NO. 07-01-0105-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C JANUARY

28, 2002

______________________________ FELIPE ZAZUE TA RAMOS, Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 181 ST DISTRIC T COURT O F POTT ER COUNTY; NO. 42,486-B; HON. JOHN BOARD, PRESIDING

_______________________________ Before QUINN and REAVIS an d JOHNSON, JJ. Felipe Zazueta Ra mos (appellant) appeal s his convicti on for aggra vated assaul t. Throu gh two issues, appellant complains that th e trial court erred by 1) improperly admitt in g into evidence a shotgun and two shotgun shells and 2) de nying appellant’s reque st to i ncludea defini tion of “‘re ckles sly ’” in the ju ry c harge . We affirm. Background Appellant

wa s cha rged wi th aggrav ated assault. The evidence i llustrated t hat he and two co-workers beca me e ntan gled i n a br awl. T he si des d rawn co nsis ted o f th e two workers (a father-in- law and son-in-law) agai nst appellant. At one point or another, meat1 Rega rding the latt er objection, appellant apparently meant that if the evidence had proba tive

val ue, i t di d not out

weigh t he prej udice whi ch all egedly accompanied admission of t he evi dence. 2 hooks were br

andished by on e or

more of the combatants. Thereafter, appellan t left the buildin g, ventured to his car, r emoved a shotg un, returned to the scene, and shotthe sonin-law. Then, he left the state. Event uall y, law enforcement off icers arrested hi m in Ariz ona. While arresting him, they discover ed a shotgun and shells in his car . These items were returned to Texas along with appellant and admi tted into ev idence at h is trial. A jury subsequently

convicted appellant of the char

ged offense. Issue One In his first issue, appellant contend s that the tri al court err ed in admitting the shotgun and shells into evidence. This alleg edly const ituted error because “their

admission was neither material to a contested issu e nor probative of any fact of consequence to . . . guilt
or innocence.” More over , the i tems were not material or pr obative becaus e 1) “there w as never an issue of com mission of the shootin g” and 2) the State “ never show ed that either the shotgun . . . or . . . chambered shotgun she lls were the a ctual instrumentsused by [a]ppellant . . . .” W e overrule the contentions fo r the following reasons. As to the matter of show ing whet her the shotg un found was the shotgun used, this particular

ground of object ion was not uttered at tr ial. When the weapon and shells were tendered for admission, ap pellant simpl y stated: 1) “ob jection . . . as to relevancy,” 2) “I would object . . . th at it has n o pro bati ve valu e,” a nd 3) “. . . if it do es ha ve probative value

. . . I woul d object on thebasis that i t outweig hs any prej udicial effect it might hav e on my client.” 13

To preserv e e rror, one mus t state the gr ounds upon whi ch a ruling is sought with “sufficient

specificity to make the trial court aware of the com pla int, u nless the specific grounds were apparent from the conte xt.” T EX . R. A PP . P ROC
. 33.1(a)(1)(A). Merely uttering “relevancy,” “ no probat ive value,” and “. . . it outweighs any prejudicial effect it might have” is not sufficiently

specific to put

the trial court on notice that appellant actually questione d t he admissibil ity of the weapon and shells because they w ere not show n to have been the ones

used to shoot the victim at bar. Nor was

the nature of the obj ection
now before us apparent from the context of the circumstances. Thus, the complaint was waived

. Gonzal

ez v . State , 8 S.W.3d 640, 645-46 (Tex. Crim. App. 2000) ( holding that by timelyraising the matt er in the trial cour t would have provided the trial court and the prosecution an opportunity to remove thebasis of the objec tion). As to the contention tha t the firearm and shells were irrelevant because appellant did not di spute t he accu satio n that h e shot the v icti m, that ground too is not in herent in or reasonably deducible from the objections des cribed in the pr eceding parag raph. So, appellant

ag a in failed to pres erve the co mplaint. Fur thermore, appell ant provide s us neither argument ex plaining hi s contention nor au thori ty supporti ng it, contr ary to the dictate of appellate rul e and applicableauthority . T EX . R. A P P . P ROC
. 38.1(h) (obl igating
an appellant to pr

ovide the co urt wit h a clear an d concise a rgument for the c ontention made); Garcia v. St

ate, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994) (hol ding that the litigant must accompany his point w ith subs tantiv e analysis as opposed to conclusory statement). Instead , he mer ely sugg ests tha t because he did n ot dispute shooti ng the victim the State could not tender the w eapon and shells into evidence. Given the absence4

of expla nati on an d cita tion to au thor ity, this contention has also been waived. Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995); T EX . R. A PP . P. 38.1(h). Issue Two In his sec ond issue, appel lant claims t hat the trial court “deni ed [him] a fair an d impartial trial by not

instructi ng the jury

on a definition of ‘r

eckless.’”The instructi on “would have helped to explain [ his] mental sta te . . . during his self-defensive act or at least have given t he jury a legal reas on to justify [his] . . . actions . . .,” arg ues appellant. In other words, he sugges ts that “the act of self-defense may have been a ‘reckl ess act’ but even so, justified by

the perceived threat

to [him], a n d t h u s e x o n e r a t e d h i m fr o m t h e c r i m e . ” We overrule the point for the fo llowing reasons. First, that appellant

was entitled to an instruction on self-def ense was and is highly suspect. This is so b ecau se th e use of d ead ly for ce is justified only when retreat is unreasonable. T EX . P EN . C ODE A NN . §9.32(a)(2) (Vernon Supp. 2001) . Appellant hav ing left the scene, obtained a firear m, and returned to the scene after the skirmis h started and meathooks wer

e br andished hardly i llustrates that retreat w as either unr

easonable or unavailabl e. Second, in argui ng as he does, appellant attemptsto interjec t into the theor

y of sel fdefense the standard of rec klessness. That is, he believes that he could have recklessly acted in self-defense. Y et, one cannot acc identa lly or recklessly act in self-de fense. Johnson v. State , 915 S.W.2d 653, 659 (Tex. App. --Houston [1 4th 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 instructi on suggest ing otherw ise.5

Accordingl y, we affirm the judgment.

Per Curiam Do not publish

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