of force, or deadly force,

was necessary, a factfinder may not consider whether he failed to retreat. See id.

§§ 9.31(f), 9.32(d).

                                      4. Analysis

       Here, Appellant initially argues in his third issue—under the heading labeled

“There was error”—that “this case did not contain deadly force” and that there was

error in the charge because it did not include the following instructions from the self-

defense statute:

       (e) A person who has a right to be present at the location where the
       force is used, who has not provoked the person against whom the force
       is used, and who is not engaged in criminal activity at the time the force
       is used is not required to retreat before using force as described by this
       section.

       (f) For purposes of Subsection (a), in determining whether an actor
       described by Subsection (e) reasonably believed that the use of force was


                                           21
       necessary, a finder of fact may not consider whether the actor failed to
       retreat.

See id. § 9.31(e), (f). Appellant, however, did not make that specific argument in the

trial court. During the charge conference, Appellant’s argument focused on the

absence of the “no duty to retreat” language from the application section.5

       Unless a particular statute places a sua sponte duty on a trial court to give an

instruction, the trial court generally need not instruct the jury sua sponte on

unrequested traditional defenses and defensive issues because they are not “law

applicable to the case.” See Tex. Code Crim. Proc. Ann. art. 36.14; Tex. R. App. P.

33.1; Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see also Oursbourn v.

State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008). A defendant who fails to ask for

an instruction on such issues, or to object to their exclusion, forfeits the alleged error

on appeal; thus we do not engage in an Almanza egregious-harm review. See Tex. R.

App. P. 33.1; Vega, 394 S.W.3d at 519; see also Posey v. State, 966 S.W.2d 57, 62 (Tex.

Crim. App. 1998); Almanza, 686 S.W.2d at 171–74.

       Because Appellant did not request the specific section 9.31(e) and (f)

instructions he argues on appeal should have been included, he did not preserve his

initial argument for review.        See Pruiett v. State, No. 05-12-00131-CR, 2013 WL


       Appellant reiterated at the end of the charge conference, “[O]ur additional
       5

objections are, one, adding in the application section of the charge the duty to not retreat, that
you don’t have a duty to retreat language, which was denied by the Court[,] and we
asked for a running objection to.” [Emphasis added.]


                                               22
1277861, at *2 (Tex. App.—Dallas Feb. 25, 2013, pet. ref’d) (mem. op., not

designated for publication) (holding that appellant did not preserve for appeal his

issue of whether the trial court erred by failing to include a self-defense instruction in

the jury charge).6

       Appellant argues in the remainder of his third issue—under the heading labeled

“The error was harmful”—that his “right to argue self-defense was jeopardized

because the lack of [] ‘duty to retreat’ language (which is specifically spelled out by the

statute) was not included in the application paragraph.” Appellant’s harm argument is

based on an alleged error that differs from the one that he asserted at the outset of his

third issue. We therefore begin our analysis of this argument by determining whether

the absence of the “no duty to retreat” language in the application paragraph

constitutes error.

       6
        Even if Appellant had preserved this argument for our review, he cannot show
harm because the record reflects that the trial court included instructions on deadly
force, which tracked almost word-for-word the self-defense instructions that
Appellant complains were absent from the charge. Moreover, the instructions
provided by the trial court were specific to the evidence presented on Appellant’s
defensive theory and his counsel’s closing argument that the use of deadly force, not
just “force” as specified in section 9.31(e) and (f), applied to the facts at hand:

       And the way you have to look at this, because the way the law requires,
       is you have to put yourself in [Defendant]’s shoes. Okay? Was
       [Defendant] justified in using deadly force when and to the degree
       [Defendant] reasonably believed that deadly force used against Wayne
       was immediately necessary. And of course I did some checking on the --
       on the Code and dealing with the deadly force. And you’re not gonna be
       surprised, but there’s no warning shot exemption to the law of deadly
       force. . . . [N]obody in here is going to deny that -- that using a gun or
       exhibiting a gun is -- is a use of deadly force.

                                            23
      The trial court was not required to repeat verbatim the “no duty to retreat”

language from the abstract portion of the charge in the application paragraph. As set

forth above, the jury charge contained detailed self-defense instructions and use-of-

deadly-force instructions in Section V, which was immediately followed by this

language in Section VI, “Now bearing in mind the foregoing instructions.” When read as a

whole, we conclude that the charge sets forth the law applicable to the case as

determined by the allegations in the indictment and the evidence presented at trial and

contains an application paragraph authorizing a conviction under conditions specified

by other paragraphs of the charge to which the application paragraph refers. See Reece

v. State, No. 05-09-00392-CR, 2010 WL 3946330, at *2 (Tex. App.—Dallas Oct. 11,

2010, pet. ref’d) (mem. op., not designated for publication) (holding that trial court

was not required to repeat in the application paragraph the statutory elements

excusing the duty to retreat because the application paragraph referred back to the

abstract portion of the jury charge in which the language from section 9.31(e) was set

forth); Holland v. State, 249 S.W.3d 705, 709 (Tex. App.—Beaumont 2008, no pet.)

(holding that the words “in light of the law on self[-]defense as instructed herein”

clearly incorporated into the application paragraph the self-defense instructions from

the abstract portion of the charge). Moreover, absent evidence to the contrary, we

presume the jury followed and understood the instructions. See Jenkins, 493 S.W.3d at

616; Holland, 249 S.W.3d at 709. We therefore overrule Appellant’s third issue.



                                          24
                    V. Admission of State’s Exhibits 28 and 29

      In his fourth and fifth issues, Appellant argues that the trial court abused its

discretion by admitting State’s Exhibits 28 and 29—videos of his interviews with

police before and after his arrest—over his objections that they were being used for

improper impeachment and that they contained hearsay.

                                A. Standard of Review

       We review a trial court’s evidentiary rulings under an abuse-of-discretion

standard. See Jenkins, 493 S.W.3d at 607. A trial judge’s decision is an abuse of

discretion only when it falls outside the zone of reasonable disagreement. Winegarner

v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be

upheld if it is correct on any theory of law applicable to the case. Gonzalez v. State, 195
S.W.3d 114, 126 (Tex. Crim. App. 2006).

       Generally,   the   erroneous     admission    or    exclusion    of   evidence    is

nonconstitutional error governed by rule 44.2(b) if the trial court’s ruling merely

offends the rules of evidence. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

App. 2001). “A criminal conviction should not be overturned for non-constitutional

error if the appellate court, after examining the record as a whole, has fair assurance

that the error did not influence the [factfinder], or had but a slight effect.” See Tex. R.

App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also

Solomon, 49 S.W.3d at 365. Moreover, a trial court’s erroneous admission of evidence

will not require reversal when other such evidence was received without objection,

                                            25
either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718

(Tex. Crim. App. 1998).

                                   B. The Evidence

      During Appellant’s direct examination by defense counsel, he testified that he

had talked to the police only once. On cross-examination, Appellant affirmatively

stated that he was not interviewed after he was arrested, and he repeatedly denied that

he had been interviewed by the police a second time. During rebuttal, the State

recalled Investigator Polhemus who had testified during the State’s case in chief about

Appellant’s two interviews. Investigator Polhemus identified the videos of the two

interviews: State’s Exhibit 29 contains the interview that Investigator Polhemus and

Lieutenant Golden conducted with Appellant shortly after midnight on August 24,

and State’s Exhibit 28 contains the post-arrest interview that Investigator Polhemus

conducted with Appellant on August 25. 7 When the State offered the two videos into

evidence, Appellant objected based on improper impeachment and hearsay. The trial

court admitted the videos over Appellant’s objections but granted him a running

objection.   The State played State’s Exhibit 29—the video of Appellant’s initial

interview, during which he ultimately admitted stabbing Wayne but repeatedly denied

that he had brought the knife with him to the scene. Although the State did not play



      7
       The State acknowledged at trial that these two exhibits “probably should have
[been] put . . . in [a] different order” because the video reflected in State’s Exhibit 29
took place before the video reflected in State’s Exhibit 28.

                                           26
State’s Exhibit 28 during the trial,8 the State did question Investigator Polhemus about

the second interview.      Investigator Polhemus testified that during the second

interview, which lasted approximately five minutes, Appellant admitted for the first

time that the knife belonged to him.

                                       C. Analysis

       Assuming, without deciding, that it was error for the trial court to admit State’s

Exhibits 28 and 29, Appellant cannot show reversible error. As set forth above, the

officer who interviewed Appellant both before and after his arrest testified without

objection during the State’s case in chief about the answers that Appellant gave in

response to questions about how the stabbing had occurred, including that Appellant

had denied ownership of the knife until the second interview. Because the substance

of the videos about which Appellant complains came into evidence without objection

during the State’s case in chief, Appellant cannot show reversible error from the

admission of the videos during the State’s rebuttal. See Vela v. State, No. 02-16-00330-

CR, 2018 WL 2248562, at *5 (Tex. App.—Fort Worth May 17, 2018, pet. ref’d)

(mem. op., not designated for publication) (holding that appellant could not

demonstrate reversible error because the video’s substance had come into evidence

without objection during officer’s testimony). Accordingly, we overrule Appellant’s

fourth and fifth issues.

       The record reflects that the jury sent out a note during their deliberations
       8

requesting to review State’s Exhibit 28, and it appears that the trial court made the
video available for the jury to watch.

                                           27
                                 VI. Conclusion

      Having overruled each of Appellant’s five issues, we affirm the trial court’s

judgment.

                                                  /s/ Dabney Bassel

                                                  Dabney Bassel
                                                  Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 15, 2019




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