NO. 07-01-0105-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JANUARY 28, 2002

______________________________

FELIPE ZAZUETA RAMOS,

Appellant

v.

THE STATE OF TEXAS, 

Appellee

_________________________________

FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

NO. 42,486-B; HON. JOHN BOARD, PRESIDING

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

Felipe Zazueta Ramos (appellant) appeals his conviction for aggravated assault.

Through two issues, appellant complains that the trial court erred by 1) improperly

admitting into evidence a shotgun and two shotgun shells and 2) denying appellant’s

request to include a definition of “‘recklessly’” in the jury charge. We affirm.

Background

Appellant was charged with aggravated assault. The evidence illustrated that he

and two co-workers became entangled in a brawl. The sides drawn consisted of the two

workers (a father-in-law and son-in-law) against appellant. At one point or another, meat
1Regarding the latter objection, appellant apparently meant that if the evidence had probative

value, it did not outweigh the prejudice which allegedly accompanied admission of the evidence.

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hooks were brandished by one or more of the combatants. Thereafter, appellant left the

building, ventured to his car, removed a shotgun, returned to the scene, and shot the sonin-law. Then, he left the state. 

Eventually, law enforcement officers arrested him in Arizona. While arresting him,

they discovered a shotgun and shells in his car. These items were returned to Texas along

with appellant and admitted into evidence at his trial. A jury subsequently convicted

appellant of the charged offense.

Issue One

In his first issue, appellant contends that the trial court erred in admitting the shotgun

and shells into evidence. This allegedly constituted error because “their admission was

neither material to a contested issue nor probative of any fact of consequence to . . . guilt

or innocence.” Moreover, the items were not material or probative because 1) “there was

never an issue of commission of the shooting” and 2) the State “never showed that either

the shotgun . . . or . . . chambered shotgun shells were the actual instruments used by

[a]ppellant . . . .” We overrule the contentions for the following reasons.

As to the matter of showing whether the shotgun found was the shotgun used, this

particular ground of objection was not uttered at trial. When the weapon and shells were

tendered for admission, appellant simply stated: 1) “objection . . . as to relevancy,” 2) “I

would object . . . that it has no probative value,” and 3) “. . . if it does have probative value

. . . I would object on the basis that it outweighs any prejudicial effect it might have on my

client.”1 
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To preserve error, one must state the grounds upon which a ruling is sought with

“sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context.” TEX. R. APP. PROC. 33.1(a)(1)(A). Merely

uttering “relevancy,” “no probative value,” and “. . . it outweighs any prejudicial effect it

might have” is not sufficiently specific to put the trial court on notice that appellant actually

questioned the admissibility of the weapon and shells because they were not shown to

have been the ones used to shoot the victim at bar. Nor was the nature of the objection

now before us apparent from the context of the circumstances. Thus, the complaint was

waived. Gonzalez v. State, 8 S.W.3d 640, 645-46 (Tex. Crim. App. 2000) (holding that by

timely raising the matter in the trial court would have provided the trial court and the

prosecution an opportunity to remove the basis of the objection). 

As to the contention that the firearm and shells were irrelevant because appellant

did not dispute the accusation that he shot the victim, that ground too is not inherent in or

reasonably deducible from the objections described in the preceding paragraph. So,

appellant again failed to preserve the complaint. Furthermore, appellant provides us

neither argument explaining his contention nor authority supporting it, contrary to the

dictate of appellate rule and applicable authority. TEX. R. APP. PROC. 38.1(h) (obligating

an appellant to provide the court with a clear and concise argument for the contention

made); Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994) (holding that the

litigant must accompany his point with substantive analysis as opposed to conclusory

statement). Instead, he merely suggests that because he did not dispute shooting the

victim the State could not tender the weapon and shells into evidence. Given the absence
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of explanation and citation to authority, this contention has also been waived. Alvarado v.

State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995); TEX. R. APP. P. 38.1(h).

Issue Two

In his second issue, appellant claims that the trial court “denied [him] a fair and

impartial trial by not instructing the jury on a definition of ‘reckless.’” The instruction

“would have helped to explain [his] mental state . . . during his self-defensive act or at least

have given the jury a legal reason to justify [his] . . . actions . . .,” argues appellant. In other

words, he suggests that “the act of self-defense may have been a ‘reckless act’ but even

so, justified by the perceived threat to [him], and thus exonerated him from the crime.” We

overrule the point for the following reasons.

First, that appellant was entitled to an instruction on self-defense was and is highly

suspect. This is so because the use of deadly force is justified only when retreat is

unreasonable. TEX. PEN. CODE ANN. §9.32(a)(2) (Vernon Supp. 2001). Appellant having

left the scene, obtained a firearm, and returned to the scene after the skirmish started and

meat hooks were brandished hardly illustrates that retreat was either unreasonable or

unavailable. 

Second, in arguing as he does, appellant attempts to interject into the theory of selfdefense the standard of recklessness. That is, he believes that he could have recklessly

acted in self-defense. Yet, one cannot accidentally or recklessly act in self-defense.

Johnson v. State, 915 S.W.2d 653, 659 (Tex. App.--Houston [14th Dist.] 1996, pet. ref’d.);

Mock v. State, 848 S.W.2d 215, 219 (Tex. App.--El Paso 1992, pet. ref’d.). So, he was

not entitled to an instruction suggesting otherwise.
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Accordingly, we affirm the judgment.

Per Curiam

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